054-NLR-NLR-V-46-JUSTIN-FERNANDO-Appellant-and-INSPECTOR-OF-POLICE-SLAVE-ISLAND-Respondent.pdf
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Justin Fernando <t Inspector of Police, Slave Island.
1945Present: Wljeyewardene J.
JUSTIN FERNANDO, Appellant, and INSPECTOR OF POLICE,SLAVE ISLAND, Respondent.
57—M. C. Colombo, 41,784.
Evidence—Statement made by accused while in police custody—Statement leadingto discovery of a fact—Must relate distinctly to the fact discovered—Confession—Elicited -in cross-examination byaccused—Admissibility—
Evidence Ordinance, ss. 25 and 27.
The accused was convicted on a charge of theft of a Raleigh Popularbicycle from the premises of the City Dispensary. 1
1 5 C. L. Journal 214.
* 45 N.L. R. 651.
WIJEYEWARDENE -T.—Justin Fernando if Inspector of Police, Slate Island. 159
The constable who was called as a witness by the prosecution, said inexamination-in-chief that he was inquiring into a complaint of a theftof another bicycle (aHercules bicycle) andtheaccused wasdetained as a
suspect in connectionwith that theft. Hesaidthat in thecourse of that
investigationthe accused gavehim someinformation inconsequence of
which he visited the house of a carter from whom he obtained parts P 1and P 2 of a Raleigh Popular cycle. In cross-examination the constablewas asked by the Proctor for the defence to read the statement made bythe accused to him. The constable thereupon stated that the accusedtold him " that he had stolen a cycle at the City Dispensary and hadlater sold it to a carter
Held, thateven if a suspectdetained bythe Police ononecharge and
giving information with respect to property forming the subject matterof a separate and subsequentcharge canbe regardedasan accused
person in the custodyof a police officer withinthe meaningof section 27
of the EvidenceOrdinance, the evidencegivenbytheconstableof the
confession made by the accused that he “hadstolen a cycle at the City
Dispensary "was inadmissibleas it wasnot coveredbythe words
“ as relates distinctly ” in section 27 of the Evidence Ordinance; thecycle in this case was discovered in consequence of the information givenby the accused that he sold it to a carter, and the further informationthat he had stolen a cycle at the City Dispensary did not " relatedistinctly ” to the discovery of the cycle.
A confession isinadmissiblein evidencewhetherit is elicitedfrom a
witness in examination-in-chief or in cross-examination by the defence,if it incriminatesthe accused; the correcttesttobeapplied isnot the
manner in whichthe evidenceof the confessioncametobe placed before
the court but the effect of such evidence at the trial of the accused for acriminal offence.
A
PPEAL from a conviction by the Magistrate. Colombo The factsappear from the head-note.
Ian de Zoysa for the accused, appellant.
E. H. T. G-unaxehere, Crown Counsel, for the Crown, respondent.
Cur. adv. vult.
March 13, 1945. Wijeyewardene -J.—
The accused was convicted on a charge of theft of a Raleigh Popularbicycle from the premises of the City Dispensary, Slave Island.
The constable who was called as a witness by the prosecution said inexamination-iu-chief that he was inquiring into a complaint of a theftof a Hercules bicycle and the accused was detained as a suspect in con-nection with that theft. He said that in the course of that investigationthe accused gave him some information in consequence of which hevisited the house of Ragin, a carter, from whom he obtained parts P 1and P 2 of a Raleigh cycle. In cross-examination the constable wasasked by the Proctor for the defence to read the statement made by theaccused to him. The constable thereupon stated that the accusedtold him “ that he had stolen a cycle at the City Dispensary and hadlater sold it to a carter through Costa ”
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lAO WIJEYBWAEDENE J.—Justin Fernando <t Inspector of Police, Slave Island.
Counsel for the accused contended that the evidence given by theconstable of the confession made by the 'accused that he “ had stolen acycle at the City Dispensary ” was inadmissible. He argued thatsection 27 of the Evidence Ordinance did' not mate that evidenceadmissible as—,
(а)the statement was not made .by the accused when he was are
accused in this case and in the custody of a Police Officer.
(б) 1 the part of the accused’s statement that he had stolen a cycle
at the City Dispensary did not “ relate distinctly ” to the' discovery of the cycle.
With regard to the first objection the thrown Counsel invited myattention to Queen-Empress v. Kamalia 1 and Queen-Empress v. BabuLai 2. The Bombay case holds that a suspect detained by the Policemay be regarded as being in Police custody within the meaning of section27 of the Indian Evidence Act which corresponds to section 27 of. theEvidence Ordinance. The Allahabad case shows that a personarrested on one charge and giving information with respect to propertyforming the subject matter of a separate and subsequent charge is anaccused person in the custody of a Police Officer within the meaning ofsection 27 of the Indian Avidence Act.
