099-NLR-NLR-V-28-KING-v.-ARNOLIS-PERERA.pdf
( 481 )
[Crown Case Beserved.]
:Present; Garvin and Lyall Grant JJ. and Maartensz A.J.
KING v. AENOLIS PEBERA.28.—P. C. Negombo, 46,211.
Evidence—Statement by a deceased person—Circumstances of the trans-action resulting in death—Evidence Ordinance-, ss. 6, 8, 82 (2).
M, who was living in the house of her parents ne&r the BotanicGardens,Henaratgoda, disappearedon the night of June30,
and her corpse waa found, in the afternoon of the following day,lying on a mat in a threshing floor about half a mile from thehouse. At the trial of. A, who was a watcher at the BotanicGardens, for the murder of M, evidence was led of circumstances,which, it was alleged, proved that 11 was murdered by A, and itwas sought to give in evidence a statement alleged to have beenmade by M to her daughter Jane on June 30 to the effect that shewas going away with the accused to Rambukkana.
Held, that evidence of the alleged statement of the deceasedto the daughter was not admissible. Section 32 (1) of the EvidenceOrdinanceis limited to statementsmade by a person afterthe
event which resulted in his death.
C
*1 ASE referred by the Attorney-General under section 355 (3)J of the Criminal Procedure Code. The facts are stated in
the reference as follows:—
The accused in this ease was charged with murdering a.woman named Dingiri Menika on June 30, 1926. He was tried.before Mr. Justice Schneider and an English-speaking jury com-posed of three Europeans and four Ceylonese. He was found guiltyby. a verdict of 6 to 1. He was accordingly sentenced .to be hanged.
Dingiri Menika was a widow, who lived with her brothersand: sisters in ahouse inherited fromher parents adjoiningthe
BotanicGardensat Henaratgoda. Shedisappeared on the night
of June 30. When her disappearance was discovered at about 10or 11 p.m., it was found that her clothing and jewellery and alsocertain jewellery belonging to one of her sisters was missing.Her corpse was discovered at about' 3.30 p.m. on the afternoonof July 1 lying on a mat and pillow in a threshing floor abouthalf a mile from her house which at that time of . year was notmuch frequented.
• The circumstances which point to the accused as the murdererof Dingiri Menika are the following:—
•t«>-Thb accused is a' married man. He- was intimate withDingiri' Menika-, and she was five months with child.
1W.
16
( 482 )
Dingiri Men'ka told her little daughter Jane on June 80 thatshe was going away with the accused to Rambukkana toopen a boutique there.
Dingiri Menika disappeared from her house between 9 and11 p.m. on June 30, and the accused (who ought to havebeen on duty at the Botanic Gardens at Henaratgodafrom 5 p.m. on the 30th to 5 a.m. on July 1) was not athis post on the night of June 30, when search was madefor him from about 3 a.m. till daybreak.
The accused, when quest'oned on the morning of July 1regarding his absence from the Gardens on the nightprevious, said first, that he had gone for his dinner at9 p.m. and had returned at 1 a.m., and then that he hadreturned at 3 a.m.
The accused fainted when he heard that the Police Headmanhad searched for him on the night of June 30 in connec-tion with the disappearance of D'ngiri Menika.
(/) The witness Samaneris saw the accused at about 11 p.m. onJune 30 going with Dingiri Menika zn the direction of thethreshing floor on which later Dingiri Menika's corpse wasdiscovered..
The witness Siappu saw the accused about midnight return-ing homewards from the direction of the Botanic Gardens-and the threshing floor.
The witness Theris identifies the mat and pillow on whichthe corpse was found lying as the property of the accused.
The witness Bastian Sinno identifies certain pieces of jewellerywhich were found on the night of July 1 at the accused'shouse (in a box of – the accused’s wife) as his sisterRuihamy’s jewellery which was in his box and whichDingiri Menika took away.
(/) The witness Bastian Sinno identifies a string of silver beadsfound among the accused’s wife’s jewellery as a necklaceusually worn by Dingiri Menika.
The question of law that is now submitted for a final deter-
mination arises as a result of the admission at the trial of theevidence indicated m paragraph 4 (b) above.
