KING v. COORAY et al

007-NLR-NLR-V-28-KING-v.-COORAY-et-al.pdf


( 74 )
1926.
Present: Garvin A.C.J., Dalton and Lyall Grant J«T.KING v. COORAY et al.
13—P. C. Colombo, 18,147.
Confession—Statement to police constable—Inference of guilt—Contradicted
by recordedstatement—Useof informationbook—Evidence
Ordinance, ss. 17 and 25.
The accused were charged with the murder of un Inspector ofPolice. At the trial the Presiding Judge, at the instance of thejury, called a witness, who, it was alleged, had heard the accusedcall to a police constable, travelling in a passing ’bus, to thefollowing effect:“ There, your Inspector is killed.” When the
witness denied that he heard such a statement, the Judge read outthe statement made by him and recorded in the Police InformationBook.
Held, that the statement did not amouut to a confession withinthe meaning of section 25 of the Evidence Ordinance.
An admission, which is not a confession, does not becomeobnoxious to section 25 merely because it is found to be at conQictwith a defence set up later.
Dal Singh v. King Emperor 1 followed.
King v. Kalu Banda 2 considered.
Observations as to the purposes for which a Court may use thePolice Information Book during an inquiry or trial.
C
ASE referred cm a certificate by the Attorney-General undersection 355 (3) of the Criminal Procedure Code.
Thomas Cooray, the first accused, along with Elias Dabrerawere charged and convicted of—the first, with the murder ofJmb-Inspector Nambiar; and the second, with abetting the murder.The following defences were taken on behalf of the first accused: —
(a) That he did not commit the assault on the Inspector and wasnot on the scene when the Inspector was killed.
(b) That he killed the Inspector when acting under grave andsudden provocation and at a time when he was under theinfluence of liquor.
{c) That the intention essential to the offence of murder cannotbe ascribed to him as he did the act in a state of intoxica-tion.
At the close of the case for the prosecution the jury expressed awish to hear the evidence of one Martin Cooray, to whom informationof the accident was given by the driver of the omnibus in which»{1917) S6 L. J. 140.* {1912) 15 N. L. R. 422.
( 75 )
Nambiar and the two accused were travelling. Martin Cooray wascalled, and stated that he saw the accused going in a 'bus in onedirection and a police constable in another 'bus going in the oppositedirection, but he did not hear the accused screaming out anythingto the police constable. At this stage the Presiding Judge read thewitness's statement recorded in the Police Information Book: “ Asthe 'bus passed, Thomas and Elias screamed out ‘ There, yourInspector is killed,' and pointed at the constable. ” The witnessdenied having made this statement. Counsel for the defenceobjected to the statement being read, submitting that the statementwas in effect a. confession and was inadmissible under section 25of the Evidence Ordinance.
In view of the witness’s denial, the Judge stated in open Courtthat there was no evidence that the accused made such a statement.
Hayley (with Garvin and Crossette Thambiah), for accused.—Thegrounds of objection could be formulated as follows: —
If it is a confession under section 17 of the Evidence Ordinance,
it would be obnoxious to section 25 of the same Ordinanceas being irrelevant.
If it was inadmissible, whether it was proper^ placed before
the jury, and whether the jury were influenced in theirverdict by the reading out of the statement.
Whether the reading out of the statement was done under
conditions contrary to section 122 (3) of the CriminalProcedure Code.
Section 17 of the Evidence Ordinance joins up " confessionwith “ admission. " Sub-section (2) of section 17 is not contained inthe Indian Act, and is added in our Act to convey some particularmeaning. Under this sub-section a " confession is an admissionso that the definition of “ admission " should be read into that of“ confession. "
In King v. Kalu Banda (supra) it was held that any statementfrom which incriminating circumstances can be inferred would comeunder sections 17 and 25 of the Evidence Act.
Counsel submitted that if it is a statement read in opposition toaccused's defence then it is a confession.
