A. ETIN SINGHO and another, Appellants, and THE QUEEN, Respondent

072-NLR-NLR-V-69-A.-ETIN-SINGHO-and-another-Appellants-and-THE-QUEEN-Respondent.pdf


Etin Singho v. The Queen
303
[Court of Criminal Appeal]
1965 Present: Saosoni, C.J. (President), T. S. Fernando, J., andAlles, J.
A. ETIN SINGHO and another, Appellants, and THE QUEEN,Respondent
C. C. A. Appeal Nos. 64—65, with Applications Nos. 77-78S. C. 236—M. C. Horana, 382S9Evidence Ordinance—Section 27—“ Fact discovered ”.
At the trial of the 1st and 2nd accused on a charge of murder of one P, aprosecution witness Victor said he heard some cries and came up and thensaw the 1st accused with a blood-stained sword standing by the deceasedwho lay fallen. At the same time he saw the 2nd accused raising himself upfrom a bending position and dealing a blow with a club at the fallen deceased.He was unable to say at which part of the deceased’s body the blow wasdirected or whether it alighted on the body at all. Nor was he able to saywhat kind of a club it was. Club PI was pointed out to him and he wasasked whether it was something like that, and he said it was.
The deceased had 13 incised injuries and a non-grievous lacerated woundover the vertex of his head. His death was due to the incised injuries.
As against the 2nd accused the prosecution proved, in terms of section 27of the Evidence Ordinance, a part (PI7) of a statement he had made to thePolice. P 17 was in these terms :—
“ I left the club under a culvert which is on the estate road that leadsto the Padukka-Horana road.”
A police officer testified that club PI was recovered by him aa a result of P17.
The trial judge directed the jury thus :—
“ What he said was proved and the police officer went and found theclub. If you are satisfied that this is the club that was used—you seeVictor says that this is the club ; it is a factor to be used against the 2ndaccused. Victor says he saw a club like this, and the 2nd accused showedthis club and that is a factor you will take into consideration against theaccused.”
Held, that if the jury believed that the 2nd accused made the statement P17,all that was proved was that he had knowledge of the whereabouts of club PI.The fact discovered as a consequence of PI 7 was confined to that knowledgeon the part of the 2nd accused. There was no proof before the Court that PIwas in fact used in the assault on the deceased.
Held further, that the jury should have been told that the 2nd accused’sknowledge of the whereabouts of the club should not be treated by them aaan admission that he used that club to attack the deceased.
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T. S. FERNANDO, J.—Etin Singho v. The Queen
PPEALS against two convictions at a trial before the SupremeCourt.
Colvin R. de Silva, with {Miss) Manouri de Silva, /. S. de Silva and
K.Charavanamuttu, for the accused-appellants.
N. Tiltawela, Crown Counsel, for tho Crown.
Cur. adv. milt.
October 18, 1965. T. S. Fernando, J.—
At the conclusion of the argument on these appeals, the Court madeorder dismissing the appeal of the 1st accused-appellant but allowing theappeal of the 2nd accused-appellant, quashing his conviction and directinghis acquittal. We now set down below the reasons for our order :—
Both accused stood charged with and were convicted of the murderof a man called Peiris Singho. This man died a3 a result of a severeattack on him in the course of which he received some 13 incised injuriesand one other injury (injury No. 10) described as a lacerated wound,
2 inches long, scalp deep, over the vertex of the head. His death wasbrought about largely by the damage caused to his skull and brain bythe incised injuries. Injury No. 10 was a non-grievous injury andcould have made little, if any, contribution to the cause of his death.
