Fernando and Sergeant Samath.
1944Preseivt: de Kretser J.FERNANDO, Appellant, and SERGEANT SAMATH, Respondent.
882—M. C. Colombo, 34,773.
Confession to Police Officer—Statement by Police Officer in cross-examination—Confession inadmissible—Evidence calledbyMagistrate after closeof
The accused was charged with the theft of a battery. In cross-examination of the Police Constable, who investigated the case. Counselfor the defence asked the question, “ “Why did you question WThe
reply was: “ Because the accused had told me that he removed the battery- at W’s suggestion ”.
Held, that the statement contained in the answer was inadmissible asbeing a confession made to a Police Officer.
Held, further, a Magistrate is not justified in calling evidence after thedefence is closed.
Idroos v. David, 45 N. L. R. 300 followed.
PDEAL from a conviction by the Magistrate of Colombo.
Nihai Gunesekere for the accused., appellant.
H. A. Wijemanne, C.C., fdr the respondent.
Cut. g,dv. v'uld.
DE KBET5EB J.—Fernando and Sergeant Samalh
November 16, 1944. de Kketser J.—
The' accused was charged with the theft of a battery from a Militarylorry, and convicted on the charge.
The case is rendered difficult by reason of the way the trial shaped andthe way in which the Magistrate has dealt with it.
It would appear that one Podisingho informed the driver of the truckthat he had seen the accused removing the battery. The accused wasthen questioned and pointed out where the battery had been hidden.The ease would have been quite easy had Podisingho stood by his informa-tion but "he did not, and at the trial he said that he did not see the accusedmeddling with anything in the lorry but he had seen him bending over thefootboard of the lorry, holding something like a wire and feeling his legs.He denied having said more. The Magistrate seems to have treatedPodisingho’s original statement as if it were substantive evidence and thatwas wrong. The driver did not say what the accused had told him beforehe pointed out the battery. In the cross-examination of the Policemanwho investigated, defending Counsel asked, “ why did you questionWimalaratne?” and he got the reply, “ Because the accused had told methat he had removed the battery at Wimalaratne’s suggestion.” Counselobjected to this answer being recorded as he contended it was a confessionto a Police Officer; but the Magistrate recorded it, justifying his doing sowith the reasoning that the witness was obliged to answer the question,which was a relevant one, and also because it contradicted the accused’sdefence which had been stated to him. The Magistrate did not, however,take this statement into consideration when arriving at his verdict. Evenif the statement was admissible to contradict the accused, the accused hadfirst to give evidence before he could be contradicted. Confessions maynot be proved against the accused. The persons who would do so would bethe party or parties interested in the prosecution. But might not anaccused himself prove a confession ? It is admitted he might.
So the position is whether the accused can object to evidence which hehas himself elicited ? What would be the position of a witness faced witha question such as was asked in this ease? He cannot refuse to answer itand he must speak the whole truth. His answer could be ” Because of astatement ' ’ accused made but that would be misleading and wrong,exactly what the defence wished him to say.
The accused's position at the trial was that it was Wimalaratne whostole the battery and the accused was aware Gf the place where it wassecreted. Whatever the idea of the accused was the statement wasclearly a confession. The prohibition against its admission is absoluteand the accused was not seeking to prove it. It may have been relevantas explaining the conduct of the Police but no exception is made on theground that it is relevant. The Magistrate was right, therefore, in notconsidering it.
Lastly, when the accused gave evidence he was questioned by the Courtwith regard to statement made to Corporal Baker of the Military Policeand he said that he told the Corporal he had seen Wimalaratne placing
1>E KREfSEB J.—Fernando and Sergeant Samath.
the battery in the particular spot. The Magistrate called the witnessat the close of the defence. It seems to me he acted irregularly and hewas not justified in calling the witness when the ease had beenclosed. The cases of S. I. Idroos v. David1 and G. S. Theas, PoliceVidane v. Michael ThalimaV1 are in point.
The case against the accused, apart from the evidence which is objectedto, stands as follows;—The battery is stolen; its loss is discovered soonafterwards; Podisingho at least gives information that the accusedwas quite close to the lorrv in a suspicious attitude; the accused isquestioned and points out the battery; as a result of what he tells thepolice, Wimalaratne is questioned; what the accused said prior'to the.battery being pointed out is not proved and his statement might ‘'havebeen that" he was aware of where Wimalaratne placed the battery, butthe military corporal says that Podisingho told him the accused hadremoved the battery, and he is believed. Podisingho, therefore, saidmore than he now says, but, of course, he may have said that falselyin order to protect Wimalaratne, or for some other reason. There is nosuggestion made in cross-examination that the accused had involvedWimalaratne as the thief or in any way exculpated himself. Podisinghoadmits he pointed out only the accused to the corporal. The accusedsays he did not see Wimalaratne take the battery from any lorry and hedid not suspect him when he saw him place the battery inside a bush.He was with Wimalaratne in the latter’s lorry and then saw "Wimalaratnesecrete the battery and that only the two of them were then present.He does not refer to Podisingho, nor explain what he was doing bendingover the footboard with a wire in his hand. According to the accused,Wimalaratne must have stolen the battery. Podisingho saw the accusednear the truck containing the battery'. Why did he or both he andWimalaratne go to that truck? No explanation is given. The Magistratedisbelieved, the accused’s evidence and that disbelief is justifiable.What then results? The accused may have been constructively inpossession of the stolen property ;mmediately after the theft; Wimalaratnemay have been in possession and the accused may have known of thatfact; both Wimalaratne and he may have been in possession of it. Thecase against the accused cannot then be raised beyond one of very strongsuspicion. He must, therefore, be acquitted. The conviction is set-aside and the accused acquitted.
Set aside. *•
*• 45 N. L. R. 300.
» 2 C. L. J. 297.
FERNANDO, Appellant, and SERGEANT SAMATH, Respondent