[Garvin A.C.J.—If you eliminate the statutory statement, whatis there incriminating in their statement? I cannot understand howa statement which, to begin with, is not a confession can later becomea confession on the ground (1) that it is contrary to their statutorystatement denying knowledge, and (2) that it is contrary to a defencesubsequently put forward, viz., drunkenness.]
[Grant J.—The police officer has not deposed to the statement.]
The method of proof is immaterial. It is the admission of it thatmatters.
192&
Kingv.Cooray
( 76 )
1926.
King v.Oooray
In every case where the statement, when looked at from the-otherfacts of the case, showed that it was incriminating the evidencewas rejected (vide Erolis Appu v. Sedris, 1 Appuhamy v. Pelis, 2Deonis v. Peris Appu, 3 Queen Empress v. Pandarinath, 4 QueenEmpress v. Matthews 5). In Silva v. Rangasamy * the fact that anaccused made no statement when in police custody to prove hisinnocence was held to be inadmissible.
Questions—no matter whether they are put by the PresidingJudge—must be limited to relevant facts (vide King v. Rengasamy ’).Again, under section 165 of the Evidence Act anything which thelaw makes inadmissible does not become admissible by the merefact that it is brought out oy the Presiding Judge.
In Queen Empress v. Hari Laksman, 8 certain questions were putby the Presiding Judge with a view to institute criminal proceedingsagainst a certain witness, and not with a view to bring out factsrelevant to the case; it was held that the Judge had no power toput such questions.
As regards objection (3), section 122 (3) of the Criminal ProcedureCode may be used only for two purposes: (1) to contradict a witness.
to refresh the memory of the person recording the statement.The purpose of the section is not to contradict a witness merely forthe sake of contradicting him, but to contradict him on some factrelevant to the case. Also see section 145 of the Evidence Act.
Counsel cited in support of his submission Queen v. Sircar * andAlimudin v. Queen Empress.8 * 10 * *
In Hamid v. Karthan, 11 where the information book was used forthe purpose of corroboration, it was held that such use was illegal.Also see Queen Empress v. Manu 12 and Dibble v. Corcoran. 13
The Judge in all cases is restricted to relevant questions.
Under objection (2). As regards section 355 of the CriminalProcedure Code the power of the Court under this section isdiscussed by Pereira J. in King v. Pila. 14
In King v. Henningway 15 the Court elicited by mistake the factof a prisoner’s previous conviction. The conviction was quashed asit was held the jury was influenced.
Mr. Justice Banks in 9 Cr. Ap. R. 69, at 76, speaking of a sectionsimilar to section 425 of the Criminal Procedure Code, says: “Therule is the Court will not act in cases where the jury may have beeninfluenced.
1 Bal. Notes 32.
*4C.W. R. 355.
* 7 Tam. 28.
4 6 Bom. 34.
810 Cal. 1022.
8 5 Bal. Notes 45.
7 (1924) 25 N. L. R. 438.81. L. R. 10, Bom. 185.
813 Sutherlands W. R. Criminal
Rulings 18.
101. L.'R. 23 Cal. 361.
” 4 C. W. R. 363.
1819 All. 390.
18 Criminal Appeal Reports 155.
“ (1912) 15 N. L. R. 453, at 464. .18 A. Ap. Rep. 47.
( 77 )
Similarly, in the case of King v. Pila (supra) the Court held thatthe conviction could not be sustained in cases where irrelevantmatter is let in and it might have prejudiced the minds of the jury.
Counsel also cited Ameer Ali (4th Ed.) 160 and Queen v. Das. 1
Obeyesekere, Deputy S.-G. (with Fonseha, C.C.), for the Crown.—Language used in a Statute must be construed in the light of thecontext in which it appears, and also must be interpreted in such away that it may not lead to any absurdity.
Section 25 of the Evidence Ordinance constitutes an exceptionto the general rule that any statement made by the accused isadmissible in evidence. Two things have to be proved: (1) that thestatement was made to a police officer, (2) that the statementamounts to a confession. When a statement is said to be made byone to another it involves two things: (1) that certain words wereuttered, (2) that these words were heard and received by the other.Can the words said to have been used by the accused amount to aconfession?
