Delivered by LORD ROCHE—Alisandiri v. The King.
[In the Privy Council.]
1936Present: Lord Roche, Sir John Wallis, and
Sir George Rankin.
ALISANDIRI v. THE KING. *
Dying declaration—Evidence of signs made by person unable to speak—Nod ofassent to question—Verbal statement—Evidence Ordinance, s. 32 (1).Where a nod of assent was given by a person, who was unable tospeak, to a question whether it was the accused that cut her neck,—Held, that there was sufficient evidence of a verbal statement by thedeceased within the meaning of section 32 (1) of the Evidence Ordinance.
Held, further, that evidence as to signs' made in answer to questionsput to the deceased was admissible but statements of witnesses as towhat interpretation they put upon the signs were inadmissible.
Where apart from the evidence proceeding from the deceased woman,the other evidence was not sufficient to warrant a conviction but at thesame time that other evidence was not merely consistent with thedeceased’s statement but pointed in the same direction,—
Held, that the conviction was justified.
HIS was an application for special leave to appeal against a judgmentand sentence of the Supreme Court.
M. D. de Silva, K.C. (Ceylon), for appellant.
Sir D. B. Somervell, K.C., A.-G. (with him Kenelm Preedy), for theCrown.
November 12, 1936. Delivered by Lord Roche.
This is an appeal by special leave against a judgment and sentenceof the Supreme Court of the Island of Ceylon dated May 1, 1935, whereby,after a trial before a Commissioner and a jury, the appellant was sentencedto death for the murder of a woman named Salami Nadatchi on May 15,1934. The jury had returned a verdict of guilty by a majority of six toone. The main point raised in the appeal was whether informationgiven by the deceased woman before her death was a statement withinthe meaning of section 32 of the Ceylon Evidence Ordinance, No. 14 of1895, and as such was admissible in evidence by virtue of that section.This information was admitted in evidence and directly implicated theappellant. The material part of the section is as follows : —
Cases in whichstatement ofrelevant fact byperson who isdead or cannotbe found, &c., isrelevant.
When it relatesto cause of death ;
“ Statements by Persons who cannot be called as Witnesses.
“ 32. Statements, written or verbal, of relevant factsmade by a person who is dead1, or who cannot be found,or who has become incapable of giving evidence, or whoseattendance cannot be procured without an amount of delayor expense which, under the circumstances of the case,appears to the court unreasonable, are themselves relevantfacts in the following cases :
“ (1) When the statement is made by a person as tothe cause of his death, or as" to any of the circumstancesof the transaction which resulted in his death, in casesin which the cause of that person’s death comes intoquestion.”
0J. K. B. 32999 (1/54)
.258Delivered by LORD ROCHE—Alisandiri v. The King.
The facts of the case as proved by evidence not the subject of objectionwere as follows :—
The deceased was a widow living alone in a two-roomed one-storiedhouse on a plot of land lying between the estates of one Stanley Jaya-wardene and one Collin Silva. The deceased’s house was about 150 yardsfrom the estate bungalow of Collin Silva where a witness named RengamArumugam, watcher of the estate, lived with his wife. The accusedman had worked as a carter for Stanley Jayawardene’s estate and livedin the neighbourhood, but recently and until shortly before May 15,1934, he had been in the employment of two brothers Mohamadu a fewmiles away. He had been discharged from this employment somedays before May 15 and was then unemployed. On the day in questionhe had been to the place of business of the brothefs Mohamadu, hadborrowed a bicycle from one of them, and gone home on it to dinner athis house, which he left after dinner about 2 p.m. Between 2 and 3 p.m.he was seen near the house of the deceased woman in conversationwith her. Between 3 and 4 p.m. he was seen riding the bicycle away •from that locality and was described by a witness (Charles) as dismountingand as going into a thicket and lurking there and behaving in a suspiciousand excited manner. He then, after bathing in a stream, went backon the bicycle to the place of business of the brothers Mohamadu wherehe was later arrested. Meanwhile at about 4 p.m. the deceased had comein a terribly wounded condition to the bungalow of Collin Silva occupiedby Arumugam. The principal wound was one about 4 inches in lengthextending from the right side of her neck across the throat to about£ an inch on the left side of the middle line. There were minor woundson the face and head and her ears were severed and tom. She hadevidently made her way unaided from her own house and was foundon the verandah of Collin Silva’s bungalow. There the interrogation■took place from which the evidence in dispute was derived and inconsequence the accused was arrested the same afternoon at the Moha-madus’ place of business. The statement of the accused, made onMay 16, was of the nature of an alibi and in particular was to the effectthat from 12.30 p.m. onwards he was at the boutique. This was provedat the trial to be untrue as appears from the evidence summarized above.At the trial the accused did not elect to give evidence nor was evidencecalled on his behalf. At the house of the deceased woman the mainfeatures of the attack upon her were plainly to be seen. There wasblood on a camp cot in the outer room upon which the deceased musthave been sitting or lying when attacked. The room was disturbedand jewellery which she possessed was missing. The door from thisroom to the outside was locked and the wounded woman, as was indicatedby blood marks, made her way into the inner room and then out of awindow and thence by a path to Collin Silva’s bungalow. There shewas bandaged and propped up against a wall with cushions. The throatwound rendered her unable to speak; but she was fully conscious andable to understand what was said to her and to make signs and to nodher head, though slightly. She was asked questions both by the policeand by neighbours and in particular by one Martin Perera—a carterwho had worked with the accused for Mr. Stanley Jayawardene and
Delivered by LORD ROCHE—Alisandiri v. The King.
