001-NLR-NLR-V-25-LIVERA-v.-ABEYWICKREME-et-al.pdf
NEW LAW REPORTS OF CEYLONVOLUME XXVPresent; De Sampayo A.C.J.
LIVERA v. ABEYWICKREME et aL199—P. C, Matara, 27,222.
Evidence Ordinance, s. 32—Hearsay—Watcher found dead at store—Letter addressed to his master that he was unable to resist single•handed robbers who removed things—Suicide of watcher^—Chargeof robbery against persons disclosed in letter—Is letter admissiblein evidence ?
A watcher was found dead at the store. He left a letteraddressed to his master, stating that accused had forcibly removedfive drums of oil, and that single-handed he was unable to preventit. The accused were charged with murder, but were discharged,as the Magistrate was of opinion that the watcher had committedsuicide from a sense of shame at not being able to protect hismaster’s goods. The accused were then charged with robberyand hurt.
Held, that the letter was inadmissible in evidence at the trialon the charge of robbery.
The statement in the letter was not as to cause of his (watcher’s)death, but as to robbery. It was not a dying declaration.
“The cause of death contemplated in section 32 (1) of theEvidence Ordinance is an external or physical cause, accountingfor the death …. It does not include a case of death bythe persons’s own hand, nor does it refer to a moral cause, suchas the unhinging of the mind or perversion of the will which isthe usual explanation of suicide.’’
'J'HE facts are set out in the judgment.
Soertsz, for the appellants.
Vythialingam, C.C., for the respondent.
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12(60)29
1923.
1923.
Lzvera v.
Abey-wiokreme
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May 22, 1923. De Sampayo A.C.J.—
The most interesting point in this case has reference to theadmissibility of a certain document in' evidence, but before dis-cussing that question some of the facts which led up to the presentcharges against the accused must be stated. One Sedris aliasUpasaka Appu was' the caretaker' or wacther of a citronella estatebelonging to one Charles Wijetunga. He lived on the estate ina house which included a store room. The first accused, Abey-wickreme, was Police Officer of Puwakbadda^ and otherwiseoccupied a good position in the village. He also carried on sometrade, and employed the second, third, and fourth accused. Hepurchased the citronella crop of Wijetunga’s estate for Rs. 860,and converted the same into oil at the distillery on the estate.A sum of Rs. 35 was paid in advance on account of the purchasemoney, and, according to Wijetunga, the arrangement was that theoil after distillation should be stored in the store room and soldwith the concurrence of Wijetunga and the money realized shouldbe paid to him until the balance purchase money was liquidated.He admits that in this way he received further sums of Rs. 267and Rs. 69, for which receipts Y1 and Y 2 were signed and deliveredby his nephew, Wickremesinghe, who acted for him. The firstaccused denied this alleged arrangement, and he 6ays that inaddition to Rs. 267 and Rs. 69 he paid two other sums of Rs. 365and Rs. 92, leaving at the time of the alleged offences only thesum of Rs. 23 still due. On January 27 last Sedris alias UpasakaAppu was found dead, hanging from a beam of the house, andfive drums of citronella oil which were in the store room weremissing. The Mudaliyar of the district visited the place on January28, and made a minute examination of the house, and, amongother things, he found in an almirah the letter (marked L)written by Sedris, and intended for his master Wijetunga. Theletter is undated, but was evidently written on January 26. Hestated in the letter that the first accused with the other threeaccused, all of whom were mentioned by name, had come andforcibly removed the five drums of oil, and that being single-handed he could not prevent the removal.
The accused being suspected of the murder of Sedris, the PoliceMagistrate on January 31 held an inquiry, the result of which wasthat the Police Magistrate came to the only possible conclusionthat Sedris had not been murdered, but had committed suicide.The Police Magistrate accordingly discharged the accused, but asthere was some evidence at the inquiry, especially that furnishedby the letter " L,” that the accused had assaulted the deceased andhad removed the five drums of citronella oil, he directed the headmanto enter a prosecution against the accused for robbery and causinghurt. The headman then on February 10 submitted a report tothe Police Court charging the accused with those offences. Fresh
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proceedings were taken on this report as in a summary case, andthe Police Magistrate ultimately convicted the accused} and passedsentences of imprisonment. In the course of these fresh proceedings,the letter “ L” was tendered and admitted in evidence, notwith-standing an objection taken on behalf of the accused.
The admission of the document was justified by the PoliceMagistrate under section 32 (1) of the Evidence Ordinance. Section32 relates to certain exceptional cases of hearsay evidence, andthe case provided for by sub-section (1) is as follows :—
1923.
Ds SampayoA.C.J.
Livera v.
Abey-
wickreme
“ When the statement is made by a person as to the cause of hisdeath, or as to any .of the circumstances of the transactionwhich resulted in his death, in cases in which the causeof that person’s death comes into question.”