Under section 21 of the Criminal Procedure Code the words mayamount to information to the police. If it does not amount to this,it- may very well be an exculpatory statement, in view of thealternative defence set up by the accused, viz., drunkenness.
In Dal Singh v. King Emperor (supra), where a statement wasmade by the accused to a police officer that in view of the enmityexisting between complainant’s party and himself it was likely thata false carge of murder would be brought against him, and thedefence was that he was not there, it was held that this statementdid not amount to a confession and was admissible.
Hayley.—The extracts read irom Dal Singh v. King Emperor(supra) were mostly obiter dicta. This case has no bearing on thequestion of confession, because the point was never raised in DalSingh’s appeal. The only question was whether certain entries inthe Police Diary were rightly admitted. It is not correct to say thatthe defence in the Indian case was that the accused was not present.It is true that there were certain inconsistencies on this point, butabsence was not the defence.
Counsel also cited King v. Sudhamma,2 and submitted that therewas a string of decisions in his favour, and that there must be somefinality on such an important question as the one raised in this case.
Cur. adv. vult.
June 29, 1926. Garvin A.C.J.—
This case comes before us on a certificate by the Attorney-Generalunder section 355 (3) of the Criminal Procedure Code. The historyof the matter and the circumstances under which the point for1 7. L. R. 27 Cal. 295, at $02.8 (1924) 26 N. L. R. 220.
1926,
King v,Cooray
( 78 )
1026.
Gisvrar
A.O.J.
King v.
Cooray
adjudication arose are fully set forth in the written reference. Thefacts material to the point for decision appear in paragraphs 5 and6 of that reference and are as follows: —
At the close of the case for the prosecution, as the jury had
expressed a wish to hear the evidence of one Martin Cooray,the Court called this person as a witness. His name wasnot on the indictment, but .the driver of the omnibus hadstated in his evidence that when the accident occurred hewent off to give information of it to Martin Cooray, as hewas the son of the owner of the omnibus. Martin Cooraylived about half a mile or more on the Cotta side of thespot where the accident took place. The Judge hadpreviously asked foir, and been given the Police InformationBook.
This witness in the course of his examination by the Court
stated:“I saw both these accused at the turn to the
road to Battaramulla 'from the Cotta road. They weregoing along the road in the direction of Cotta. Then a’bus came in the direction of Borella and there was a policeconstable in it. I did not hear these accused screamingout anything to the constable.” At this stage the followingpassage from the witness’s statement to the police wasread out by the Judge:‘‘ As the ’bus passed Thomas and
Elias screamed out ‘ There, your Inspector is killed,’ andpointed at the constable.” The witness replied:“ I did
not say that I heard these accused screaming out to theconstable. I saw something in the first accused’s hands.I cannot say whether it was a knife.”
The point for determination by this Court was whether theaction of the Presiding Judge referred to in paragraph (6) was regular.
The main ground upon which it was thought to impeach theaction of the Judge was that the statement “ There, your Inspectoris killed,” was a confession to a police officer and as such obnoxiousto the provisions of section 25 of the Evidence Ordinance. Inpoint of fact no evidence was tendered of the alleged confession,and it is clear that the Judge stated in open Court that in view ofthe witness’s denial there was no evidence that the accused madesuch a statement.
The gravamen of the complaint is that once the question wasput, the mischief was done, and the jury would be left with theimpression, despite the witness’s denial, that the accused had in factmade the statement which Counsel submitted is a confession to apolice officer. For the purpose of determining in the first instancewhether or not the statement is a confession to a police officer, it maybe assumed that evidence was tendered at the trial that the accusedmade the statement and that it was made to a police officer.
( ™ )
It is enacted by section 25 of the Evidence Ordinance, No. 14 of1895, that “ no confession made to a police officer shall be provedas against a person accused of an offence.’’ The same Ordinancedefines the terms “ admission ” and “confession ’’ as follows: —
17.(1) An admission is a statement, oral or documentary,
which suggests any inference as to any fact ill issue orrelevant fact, and which is made by any of the persons andunder the circumstances hereinafter mentioned.
