A. KRISHNAPILLAI, Appellant, and THE QUEEN, Respondent

103-NLR-NLR-V-74-A.-KRISHNAPILLAI-Appellant-and-THE-QUEEN-Respondent.pdf


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H. In1 . G. FERNANDO, C.J.—JCriehnapillai v. The Queen
[Court of Criminal Appeal]
i968Present : H. N. G. Fernando, C.J. (President), SIrimane, J., andWijayatilake, J.A. KRISHNAPILLAI, Appellant, and THE QUEEN, RespondentC. C. A. 78 of 1968, wrrn Application 113S. C. 19/GS—31. C. MaUakam, 2577
Summing-up—Evidence Ordinance—Section 27—Scope—Non-direction.
Whenever a statement -which is proved under section 27 of the EvidenceOrdinence can reasonably lead the Jury to infor that a confession may havebeen made to a Police officer, the trial Judge should clearly warn <ho Jurythat tho law prohibits such an inference being reached.
Appeal against a conviction at a trial before the Supreme Court.
A. H. G. de Silva, Q.G., with K. Sivananthan, S. Sivarajasingham and(assigned) L. F. Ekanayake, for the accused-appellant.
S. A. Pullenayegum, Senior Crown Counsel, with Priyantha Perera,Crown Counsel, for the Crown.
Cur. adv. vidt.
November 28, 1968. H. N. G. Fernando, C.J.—
The appellant was by an unanimous verdict of the Jury convicted ofthe murder of one Punitjiawathy on 4th October 1967, and was sentencedto death by the learned trial Judge.
The evidence upon which the prosecution relied may be brieflysummarised as follows :—
The daughter of the deceased woman testified that the inmates of
her house were herself, her mother the deceased, and anotheryoung girl, and that some da3-s previously the accused and. another man had come to the house and had a conversation inthe course of which there was some disagreement between theaccused and the deceased. This testimony afforded someevidence of motive against the accused.
On tho night of 4th October 1967, the inmates had retired to sleep.
The mother slept on a bed on the verandah across whichapparently was a screen, while the daughter and the other girlwere sleeping inside the house. Some little time later the girlswere disturbed by some sound which they heard, the daughter
H. X. G. FERNANDO, C. J.—Krishnapillai v. The Queen
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came out to the verandah and saw the figure of a person, whothen started to run. The daughter chased that person, whojumped over the gate and got away. At that stage the daughterthought that the person who ran away was the accused becausewhen seen from behind his figure seemed to resemble that of theaccused.
A witness, Sivarajah, who apparently had been a friend of theaccused, was at the time staying at the house of oneSubramaniam. On the night of 4th October, Sivarajah andanother young man werestudying in a room in the house, whenthe accused turned up there and asked for a bucket and a towel.The accused then went away taking a bucket and a towel withhim, and he returned within half an hour with no clothes, butonly wearing the towel. Then Sivarajah realized that theaccused had just had a bath. At this stage the accused toldSivarajah “I have come having committed a murder. Youneed not be frightened. I will tell the police the entire truth ”.
The accused slept that night in Subramaniam’s house, where he wa3arrested the next morning, presumably because the police had by thattime recorded a statement from the deceased’s daughter.
A witness Kandasamy, also a friend of the accused, testified that on thenight of 4th October the accused shared with him and some others a mealof venison, and that much liquor had been consumed at this party.Kandasamy further stated that before the accused left this party,he borrowed Kandasamy’s tapping knife saying that he wanted it to killa fowl.
According to the Inspector of Police, he recorded the accused’sstatement oil the morning of 4th October, and in the course of thatstatement, the accused said " I put the knife into the well. The banianand sarong were also burnt near the well. I can point out that to thePolice The Inspector’s evidence was that in consequence of thisstatement, he discovered a knife hi a well some little distance away fromSubramaniam’s house and also the remnants of some burnt clothes.
The statement of the accused which is just mentioned was proved inevidence at the trial under s. 27 of the Evidence Ordinance, and wasreferred to in the summing-up of the learned trial Judge as one item ofcircumstantial evidence upon which the prosecution relied to prove theguilt of the accused. There was however no direction to the Jury as totho weight which might properly be attached to the accused’s allegedstatement to the Police, nor was there any direction as to the inferenceswhich may or may not bo drawn by the Jury, if they believed that theaccused had in fact made this statement. Counsel for the accused hasargued that tho omission to give any such directions was a non-directionamounting to mis-direction.
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H. N. G. FERNANDO, C.J.—Krisknapitlai v. The. Queen
At the trial of Murugan Ramasamy1 on a charge of attempted murderby shooting with a gun, it was proved that the accused had stated to aPolice officer:—“I am prepared to point out the place where the gunwas buried The,trial Judge in his summing-up referred to this matterin the following terms :—
“Jayawardana took the accused away and according to
Jayawardana, the accused made a certain statement to him in thecourse of which, the accused told lum that he could point out theplace where the gun and cartridges were buried. If you believeJa3'awardena that is a question of fact, 3-ou can understand thepolice not wasting any time thereafter. Jayawardana saj-s he atonce took him to line No. 6 and at a certain spot which, was indicatedby the police, the accused himself dug up the earth and underneaththat there was this gun in a gunny bag in three parts and there wasanother bag containing 14 live cartridges which are productions inthis case.