It seems to me that the “cause” of death here contemplated isan external or physical cause accounting for the death. The words“ circumstances of the transaction which resulted in his death ”make this more clear. It does not include a case of death by theperson’s own hand, nor does it refer to a moral cause, such as theunhinging of the mind or perversion of the will which is the usualexplanation of suicide. I shall presently examine the foundationof the charges of robbery and assult, but neither of these thingswas the “ cause” of death or “ the transaction which resulted indeath.” The suicide was due to the man’s own determination,and not anything external to himself. The Police Magistratethinks that the man took his own life from an excessive sense ofshame for not having been able to protect his master’s propertyeffectively. If this is correct, we may see a “reason” for thesuicide, but the reason for the suicide is not the same thing as“its” cause. Moreover, the Police Magistrate’s theory is not borneout by the letter, or by the ordinary course of human conduct. Thedeceased does not in any way indicate that he was going to takehis life on account of the robbery. His master, from all thatappears in the case, is a considerate and reasonable man, and it isdifficult to believe that he would have held the deceased personallyresponsible for the loss of the drums of oil. There is no reasonwhatever to think that the deceased got into a fit of despair onaccount of any anticipation of blame. The letter is not incon-sistent with another theory, namely, that the deceased was for someserious reason going to take his life, but before he did so he wishedto inform his master of the circumstances of the loss of the oildrums. It appears that the deceased’s sister got married aboutthree days before the suicide, and the deceased returned from thewedding on the day of the suicide. The first accused says therewas the usual dowry to be furnished, and he appears to suggestthat the suicide was connected with some trouble on that account.That is, at all events, as good a theory as that of the Police Magis-trate. But, for the purpose of the legal question, I will take the
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1928. Police Magistrate’s view as correct* Is the case, then, against theDe sampayo accused for robbery and hurt, a case in which the cause of Sedris'A.C.J.death “ comes into question ?” I cannot say so at all. The
ZAverav. matter of the inquiry into the cause of Sedris* death had beenAbey- concluded, and the accused had been discharged. The case ofwickreme' rok£ery an(j hurt is a new and different case altogether, and wastried in separate proceedings. The death or suicide, on the theoryof the Police Magistrate, may be incidentally connected with thehistory of the new case; but the cause of the death was finallydetermined, and once for all disposed of at the previous magisterialinquiry,, and it does not come into question again in the new case.It is true that under the Evidence Ordinance, as distinguished fromthe English Law of Evidence, a dying declaration is admissible,not only in a case where the death of the deceased is the subjectof the charge, but also in a case where, whatever the nature of theproceedings may be, the death of the person who made the state-ment comes into question. This extended scope of the EvidenceOrdinance is illustrated by an example stated under section 32 (1).Suppose the question is whether A died of injuries received ina transaction, in the course of which she was ravished ; a statementmade by A as to the cause of her death is admissible on the chargeof rape. The death being due to injuries received from the rape,the cause of death comes into question on the charge of rape. Thisis exemplified by the very case which was cited for the respondentat the argument of the appeal, namely, Queen v. BissounjimMookerjee.1 There, too, the victim had died as a result of injuriesreceived from being ravished. The ravisher was indicted on twocharges of minder and rape. He was acquitted of murder, but con-victed of rape, and the Court held that the girl’s dying declarationwas admissible on the charge of rape. In the present case Sedris’death was not due to injuries received in the course of the robberyor at the hands of the robbers, and Sedris’ statement was not asto the cause of his death, but as to the robbery. He was quiteunharmed when he wrote the letter, and his statement was not adying declaration. It is clear to my mind that in this case thecause of Sedris’ death does not come into question within themeaning of the Ordinance.
In my opinion the letter “ L” was not admissible at the trial ofthe accused on the charges of robbery and hurt. There remains theoral evidence of two witnesses, named Punchi Appu and HinniAppu. The Police Magistrate accepts the evidence of these twowitnesses, principally because it accords with the statements inthe letter with regard to the accused. It is, of course, impossibleto say what the impression of the Police Magistrate would havebeen if the letter had been effectually eliminated from consideration.But even if this evidence is taken as substantially true, the matter1 6 W. R. (Criminal rulings), p. 75,
( « )is not thereby concluded. Punohi Appu is the man who says hesaw the accused on the day in question on a path, each carryinga drum of oil. I have above shortly stated the circumstancesunder which, according to Wijetunga, the oil was stored in thestore room. The oil, even according to Wijetunga, was the propertyof the first accused, but I take it that theft may be committed ofone’s own property, if it be taken from the possession of a personwho has a right to such possession. Wijetunga may be said tohave had a kind of lien on the oil, but the lien would terminateif the money due to him has been paid. There is a conflict ofevidence on the question of payment. With regard to the disputeditems of payment, Wijetunga’s agent, Wickremasinghe, who usedto receive payments, has not been called. Moreover, the firstaccused says that after liquidating the money due to Wijetunga,except as to a small balance of Rs. 23, he delivered to the deceased,Sedris, 106 bottles of citronella oil, and he points to a memorandummade by Sedris on the back of the receipt Y 1 acknowledging thathe had 106 bottles of citronella oil on first accused’s account.The memorandum is undated, but the Police Magistrate makesno comment as to its genuineness or as to the time of its beingmade, and I do not at present see any reason why the first accused’sstatement should not be accepted. There is no doubt that evenif the debt was wholly liquidated, the first accused should havetaken away the balance oil with the consent of Wijetunga orSedris, but assuming the facts are as stated by the first accusedI cannot regard the removal of the oil without such consent asamounting to robbery. The fact appears to be that the disputeis a matter for civil proceedings, and not for a criminal prosecution.I should have said that there is also a charge of house-trespass,but that goes with and falls with the charge of robbery.
The charge of causing hurt depends on the evidence of HiuniAppu, who says that ou the day in question he saw the deceasedand the four accused in a scuffle, the deceased being in the centreof the group, and the accused holding him by the waist. He speaksto no blows or other acts of violence. But his account technicallyamounts to the offence of causing hurt uader section 314 of theCode, and as the Police Magistrate accepts his evidence, the con-viction for that offence may be sustained.
The conviction and sentence for robbery and house-trespass areset aside. The conviction on the charge of causing hurt undersection 314 of the Penal Code is affirmed, and the first accused isordered to pay a fine of Rs. 20, and in default of payment to undergorigorous imprisonment for the period of one mouth, and each of theother accused to pay a fine of Rs. 10 each, or in default to undergorigorous imprisonment for two weeks.
1923.
Dx Sampayo
A.C.J.
Livera v.
Abey-
wickreme
Varied,