(o) In the Police Court the girl Jane had testified among otherthings as follows: —
“ … . Day before evening I was at home. My mother too
was in the house. I saw her bundling some clothes.I asked her why she was doing that. She told me thatshe was going to Rambukkana with the watcher. I started
1927.
King
t>. AmolisPerera
( 483 )
crying. Then she gave me 50 cents and asked me to takehoppers in the morning and go to school …
“ She further promised to return in four days and take
»t
me .. .
(6) At the- commencement of the trial Counsel for the accusedobjected to the above evidence being led. The Judge ruled thatthe evidence was admissible.
(c) Accordingly Jane gave evidence at the trial, on this point,as follows: —
Examined.—“…. One night I found my mother missing.
On the morning of the day she disappeared, before middaymeals, 'she told me that she was going to Rambukkana withthe watcher. I cried after she said that as I felt sorry.I did not ask her, but she told, me that of her own accord.When she said this she was simply seated down insidethe house doing nothing. I was just seated down nearmy mother then. A little while after she said this, shebundled her clothes. I did not want to go with her, butcried as I felt sorry. I asked her not to go. She gaveme 50 cents in 10- and 5-cent pieces and asked me to buyhoppers in the morning and go to school. She told me thatshe would return in four or five days to see me
Cross-examined.—. She took the clothes from awooden box to which there was a lock and key. Thatwas my mother’s box. I cannot remember whether shetook only clothes from that box. I was standing closeby when she was taking them. I asked her why shewas bundling them, and she said that she was going to Ram-bukkana with the watcher. In the morning too she told methat she was going to Rambukkana with the watcher.She told me the same thing about two days before thatshortly after my midday meals …
Cross-examined.—. . For the last time when she toldme that she was going to Rambukkana she said that shewas going there to open a boutique …
The question of law that is now submitted for decision iswhether the learned Judge was right in permitting Jane to relatewhat Dingiri Menika had told her on the afternoon of June 30.
R. L. Pereira (with Basnayake), for accused.—Evidence of thealleged statement is not admissible under section 32 (1) of theEvidence Act. Our Ordinance is a reproduction of the IndianEvidence Act. In India it has been held that the words musthave been uttered after the injury was received. The words of
. 1927.
King
9, AnioHaP extra
( 484 )
/
which secondary evidence is sought to be given must amount toKing a dying declaration. The difference between the English and*pSrww^n<^an ^w i8 that in England dying declarations are only
admissible in cases of homicide, while. in India they are admissibleeven in civil matters. Also, under the English law the state-ment must be made under the expectation of death, while that is-not necessary under the Indian law.
Ameer Ali and Woodroffe in their book on Evidence speakof a statement coming under section 32 (1) as a dying declaration..See Autar Singh v. The Crown.1 Shivabhai Becharbhai v. Emperor 2is against us. But in this case the Judges were-under the misappre-hension that the words “ or as to the circumstances ” in section 32 (1)find no place in the English Act, and that therefore the Indian Actis wider and would permit statements made even before the injurywas inflicted being led in evidence. The English law is the sameas the Indian except for the differences already indicated. SeeStephen*s Digest, Article 26.
Obeyesekere, Deputy S.-G., (with Dias, C.C.), for the Crown.—Thefacts in Shivabhai Becharbhai v. Emperor (supra) are indistinguish-able from those in the present case. When the woman was packingup her goods the transaction that led to her death was taking place.
In the Bombay case, where the boy was travelling in the train to theplace wHere he was killed, the transaction had commenced. Theremay be several stages to the transaction leading up to the death,and all those stages that are not too remote in the opinion of the-Court must be considered a part of the transaction. Any statementmade in the course of one of these stages is admissible.
Our Evidence Act and the Indian Act are a wide departure fromthe English Law of Evidence. The words “ cause of death ” and“ as to any of the circumstances of the transaction which resultedin death ” are separated by the word “ or ” and form two watertightcompartments totally unconnected with each other. The wordscircumstances include facts which happened long before deceasedcame by his injuries.1
Sections 32 and 33 are not exhaustive of instances, where state-ments made by a deceased can be proved (Sellambram v. Kadiraie 3)..