Apart from some evidence of motive which really affected only thecase against the 1st accused, and a part of a statement made to thepolice by the 2nd accused, the prosecution relied solely on the evidenceof a witness of the name of Victor. Victor lived in a house about 75yards away from the scene of the offence and stated that at about6.45 a.m. on the day in question his attention was attracted by awailing cry and, on coming in the direction from which the cry appearedto have been raised, he saw the 1st accused with a blood-stained swordin his hand standing by the body of a fallen man. At the same time hesaw the 2nd accused raising himself up from a bending position anddealing at the fallen man a blow with a club which he had in his hands.He was unable to say at which part of the man’s body the club wasdirected or whether it alighted on the body at all. According to themedical evidence, injury No. 10 could have resulted even from a blowwith a sword if its blunt edge had alighted on the head of the deceased. -Victor went on to say that he addressed the 2nd accused and asked“ What are you doing, Harmanis 1” and that at that stage bothaccused persons prepared to leave the spot. Victor then addressedthem and said “ If you injure a man and leave him like this who isgoing to be responsible for the consequences ?” The second accusedthereupon replied “ We are going to the Police Station.”
T. S. FERNANDO, J.—Etin Singho v. The Queen
355
Counsel for the appellants raised three points which appeared to us toaffect the maintenance of the conviction of the 2nd accused. The first ofthese was a complaint in regard to the direction of the trial judge inrespect of part (P. 17) of a statement made by the 2nd accused andproved by the prosecution. It is reproduced below :—-
“ I left the club under a culvert which is on the estate road that leadsto the Padukka-Horana Road.”
A police officer testified that club PI was recovered by him as a result ofthis part of the 2nd accused’s statement. That P. 17 was admissibleunder section 27 of the Evidence Ordinance was not doubted, butcomplaint was made that the judge’s direction was capable of leading thejury to believe that the statement itself was of a confessionary nature. Itcould, in our opinion, have afforded at best some slight corroboration ofthe evidence of the sole witness, Victor. The judge omitted to make anyreference to P. 17 by the time he concluded his charge but, before thejurors left their seats in order to deliberate upon the verdict, his attentionwas drawn thereto in the presence of the jurors by Crown Counsel in thefollowing words :—
“ In regard to the evidence that had been led in terms of section 27-of the.Evidence Ordinance, if the jury believes that the 2nd accusedhad the club PI, the evidence as to the statement made by the 2ndaccused leading to the finding of the club PI would be admissibleagainst the 2nd accused.”
It must be mentioned that, when Victor was questioned in chief byCrown Counsel and asked what kind of club the 2nd accused had, hisreply was that he could not say what kind of club but only that it was aclub. Club PI was then shown to him and he was asked whether it wassomething like that and he replied in the affirmative to that question.We must point out, with respect, that Crown Counsel’s statement madeto the judge in the hearing of the jury was itself capable of misleading alistener. What the prosecution was trying to establish was that the 2ndaccused used club PI. Statement P. 17 was proved presumably towardsinducing in the jury a belief that he used that club. In the way CrownCounsel put it the admissibility of P. 17 was dependent on the jury’sbelief that the 2nd accused had club PI with him at the time of theoffence.
After Crown Counsel had made the statement reproduced above, thelearned judge addressed the jury thus :—
“ Then, gentlemen, the other matter is the finding of the club. Youwill remember the police officer said something which resulted infinding the club. What he said was proved and the police officer wentand found the club. Well, gentlemen, if you are satisfied that this isthe club that was used—you see Victor says that this is the club ; it isa factor to be used against the 2nd accused. Victor says that he saw aclub like this and the 2nd accused showed this club and that is a factorthat you will take into consideration against the accused.”