who also knew the deceased woman. Mr. Stanley Jayawardene waspresent at the material time and there was no ground for suggestingthat the evidence to which objection was taken was derived solely ormainly from police sources, or that Perera or Mr. Jayawardene, whogave evidence of what took place, were witnesses with ill-will to theappellant. The greater part of the interrogation was conducted byMartin Perera, who spoke to the wounded woman in Sinhalese. Thecourse and result of it was as follows :—Asked who cut her neck, thedeceased indicated by signs the height of the person and later pointedto Mr. Jayawardene and also made signs as of goading a bull. Theaccused had worked for Mr. Jayawardene as a carter. She also pointedto a constable and then patted or slapped her cheek two or three times.The accused had some time previously assaulted a constable by slappinghis face and this was a matter of common knowledge. Probably at thisstate—though the witnesses were not entirely in agreement as to theorder of events—Martin Perera put the direct question:“Was it
Alisandiri ? *’—the name by which the accused was ordinarily known.The wounded woman nodded her head in answer to this question. Asto this fact and that it was a nod of assent no witness seemed in anydoubt. The wounded woman was removed to hospital and died thereand, as has been already stated, the appellant was arrested and charged.
At the trial the admissibility of the evidence in question seems to havebeen raised by counsel for the defence as soon as the jury was empanelledand sworn. The jury was quite properly ordered to retire and thequestion of admissibility was argued and decided in their absence.An authority (Queen Empress v. Abdullah'), which will be referred to laterin this judgment, was cited to the learned Commissioner, and in accordancewith that authority he ruled that evidence as to signs made in answerto questions put to the deceased was admissible but that statementsof witnesses as to what interpretation they put upon the signs were notadmissible. It was said upon the argument of this appeal that thelatter part of the ruling was not observed, and that evidence ruledinadmissible was in fact given. It is difficult to adhere to a clear lineof division between the description of signs and the interpretation ofsigns, and it may be that in some respects witnesses trespassed beyondthe line and so usurped what obviously is .the function of the jury ; buttheir Lordships observe that in some, instances the matter complainedof was elicited by cross-examination on behalf of the accused. TheirLordships are of opinion that no substantial grievance can be madeout in this regard, still less any real or serious miscarriage of justice.The main question is whether any part of the evidence as to what passedbetween the deceased and Perera should have been admitted. In theirLordships’ opinion the ruling of the learned Commissioner was correct.It is to be observed that in the section the word used is “ verbal ” andnot “ oral ” which is used elsewhere in the Ordinance, as for examplein section 3 and section 119 in reference to evidence given in Court.It is unnecessary to decide whether the question put “ Was it Alisandiri ? ”and the nod of assent would have constituted an oral statement made
1 J. L. R. 7 AU. 385.
260Delivered by LORD ROCHE—AUsandiri v. The King.
by the deceased, but their Lordships are clearly of opinion that itconstituted a verbal statement made by her. The case under con-sideration closely resembles the case of a person who is dumb and isable to converse by means of a finger alphabet. Upon proper evidenceproving the words used in a conversation so held their Lordships thinkthat a statement so made would be a verbal statement within the meaningof the section. So here their Lordships think that there was proper andsufficient evidence of a verbal statement by the deceased to the effectthat it was the accused who cut her neck. As to the remainder of theevidence as to signs made by the deceased it was necessarily given inorder that it might be understood in what circumstances and contextthe vital question came to be asked and to be answered. Mention hasalready been made of the decision in Allahabad upon which the learnedCommissioner relied to support his ruling. This was a decision of theFull Court and was pronounced in the year 1885. Since that time it hasbeen followed in Bengal in the case of Emperor v. Sadhu Charan Das1,in Patna in Chandrika Ram Kahar v. King Emperor *, and in Lahorein Mam Chand v. The Crown’. The material provisions of the EvidenceAct in India are identical with the provisions of the Ceylon Ordinance.For the reasons already given their Lordships think that those decisionswere correct and that the learned Commissioner was right in followingthem.
Observations were properly and forcibly made by Council for theappellant as to the caution required in the reception of evidence of thischaracter and in the use to be made of it. It is, of course, true thatevidence of signs of an ambiguous or uncertain character ought not to beadmitted at all and that in many cases the evidence though admissiblemight be of little weight. It is no doubt also true that answers toquestions of a leading character may be of little weight, but in thecircumstances of this case Martin Perera’s question was in its contextother than a mere leading question. At any rate all such matters arematters for the jury, going to the weight and not to the admissibilityof the evidence, and there is nothing here to show that anything took placein this connection calling for or justifying the interference of this Board.Unfortunately neither the advisers of the appellant nor the Crown wereable to trace or produce any*note of the summing up. In the absenceof any suggestion, based on any other materials, that the summing upwas open to objection, their Lordships can only assume that the learnedCommissioner who heard the argument on the admissibility of theevidence with regularity, and ruled upon it, as their Lordships liavedecided, correctly, also directed the jury adequately and properly as tothe weight of the evidence. The result seems to their Lordships to bethis : Apart from the evidence proceeding from the deceased woman,the other evidence was not sufficient to warrant a conviction, but at thesame time that other evidence was not merely consistent with thedeceased’s statement but pointed in the same direction. It was a casein which, if the deceased’s statement was received, and was believed,
11. L. R. 1 Pat. 401.
3 I. L. B. 5 Lah. 324.
11. L. R. 49. Cal. 600.
Philip v. Wettasinghe.
as it evidently was by the jury, to be clear and unmistakable' in its effectthen a conviction was abundantly justified and indeed inevitable. Forthese reasons their Lordships have felt themselves impelled to adviseHis Majesty that this appeal should be dismissed.
ALISANDIRI v. THE KING