The statement is admissible under section (6), illustration (a).Section 6 practically reproduces the English law as to res gestae..The fact, that the deceased was packing up her things is a relevantfact, as it helps to explain how certain articles of the deceasedcame to be in accused’s possession. . Any statement made during .the time that act was done and in respect of that act is res gestae..and admissible.
1 (1923) I. L. R. Lah. 431.* (1926) SO I. L. R. Bom. 683.
*20N. L. R. 161.
( 485 )
R, L. Pereira, in reply.—All admissible evidence, must be relevant,but all relevant evidence is not admissible, viz., a statement madeto a police office? may be relevant but inadmissible. It is- aprinciple of law that the later section 32 governs the earlier sections6 and 8.
June 28, 1927. Garvin J.—
This is a reference by the Attorney-General under the provisionsof section 355 (3) of the Criminal Procedure Code. The questionfor determination arose in the course of the trial of JayawardanaThambugalagey Amolis Perera on a charge of having on June 30committed murder by causing the death of one Dingiri Menika.
The facts of the case are fully set out in the written statementfiled by 'the Attorney-General. It would seem that ^ DingiriMenika was a widow who lived with her brothers and sisters inthe house of their parents which adjoined the Botanic Gardens atHenaratgoda. The accused Arnolis was a watcher employed . atthe Gardens. On the night of June 30 between 10 and 11 p.m.it was discovered that Dingiri Menika had disappeared from her-house, and it was also found that her clothing and jewellery weremissing. The next day, at about 3.30 p.m., her corpse was found,,and it was stated in the course of argument that the injuries onher body established that she died as a result of injuries inflictedupon her by some person.
Evidence was led of circumstances which it is alleged provedthat Dingiri Menika was murdered by Arnolis the watcher, and itwas sought to give in evidence a statement alleged to have beenmade by Dingiri Menika to her little daughter Jane on June 30rto the effect that she was going away with the accused Arnolis toRambukkana. This evidence was objected to, but the objectionwas over-ruled and Jane's evidence admitted. The substance ofJane's evidence was that about midday on June 30 she saw hermother making a bundle of her clothes, and that upon inquiry hermother said that she was going to Rambukkana with the accused.
The question we have to determine is whether the presidingJudge (Mr. Justice Schneider) was right in admitting evidence ofthe statement alleged to have been made by Dingiri Menika.
Counsel seeks in the first place to justify the reception of this,evidence under section 32 (1) of the Evidence Ordinance as a ■statement made by a person who is dead as to the circumstances.'of the transaction which resulted in her death.
The statement -under consideration was not made after the-transaction or after the infliction of the injury which resulted indeath. But, if I understood'-the Deputy Solicitor-General, whoappeared in support of the order of the presiding Judge, aright, anystatement of a person who is dead made at any time so long as it
199ft:
Kivf.i . .v. ArnoUePerm*
( 486 )
1*27.
Gabvin J.
King■v. AmolisPererci
was made in the course of the transaction which resulted in hisdeath is admissible in evidence under section 32 (1) if it relatedto any of the circumstances of that transaction. It is arguedeontra that the only statements which are admissible undersection 32 (1) are dying declarations; in short, that the law in Ceylonis in substance the same as the law in force in England, subject tothe following exceptions: —
That the person who made the statement need not necessarily
at the time when it.was made have been under expectationof death; and
That the statement is admissible whatever be the nature of
the proceeding in which the cause of death be called inquestion.