366
T. 8. FERNANDO, J.—Etin Singho v. The Queen
This direction coming, as it did, at the closing stage of the charge was inour opinion unfortunate and laid itself open to the complaint made bycounsel in relation to it. As it is by no means uncommon to find theprosecution in this Country making use of section 27 of the EvidenceOrdinance, we think that its proper scope should be carefully appreciated.We would in this connection draw attention to the observations of thePrivy Council in the Indian case of Kottaya v. Emperor 1 in relation tothis section :—
“ In Their Lordships ’ view it is fallacious to treat the ‘ fact discovered'within the section as equivalent to the object produced ; the fact dis-covered embraces the place from which the object is produced and theknowledge of the accused as to this, and the information given mustrelate distinctly to this fact. Information as to past user, or the pasthistory, of the object produced is not related to its discovery in thesetting in which it is discovered. Information supplied by a person incustody that ‘ I will produce a knife concealed in the roof of my house ’does not lead to the discovery of a knife ; knives were discovered manyyears ago. It leads to the discovery of the fact that a knife is con-cealed in the house of the informant to his knowledge, and if the knifeis proved to have been used in the commission of the offence, the factdiscovered is very relevant. But if to the statement the words beadded ‘ with which I stabbed A ’ these words are inadmissible sincethey do not relate to the discovery of the knife in the house of theinformant.”
If the jury believed that the 2nd accused made the statement P 17, allthat was proved was that he had knowledge of the whereabouts of clubPI. The fact discovered as a consequence of P 17 was confinedto that knowledge on the part of the 2nd accused. There was no proofbefore the Court that PI was in fact used in the assault on tho deceased.The jury should have been told that the 2nd accused’s knowledge of thewhereabouts of the club should not be used by them as an admission thathe used that club. We think there is substance in the argument that thejury might have been induced as a result of the direction given to themto use the fact of the 2nd accused’s knowledge of the whereabouts of aclub as indicative of an admission by him that he dealt a blow on thedeceased with that club.
The second point related to the absence of a direction that the evidenceagainst the 2nd accused was of a circumstantial nature. In our opinion,the evidence against both accused was purely circumstantial. Thelearned trial judge, on his attention being drawn thereto by CrownCounsel towards the close of the charge, directed the jury to approachthe case of the 1st accused as one dependent solely on circumstantialevidence and he then proceeded to direct them on the manner in whichsuch evidence has to be approached. As Victor had not seen even the2nd accused dealing a blow which actually alighted on the deceased, the
1 {1947) A. 1. It. (P. O.) at p. 70.
Aftidiyanse v. Dingiri Banda
987
jury should have been directed to approach the case against him too inthe same way. As it is, the jury may have been led to think that thejudge’s view was that the case against the 2nd accused was one of directevidence unlike that against the 1st accused.
The third point taken was in respect of the judge’s direction on thequestion of common intention. The evidence taken at its best againstthe 2nd accused was that he was seen dealing a blow with a club which,had it alighted on the deceased, could have produced injury No. 10, anon-grievous injury. He could therefore have been convicted on thocharge of murder only on the basis that, sharing in common with the 1staccused an intention to kill the deceased, he participated in the assaulton the deceased. The sole evidence in regard to their complicity in theattack on the deceased being that of Victor who on approaching thefallen deceased only saw the 1st accused standing by with a bloodstained sword and the 2nd accused dealing one blow’ with a club at thedeceased, it is difficult to appreciate w’hy the learned trial judge in hischarge, when dealing w’ith the question of common intention, came to useexpressions like the following :—(a) “ w’hen the 1st and 2nd accused metthe dead man ”, (6) “ if he (the 2nd accused) went with a man who wasarmed with a sw’ord to attack another man ”, (c) “do you think it islikely that these tw’o people went together to thrash the man ? ” and
“ if the two of them went together ”. The evidence did not excludein any way the two accused persons reaching the scene quite indepen-dently of each other. Even if this third ground of complaint stood alone,we think the conviction of the 2nd accused for the offence of murderwould have had to be quashed and a verdict that he was guilty only ofcausing simple hurt (section 314) substituted. The combined effect ofthe arguments on the three points relied on by counsel as stated abovemade it inevitable that the conviction could not be sustained and we,therefore, ordered his acquittal.
We saw no good reason to interfere with the conviction of the 1staccused and dismissed his appeal.
Appeal of 1st accused dismissed.
2nd accused acquitted.