A confession is an admission made at any time by a personaccused of an offence stating or suggesting the inferencethat he committed that offence.
The term “ admission ” is the genus of which “ confession ” is thespecies. It is not every statement which suggests any inference asto any fact in issue or relevant fact which is a confession, but only astatement made by a person accused of an offence whereby he statesthat he committed that offence, or which suggests not any inferencebut the inference that he committed that offence.
The law does not prohibit the reception in evidence of admissionsto police officers so long as they are in other respects admiss ble inevidence. What is prohibited is the admission in evidence againstan accused person of confessions made to police officers.
The words '* There, your Inspector is killed,” even if they w.ereuttered by the accused persons or either of them does not statethat they committed the murder of the Inspector for which they werelater indicted, nor do they suggest the inference that the accusedor either of them had murdered the Inspector. Had any person inthe omnibus heard this, the inquiry induced by the informationwould surely have been “ when and how was he killed? ” andpossibly, though not very probably, “ by whom? ” It is inconceiv-able that the normal mind would or could have inferred that there hadbeen a murder, and that the person who called out was the mui’derer.
If the plain words of the Ordinance are to be the decisive test ofwhether or not a statement amounts to a confession, this statementclearly does not come within its terms or within the ambit of thrprohibition against the admission of confessions to police officers.
It was argued that any statement by a person accused ofoffence which suggested an inference adverse to the defence set upby him is a confession.Forthisproposition, andindeed for many
extensions and variations ofthisproposition, wewere referred to
the much-quoted case of King v. Kalu Banda (supra) and theIndian cases of Regina v. Pandarinath (supra) and Queen Empress v.Matthews (supra). Inthelocalease cf Kingv. Kalu Banda
a police headman was permitted to say in evidence at the trialthat the prisoner who made a statement to him had not in thatstatement charged Balahamy “ wdth having attacked or threatenedto attack him with aknifeormade any reference to the use
28/9
1926.
GabvtkA.O.J,
King v.Goorag
( 80 )
1926.of a mamoty byhimself.’’ The accused pleaded that he struck
GakvxxBalahamy in exercise of the right of private defence. It was
•AXJ.J,sought to justifythe reception of this evidence under section. 8
“as conduct of aperson accused of an offence. The decision of
Gwraythe Court wasthat the evidence was not admissible under
section'8. The three Judges before whom the matter was argueddelivered separate judgments, but the effect of the judgments isthat the prosecution may not invoke the aid of section 8 to enablea police officer to state what an accused person had not told himunder circumstances which gave rise to the inference that thestatement made to him was a confession.
Lascelles C.J. observes: “ After hearing the arguments of Counseland referring to the cases cited in argument, I am of opinion that*when the headmen were allowed to prove the facts that the accusedmade statements to them and that he had not in these statementsset up the plea of self defence, the headmen were allowed to giveevidence of what was in substance a confession by the accused.And the reason given by Pereira J. for his decision is as follows:“ It is, I think, clear that if evidence of an actual statement suggest-ing an inference adverse to the accused is inadmissible, a fortiorirwould evidence be inadmissible which, in a way, is merely descriptiveof a statement, dnd which carries with it the insinuation that anexculpatory circumstance relied on by the accused for his ,dafellc£was no part of the statement.
The prosecution did not seek to give the statement of the accusedin evidence presumably because it was thought to be inadmissible.The view of the Court seems to have been that the method theyadopted was calculated to produce exactly the same effect as if astatement containing a confession had been placed before the jury.
Wood Renton J., upon whose reference the decision in King v.Iialu Banda {supra) was given, summarizes in the later case of Silvav. Rangasamy {supra) his view of the effect of that decision; Hesays: 44 There was considerable divergence of opinion between theIndian Courts as to whether the fact that an accused person when hewas in custody or in the presence of a police officer made no statementin circumstances in which it might have been expected that if hewere innocent he would speak could be proved against him… The Supreme Court …. held that the
evidence was inadmissible.”