The statements, the reception in evidence of which are permittedby section 32 (1), are statements by a person who is dead “ as tothe cause of his death or of any of the circumstances of thetransaction which resulted in his death/' These words imply thatwhat is made admissible is not merely a bare statement limitedto the actual cause of death; they are intended to enable thereception in evidence of the statement made by a person who is-dead of all the circumstances under which he met with his death.This view of the section implies that the transaction which resultedin death should have occurred and been complete in all respects-save as to the dqath at the time the statement was made. In otherwords, it must be a statement made by a party who had receiveda mortal injury at a time subsequent to the injury narrating the■circumstances under which she received that injury. It has beensuggested that the words “ or as to any of the circumstanceswhich resulted in his death " mark a wide departure from theEnglish law relating to dying declarations, and are intended toadmit in evidence, not only statements made after the act whichresulted in death, but also statements made at any time priorthereto, so long as they are within the period covered by thetransaction. This submission is based upon the ruling in theIndian case of Shivabhai Becharbhai v. Emperor,1 which is theonly case the Deputy Solicitor-General has been able to cite insupport of his contention. Referring to the ruling of the HighCourt of Lahore, in which this section was interpreted, perhaps in.too restricted a sense, but generally on the lines suggested by me,the learned Judge who decided Shivabhai Becharbhai v. Emperor{supra) says: " If, as in English law, the clause is confined to the caseof statements made as to the cause of a person’s death, then I quiteagree that the above would be a ‘proper interpretation.*" Theassumption that in English law dying declarations are restricted
1 {1926) SO I. L. R. B0fn.~683.
( 487 )
to the cause of the death is purely erroneous. Indeed, Sir JamesFitz James Stephen in his Digest of the Law of Evidence (in Article26 of that work) states the English law to be as follows: —
“A declaration made by the declarant as to the cause of his deathor as to any of the circumstances of the transaction whichresulted in his death is deemed to be relevant
It is inconceivable that Sir James FitzJames Stephen, to whombelongs the credit of having drafted the Indian Evidence Act,could or would have used the very words in which he summarizesthe law of England on the point to mark a deliberate departurefrom the law of England on that very points
The words “ as to the cause of his death or as to any of thecircumstances which resulted in his death *’ are descriptive of thesubject-matter of the statement and set a limit to the matters-which may be referred to. in such a statement. They limit suchstatements to the cause and circumstances of the death of theperson making them.
The section read as a whole is in my opinion intended to admitin evidence a statement made by way of narrative after the eventwhich ultimately resulted in his death by the person the cause ofwhose death is in question. Subject to the differences alreadynoticed, there is on this point no difference between the Englishlaw and the law as declared in the Ceylon Evidence Ordinance.This is the view taken in the case of Autar Sing v. The Crown (supra)of the corresponding provisions of the Indian Evidence Act. Beforeleaving this aspect of the case, I would observe that in the com-mentary on section 30 (1) of the Indian Evidence Act, which isin all respects identical with section 32 of the local Ordinance*the section is treated as one which provides for the reception inevidence of dying declarations.
The learned Deputy Solicitor-General next contended that ifthe statement is not one which may be received in evidence undersection 32 it is admissible under section 6 or section 8. The formerof these two sections is a statement of the doctrine of res gestae.It is more restrictive, in that it does not include all that under theEnglish law is covered by that doctrine. In his work on The Lawof Evidence, section 583, Taylor says: ** Perhaps the best generalidea of what is meant by res gestae is that the expression includeseverything thai may be fairly considered an incident of the eventunder consideration/’ The rule as it is stated in section 6 makes“ facts which though not in issue are so connected with a factin issue as to form part of the same transaction ” relevant.Both declarations and acts would under this' rule be admissibleprovided they are so connected with the fact in issue as to formpart of the same transaction. I find it difficult to see how thestatement of Dingiri Menika can fairly be said to be so closely
1927.
Garvin'J.
Kingo. AmaliaPatera
( 488)
1627.
OjuiviN J.King
■vt AtnolisPetira
connected with the murder as to form an incident of that event.There is not that connection which exists between facts which arecontemporaneous, and it is conceivable that it had no actual con-nection with the circumstances which led to and culminated in themurder. It is impossible to say that it grew put of the main fact,as in the case of the cries of the victim of an assault; or that it isexplanatory of the nature of the transaction,, as in the case of thecries of a mob in a trial for riot. The determination of the questionwhether or not a particular fact forms part of the res gestae is oftenattended with considerable difficulty. Differences of opinion mustand do arise. But for my own part, I prefer in any doubtful case,especially when it relates to a statement of a person who is dead,to adopt the course of rejecting such evidence. In this case Iwould do so for the reason that in my opinion this statement maynot be given in evidence under section 6.