There remains, however, for consideration the second objection raisedby the accused’s Counsel. It has been settled by a number of decisionsthat only so much of the information as led immediately to the dis-covery of a fact is admissible (vide Queen-Empress v. Nana 3). The cyclein this case was discovered in consequence of the information given bythe accused that he sold it to a carter through Costa. The further-information given by the accused that “ he had stolen the cycle at theCity Dispensary ” was not necessarily or directly connected with thediscovery and should not therefore have been mentioned to court by theconstable.
The Crown Counsel, however, argued that the evidence of the entireconfession given by the constable was admissible, as it was given in-answer to a definite request made by the Proctor for the defence to readthe statement made by the accused. He contended that section 25which should be read with section 27 prevented the proof of a confessionof an accused made to a Police Officer only “ as against ” that personand that, therefore, such a confession when elicited in cross-examinationas in this • case was not shut out by those sections. This question isnot free from difficulty. I think the correct test to be applied is not themanner in which the evidence of the confession came to be placed before-the court but the effect, of such evidence at the trial of the accused for acriminal offence.
Commenting on section 25 Ameer Ali says in his Daw of Evidence.: —
“ This section only provides that ‘ no confession made to a Police-Officer shall be proved as against a person accused of any offence *-It may, however, be proved for'other purposes ”.
1 (1886) 10 Bombay 696.1 (1884) 6 Allahabad 510.
(1889) 14 Bombay 260.
WXJKYBWABDBN E 3.—Jut tin Fernando t Inspector of Police, Slave Island, 161
I have examined the decisions cited by Ameer All to illustrate thecircumstances in which such a confession could be proved. They do notsupport the contention of the Crown Counsel. In Imperatrix v. PitamberJina 1 two persons A and B were tried jointly for murder. A stated to aPoliceman, “ I have killed a man and the other (B) has run away ”. Itwas held that B could prove this confession to prove that he took no partin the murder. In Queen-Empress v. Tribhovan *, it was held that astatement made to the Police by an accused as to the ownership of theproperty with the theft of which he is charged, although inadmissibleagainst- him at the trial, was admissible as evidence with regard to theownership of the property at an inquiry held by the Magistrate undersection 523 of the Indian Code of Criminal Procedure, 1882, correspondingto section 419 of our Code.
I would also refer in this connection to Queen-Empress v. Mathews *.In that case a Policeman on being cross-examined stated that the prisonerwhen arrested said some Chinese came out with hatchets' “ at the timeof the occurrence ’ ’. In re-examination he said that the actual wordsused by the prisoner was not “ at the time of the occurrence ” but " atthe time I struck the deceased ”. On objection being taken by thedefence Counsel to the evidence elicited in re-examination Field J.upheld the objection. In the course of the argument, the defence Counseldesired that the whole statement made by the accused to the Policeshould be led in evidence. Field J. said—
“ I cannot permit it, the law is imperative in excluding what comes
from an accused person in custody of the Police if it incriminates
him ”.
For the reasons given above I hold that the confession of the accusedthat he stole the cycle at the Dispensary should not have been provedagainst him.
The case against the accused then rests on the evidence of—
the constable who said that on a statement made by the accused theday after the loss of the cycle he discovered the parts PI andP 2 at the house of Ragin.
(i>) Bagin, the carter, who said that the accused sold him for Us. 25 aRaleigh cycle the very evening the • cycle was lost and that PIand P 2 were parts of that cycle, and
(c) the owner of the cycle who identified P 1 and P 2 as parts- of hismissing cycle, which he valued at Rs. -100.
In assessing this evidence Bagin should of course, be regarded as anaccomplice, as his evidence makes it quite clear that he knew the cyclewas stolen property. As against this evidence there is only the evidenceof the accused who denied the theft of the Baleigh cycle and stated thatthe only statement he made to the Police the day after the loss of theBaleigh cycle was about a sale of a Hercules bicycle to Bagin four monthsearlier on a receipt written by a Village Headman.
1 (1877) 2 Bombay 61.* (2694) 9 Bombay 131.
* (1884) 10 Calcutta 1024.
«f. N. A 99415 (8/50)
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WUE XJSWABDENE J,—Earthigesu and Parupathy.
On an examination of the evidence I hold that the admissible evidenceled by the prosecution has established beyond reasonable doubt theguilt of the accused.
I dismiss the appeal.
Appeal dismissed.