In fact the case of King v. Kalu Banda {supra) was complicatedby other circumstances and did not raise the issue in thissimple form.
There can be no doubt that there have been decisions of thisCourt which indicate that the definition of confession containedin our Ordinance has T>een somewhat obscured by the frequentuse of expressions such as “ inference adverse to the accused;
44 admission of incriminating circumstance,” and “ evidence which
(.81 )
has an incriminating effect, ’ * and indicate a tendency to sweep intothe prohibition created by section 25 statements which had theybeen made to any other than a police officer might not have beenregarded as confessions. A contributing factor to this result is thecitation of early Indian decisions * based upon an enactment whichthough almost identical in most respects with our Ordinance doesnot contain a definition of “ confession." It was repeatedlyargued, and with a measure of success, that the Indian Evidence Actmade no distinction between an " admission " and a “ confession. 'In Queen Empress v. Macdonald 1 and Empress v. Dabee Pershadit was held that there was a distinction between an admission andconfession. This was a step in a direction which in time has led tothe adoption and application by the Indian Courts of the definitionof " confession " in Stephen’s Digest of the Law of Evidence, which is'.the same as the definition of confession contained in our Ordinance.In the interval, as may well be imagined, there grew up a mass ofjudicial decisions in which the expressions such as I have referred tofrequently occur in the endeavour to ascertain a test for determiningwhether or not a particular statement was confession.
Many of the later decisions are not available to us, but the com-mentary on section 25 in Ameer Ali & Woodroffe’s work on the Lawof Evidence supported by numerous citations shows that the law ofIndia is being stabilized on the basis of a definition of confessionwhich is in accordance with the definition of that term in the CeylonEvidence Ordinance.
The case of Dal Singh v. King Emperor (supra), which was carriedto the Privy Council and decided in 1917 and was never previously3ited in this Court, has a most important bearing on the questionlefore us. Dal Singh was indicted for murder. Now, Dal Singh washe first person to give information to the police. He made a longad detailed statement, complaining that he had been assaulted byloban and Jhunni, as a result of which he became unconscious,fertain of his servants, he said, came to his rescue, whereupon hisasailants ran away, while he himself was carried to his house.
E added that Jhunni and Mohan had beaten " their old woman ”a4 were making preparations to bring a false case againsthu.
his statement was given in evidence against Dal Singh at histris for the murder of this woman. Lord Haldane, who deliveredthe judgment of the Bench of which Mr. Justice Ameer Aliwas a member, held that the statement >vas "in no sense aconfssion."
Ccxisel for the appellant submitted that there was nothing inthe cse as reported in the Law Journal or the Law Times Reportsto indate that the point had ever been raised.
1926.
Garvin
A.C.J.
King v.Cooray
iO B. L. R. 2.
2 /. L. R. 6.
( 82 )
1926.
Garvut
A.C.J.
King v.Cooray
Since the argument, I observe from the report of the case in theIndian Official Reports 1 that the point was expressly taken byCounsel who appeared in the Privy Council.
The judgment on the point is this: ” The report is clearlyadmissible. It is in no sense a confession.” Lord Haldane recitesthe abatement in full and proceeds “ it will be observed that thisstatement is at several points at complete variance with what DalSingh afterwards stated in Court. The Sessions Judge regarded thedocument as discrediting his defence. He had to decide betweenthe story for the prosecution and that told for Dal Singh.”
The statement, though it was in confl'ct with the defence set up,and was used for the purpose of discrediting that defence, was heldto be in no sense a confession and admissible against the accusedwho made it to the police. It was a self-exculpatory statement,not a confession, and it did not cease to be a confession because itwas at confl ct with the defence later set up and was used for thepurpose of discrediting that defence.
This decision is fatal to the submission that an admission whichis not a confession becomes obnoxious to section 25 if it is found tobe at conflict with a defence later set up. This submission, if it isto be entertained, will lead to the result that an accused person mayalways exclude evidence of an admiss on made to a police officer bytaking up a position which will b'ring his defence into conflict witlthe admission.1
In the case before us the following defences were taken on beha:of the prisoner: —
That he did not commit the assault on the Inspector and ws;
not at the scene when the Inspector was killed.