Nor do I think section 8 of the Ordinance authorizes its reception.The conduct of a person, an offence against whom is the subjectof any proceeding, is relevant “ if such conduct influences or isinfluenced by any fact in issue or relevant fact/’ It is only in•such cases that statements may be given in evidence provided thatthey accompany and explain acts. I am not satisfied that thereis anything to indicate that the fact in issue was influenced bythe conduct of the deceased which it is sought to explain by thisstatement.
If, as I think, this statement was wrongly received in evidence, itremains to be considered what order should be made in the caseIt is impossible to say how far the minds of the jury were influencedby this, statement, or that they should or would have brought in.the same verdict had this statement not been admitted. Underthese circumstances the proper course is to order a new trial. Theproceedings taken at the trial are quashed and a new trial ordered.The prisoner will be remanded to the custody of tbe Fiscal forthat purpose.
Maartensz A.J.—
• The prisoner in this case was charged with murdering a womannamed Dingiri Menika on June 30, 1926. He was tried beforeMr. Justice Schneider and an English-speaking jury and found-.guilty of murder by a majority of 6 to 1.
The Attorney-General is of opinion that a question of law whicharose at the trial of the above case ought to be further considered,and submits the same for determination under section 355 (3)of the Criminal ProcedurevCode.
The* facts stated by the Attorney-General are as follows: —“ Dingiri Menika was a widow, who lived with her brothers andsisters in a house inherited from her parents adjoining the Botanic
( 489 )
Gardens at Henaratgoda. She disappeared on the night of June jfff*30. When her disappearance was discovered at about 30 or maatohbb11 p.m. it was found that her clothing and jewellery, and alsocertain jewellery belonging to one of her sisters, were missing. Hercorpse was discovered at about 3.30 p.m. on the afternoon ofJuly 1 lying on a mat and pillow in a threshing floor abouthalf a mile from her house which at that time of the year was notmuch frequented.”
One of the witnesses for the prosecution was the deceasedwoman's daughter Jane.
In the Police Court Jane testified as follows: —
"Day before evening I was at home. My mother
too was in the house. I saw her bundling some clothes.
I asked her why she was doing that. She told me that shewas going to Bambukkana with the watcher. I started,crying. Then she gave me 50 cents and asked me to takehoppers in the morning and go to school
A.t the commencement of the trial Counsel for the accused objectedto the above evidence being led. The objection was over-ruled.,;and Jane gave the following evidence : —
Examined.—"…. One night I found my mother missing:.
On the morning of the day she disappeared, before-midday meals, she told me that she was going to*Bambukkana with the watcher. I cried after she saidthat as I felt sorry. I did not ask her, but she told methat of her own accord. When she said this she wassimply seated down inside the house doing nothing.
I was just seated down near my mother then. A littlewhile after she said this she bundled her clothes. I didnot want to go with her, but I cried as I felt sorry. I askedher not to go. She gave me 50 cents in 10- and 5-centpieces and asked me to buy hoppers in the morning andgo to school. She told me that she would return in four orfive days to see me …. ”
Cross-examined.—“…. She took the clothes from a
wooden box to which there was a lock and key. Thatwas my brother's box. I cannot remember whether she-took only clothes from that box. I was standing; close:by when she was taking them. I asked her why she wasbundling them, and she said that she was going to Bambuk-kana with the watcher. In the morning* too she told methat she was going to Bambukkana with the watcher.
She told me the same thing about two days before that,shortly after my midday meals …. ”
C 490 )
1927.
Maabtensz
A.J.
King& Amelia. Perera
Cross-examined.—“…. For the last time when she
told me that she was going to Eambnkkana she said thatshe was going there to open a boutique …. "
The question of law submitted for decision is whether the learnedJudge was right in permitting Jane to relate what Dingiri Menikahad told her on the afternoon of June BO.
Tbe accused was a watcher at the Henaratgoda Botanic Gardens,and the passage particularly objected to is Dingiri Menika*s state-ment that “ she was going to. Bambukkana with the watcher/'
Jane's evidence as to what Dingiri Menika told her was, I under-stand, admitted under section 32 (1) of the Evidence Ordinance,1895, as a statement made by a deceased person as to a circumstanceof the transaction which resulted in her death.