Well, the defence has challenged Jayawardana and said lie isnothing more than a liar in uniform. That is the suggestion. Thedefence alternatively argues, even if that suggestion of the defence isnot accepted, but Jayawardana is believed when he says that theaccused pointed out the gun, the statement of the accused is that hecould point out a place where a gun and cartridges arc buried. Thedefence therefore argues, that means nothing more than that theaccused was aware of where a gun and cartridges were buried, notnecessarily buried by him. 1 did not understand the 'prosecution asplacing the case any higher than placed by the defence counsel himself.The prosecution does net say that it proves anything more than showinga place where a gun and 14 cartridges were buried, and this was about3.25 or 3.30 that the cartridges were unearthed ”.
This Court3 (64 N. L. R. at p. 444) upheld a submission for the defencethat “ the repeated reference both in the evidence and the summing-upto the gun and this gun was gravely prejudicial to the accused Thoground of the submission was that the Jury might have attached improperweight to the statement, and might have inferred that the accused hadhimself buried the gun. The ground of prejudice was expressed somewhatmore widely when the case was in appeal to the Privy Council3 (66 N.L.R.265). It was there argued that the fact that the accused had made thostatement in question might have led the Jury to infer that the accused,in his statement to the Police, had not only admitted his knowledge ofthe place where the gun was buried, but had also admitted that he hadhimself used the gun. Their Lordships were however satisfied that thodirections of the trial Judge concerning the accused’s statement avoidedthe possibility of prejudice to the defence. Their Lordships no doubthad in mind the Judge’s remarks which 1 have underlined in the extractcited above.
1 (1962) 64 N. L. R. 433.» {1962) 64 N. L. R. at 444.
* (1964) 66 N. L. R. 265.
H. N. G. FERNANDO, C.J.—Krishnapillai v. The Queen
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\ hat is important for present purposes is the statement of their-Lordships that the trial Judge faced a “ difficult problem ”, and the factthat they proceeded to consider whether the Judge had correctly handledthat problem in such manner as to avoid prejudice to the defence. Whena statement such as “ I know where the gun is buried ”, or “ I put theknife into the well ”, is proved, the danger of prejudice is two-fold.
Firstly, the Jury might attach to the statement a wider and gravermeaning than its actual import. Hence it is the duty of the trial Judgeto direct the Juiy that such a statement is an admission only of the factstated and of nothing more. Such a direction was duly given by thetrial Judge in Ramasamy’s case, and the later decision of this Court inEtin Sinyho1 (69 N. L. R. 353) again emphasised the need for such adirection.
Secondly, when it is proved at a trial that the accused had admittedto the Police some knowledge concerning a weapon, which is proved oralleged to have been used in the commission of an offence, the Jury mightquite naturally form the impression that the accused must in additionhave admitted in the same statement that he had in fact used the weapon—an impression, in other words, that lie had made a confession to thePolice. For a Court to form and act on such an impression would amountto a violation of the prohibition contained in s. 25 of the EvidenceOrdinance. The decision in Obiya-s Ajapuhamy2 (54 JA. L. R. 32) is muchin point in this connection. We hold therefore that whenever a statementwhich is proved under S. 27 can reasonably lead the Jury to infer that aconfession may have been made to a Police officer, the trial Judge shouldclearly warn the Jury that the law prohibits such an inference beingreached.
Since the summing-up in the instant case lacked any directions of thenature which we hold were necessary, there was non-direction whichamounted to mis-dircction. TJiis was on a material point, because of theiuqmrtant item of circumstantial evidence that the accused is alleged tohave made a confession to the witness Sivarasa. An unfair constructionof, or illegitimate inference from, the accused’s proved statement to thePolice, could well have led the Jury too easily into belief of Sivarasa’stestimonj'.
Counsel for the defence has also referred to passages in the summing-upin which the Jury was told that the witness Kandasamy had in hisstatement to the Inspector of Police stated that the accused had borroweda knife from the witness, and also that the witness had identified as hisown a knife shown to him by the Inspector. In fact however, tboInspector did not in his evidence testify to cither of theso matters, norcould he have been permitted to testify to that effect in view of theprohibition contained in s. 122 (3) of the Criminal Procedure Code. Weagree that there were misdirections of fact and of law in this connection.
1 (1965) 69 N. L. It. 353.
* (1952) 54 N. L. It. 32.
442
Ceylon Hotels Corporation v. Jayalunga
Despite the matters to -which wo have referred, the arguments ofCounsel for the defence have not persuaded us that the available evidencewould not have justified the return of a verdict against the accused by aJury acting on proper directions from the trial Judge.
For these reasons, we make order setting aside the verdict and sentence,and wo direct a fresh trial of the accused on the same charge.
Case sent bach for a fresh trial.