That he killed the Inspector when acting under grave fid
sudden provocation and at a time when he was under heinfluence of liquor.
That the intention essential to the offence of murder canot
be ascribed to him as he did the act in a state of imxi-cat'on.
It is said that the statement suggests in regard to each of nesedefences an inference adverse to the accused. The words asdbedto the accused, it is submitted, imply that they were spokenby aperson who had knowledge of the murder, and that surest thatthe accused mufet have been present at the scene at the timerf themurder. In regard to the other lines of defence, the conterion isthat this evidence militates against the plea of intoxication.
But it is very doubtful whether it could, fairly be inferid thatthe person who called out ” There, your Inspector is killed' mustnecessarily have been present at the scene when the Inspe&or waskilled.
11. L. R. 44 Cal. 876.
( 83 )
Assuming, however, that the statement does tend to producesuch an effect, it is not inadnrssible on that ground alone (Dal Singhv. King Emperor (supra) ). The general rule in regard to admissionsis that they may be given in evidence against the persons who madethem. If every statement made by an accused person to a policeofficer is to be shut out because it conflicts with or tends to dis-credit a defence or any one of the defences—not always reconcilablewith each other—taken on his behalf, then no admission by anaccused person to a police officer may be given in evidence againsthim. This involves the* extension and application to admissions ofthe rule of exclusion which the Legislature has limited to confessions.We must apply the law as it has been enacted. In no sense is thisstatement a confession.
It is not necessary, therefore, to consider the submission of theSolicitor-General that under all the circumstances in which thewords were uttered they cannot fairly be said to be a statement“ made to a police, officer. ” The foundation of the plea that theaction of the Presiding Judge was irregular is the contention thathis question had the effect of placing before the jury evidence of aconfession to a police officer. With the failure of that contention thevhole foundation for the plea of irregularity disappears.
In the absence of a statement from the learned Judge it ismpossible to say exactly what purpose he had in view when headdressed this question to the witness. But it is not difficult toconceive of many purposes for which the question may legitimatelyhave been put.
The information book is "the record of an investigation intoa cognizable offence made by a police officer in charge of a stationor a subordinate officer deputed by him for the purpose or byan inquirer. Statements made by persons to police officers orinquirers and so recorded may be used for the purpose of provingthat a witness made a different statement at a different time or torefresh the memory of persons who recorded the statements. Butany Criminal Court in a case under inquiry or tral- in such Courtmay use such statements or information, not as evidence, but toaid it in such inquiry or trial.
A Court is entitled to use the information book bo assist it inelucidating points which appear to require clearing up and arematerial for the purpose of doing justice (Queen Empress v. Manu(supra) ). The information book may show that there exists a wit-ness, whom neither sTde has called, able to give material evidencewhich a Judge may think should be placed before a jury. It mayindicate lines of inquiry which should be explored in the highestinterest of justice, or may disclose to a Judge that a witness is givingin evidence a story materially different from the story told by him tothe investigating officer shortly after the offence.
1988.
GiSVIK
AXU;
King v.Gooray
( 94 )
1986*
Garvin
A.OJ,
King v.Coway
The story told by Martin Cooray as to his meeting with theaccused was different to the story he told the police. The conductof the accused as disclosed in the one story was materially differentto their conduct as disclosed in the other. It was competent for aJudge to put such questions as he thought necessary on the point,and if need be to contradict the witness by his statement to the police.
The practice of individual Judges as to the use of the informationbook may vary. Some Judges may prefer not to see it at all ;others may take the view that in the interests of justice the fullestuse should be made of the book; others again may take the viewthat it should be resorted to only when in their judgment thecircumstances of a particular case require such a course if justice isto be done.
But there can be no difference of opinion as to the existence ofthe power or the right to exercise it within the limits set to it bythe law.
There is overwhelming evidence in this case of the guilt of theaccused.
Dalton J.—I agree.
Lyall Grant J.—I agree.
Conviction affirmed.