The contention for the accused is that a statement made bya person befpre the injury took place which resulted in his or herdeath was not such a statement as is contemplated by section 32(1) of the Evidence Ordinance.
In support of this contention accused's Counsel argued thatsection 32 (1) enacts the English Law of Evidence with regard todying declarations with certain modifications which do not alterthe principle of the English law that the statement must be onemade after the injury which resulted in death was sustained.
Section 32 (1) differs from the English law in various ways, butfor the purposes of the question at issue before us I need only considerone of them.
Under the law of England certain conditions are required to haveexisted at the time of declaration, namely, it is necessary that thedeclarant should have been in actual danger of death; that he shouldhave been aware of his danger and have abandoned allhope of recovery and that death should have ensued. Theseconditions make it as clear as possible that the statements renderedAdmissible as dying declarations must have been made afterthe injury which resulted in his death had been sustained by thedeclarant.
Under our law, however, such statements are relevant whether theperson who made them was or was not at the time when theywere made under expectation of death.
The argument contra based on this variation from the Englishlaw is that section 32 (1) is applicable to statements made antecedentto as well as to statements made after the injury whichcaused the death.
I am unable to adopt this argument.
Section 32 (1) of our Ordinance reproduces section 32 (1) of theIndian Evidence Act, 1872, and in the commentary to that sectionby Woodroffe and Ameer Ali it is stated at page 317 that ".-the state-ment must be as to the cause of the declarant's death or as
( 491 )
to any of the circumstances of the transaction which resulted inhis death/' that is, the cause and circumstances of the death andnot previous or subsequent transactions, such independent trans-actions being excluded as not falling within the principle of necessityon which such evidence is received. This view of the scope of thesection was followed in the case of Autar Singh v. The Crown (supra),where certain statements made by the deceased prior to the injuriesbeing inflicted on him were rejected on the ground that they werenot statements by a dying person as to the injuries inflicted on himor as to the circumstances in which those injuries came to beinflicted.
This decision was, it is true, dissented from in the case of Shiva-bhai Becharbhai v. Emperor (supra). The ratio decidendi in the lattercase was that the words “ as to any of the circumstances of thetransaction which resulted in his death was an enlargement of the-English Law of Evidence which is confined to the statements madeas to the cause of a person's death." This appears to be a mis-conception of the law of England, for Stephen in his Digest onThe Law of Evidence, lays down in Article 26 as follows: —
“ A declaration made by the declarant as ta the cause of his deathor as to any of the circumstances of the transaction whichresulted in his death is deemed to be relevant …
It is therefore less of an authority than the case decided by the.Higher Court of Lahore.
I am of opinion that section 32 (1) of the Evidence Ordinance-,is limited to statements made by a person after he had sustained^the injuries which caused his death and the circumstances in which,those injuries were inflicted.
1 accordingly hold that the statement under reference was not.admissible under section 32 (1) of the Evidence Ordinance.
It was also contended that the statement was admissible undereither section 6 or section 8 o«f the Evidence Ordinance.
Section 6 enacts that facts which though not in issue are soconnected with a fact in issue as to form part of the same .transaction-are relevant whether they occurred at the same time and place or atdifferent times and places.
Whether a particular fact is or is not part df the same transactionis a difficult question—the area of the events covered by the termres gestae depends on the circumstances of each case.
In this case, I. venture to think that the statement made byDingiri Menika to Jane—that she was going to Ttambukkana withthe watcher—does not form part of .the res gestae as there is anabsence ctf a series of events to connect the statement with thefact in issue—whether the prisoner caused the death of Dingiri;Menika.
1987.
Maabssnsz
A«J.
Kingif, AmothPenm
( 492 )
1987.
AX
'■5ES*.
©. Arnett*‘ 'iNw-ero
Section 8 enacts that any fact is relevant which shows orconstitutes a motive or preparation for any fact in issue.
Now, the statement made to Jane in no way establishes a motivefor murder, no does it indicate a preparation on the fact in issue.
I accordingly hold that the statement was not admissible Tindersection 6 or section 8 of the Evidence Ordinance.
I agree to the order proposed by my brother Garvin.:'XjYaxx Grant J.—I agree.