Nandasena v. Republic of Sri Lanka

037-SLLR-SLLR-1978-79-V2-Nandasena-v.-Republic-of-Sri-Lanka.pdf


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Nandasena v. Republic of Sri Lanka
235
Nandasena v. Republic of Sri Lanka
COURT OF APPEAL.
COLIN-THOME, J., ATUKORALF, J., AND TAMBIAH, J.
S,C. £7/77—HIGH COURT KANDY 74/74.
MARCH 16, 1979.
Evidence Ordinance, sections 24, 25, 26, 27—Meaning of “ o personaccused of any offence, in the custody of a Police Officer ”—Circumstan-tial evidence—Requirements that accused be informed of reason forarrest and cautioned before examination—Detention for over 24-honrperiod imposed by law—Whether prejudice caused to accused—Administration of Justice Law, sections 70(4), 90(8), 91(2).
Held
The words accused of any offence" in section 27 of the EvidenceOrdinance is descriptive of the person against whom evidence relatingto information alleged to be given by him is made provable by secton 27and does not predicate a formal accusation against him at the time olmaking the statement sought to be proved, as a condition of its applica-bility.
The expression “in the custody of a Police Officer” in section 27of the Evidence Ordinance does not necessarily mean formal arrest. Itincludes a situation in which the accused can be said to have come intothe hands of a Police Officer or can be said to have been under somesort of surveillance or restriction.
Where the circumstances are such, that the accused must know thegeneral nature of the alleged offence for which he is detained, thefailure to inform him of the reasons for the arrest in terms of section90(8) of the Administration of Justice Law is purely technical andcauses no prejudice.
The failure to caution an accused in terms of section 70(4) of theAdministration of Justice Law in circumstances where he would havebeen aware, at an early stage of the Police investigations, that he wasunder suspicion for committing murder, does not prejudice him in regardto his defence on the merits.
Although the accused had been detained for over 24 hours by thePolice, this was in the circumstances of this case unavoidable, particu-larly in view of the distances to be travelled and no substantialprejudice had been caused to him.
In a case of circumstantial evidence, the facts may, taken cumula-tively, be sufficient to rebut the presumption of
each fact, when taken separately, may be a circumstance only ofsuspicion.
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Cases referred to
The State of Uttar Pradesh v. Deoman Upadhyaya, (1960) 61 Crim.
J. 1504.
The State v. Memon Mohamed Husain Ismail and another, A.I.R..(195f) Bombay 534.
Petersingham v. Queen, (1970) 73 N.L.R. 537.
Pakala Narayana Swami v. Emperor, A.I.R. (1939) P.C. 47.
Queen v. Murugan Ramasamy, (1964) 66 N.L.R. 266; 66 C.L.W. 81 :(1965) A.C. 1.
Queen v. Sugathapala, (1967) 69 N.L.R. 457.
Aishan Bibi v. Emperor, (1935) 36 Crim. L.J. 14.
Maung Lay v. Emperor, A.I.R. (1924) Rangoon 173.
Jallo v. Emperor, A.I.R. (1931) Lahore 278.
Allah Ditta v. Emperor, (1937) 38 Crim. L.J. 1082.
Umed v. The State of Madhya Pradesh, (1979) 85 Crim. L.J. 7(notes).
Christie v. Leachinsky, (1947) 1 All E.R. 567; (1947) A.C. 573;176 L.T. 443; 63 T.L.R. 231.
Muttusamy v. Kannangara, (1951) 52 N.L.R. 324.
Corea v. Queen, (1954) 55 N.L.R. 457.
Kuruma v. Queen, (1955) 2 W.L.R. 223 ; (1955) A.C. 197; (1955)
1 All E.R. 46.
Noor Mohamed v. R., (1949) A.C. 182; (1949) All E.R. 365; 65T.L.R. 134.
Harris v. Director of Public Prosecutions, (1952) A.C. 694; (1952)
1 All E. R. 1044.
Bhomanipur Banking Corporation Ltd. v. Sreemati Durgesh Nandini
Dasai, A.I.R.. (1941 > P.C. 95.
Perera v. Ja-Ela, Police, (1959) 61 N.L.R. 260.
Gadiris Appu v. King, (1951) 52 N.L.R. 344.
t2l) Me Greevy v. Director of Public Prosecutions, (1973 ) 57 CrimA. R. 424; (1973) 1 All E.R. 503; (1973) 1 W.L.R. 276.
(22) King v. Guneratne, (1946) 47 N.L.R. 145.
APPEAL from a conviction in the High Court, Kandy.
S. K. Sangakkara, for the accused-appellant.
Upawansa Yapa, Senior State Counsel, for the Attorney-General.
Cur. adv. vult.
May 15, 1979.
COLIN-THOME, J.
The accused-appellant was indicted under two counts as follows :
With having on 7.2.1974 committed murder by causing the
death of D. G. Podiappuhamy of Elamulla, an offencepunishable under section 296 of the Penal Code.
With committing robbery at the same time and place of
a sum of Rs. 120 from the said D. G. Podiappuhamy,thereby committing an offence punishable undersection 390 of the Penal Code.
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At the close of the trial the jury unanimously found the accused*appellant guilty under both counts, He was sentenced to death'under count 1 and to 4 years rigorous imprisonment under count 2,
The prosecution case relied wholly on circumstantial evidence,The post-mortem was held on the deceased on 9.2.1974 at 3.45 p.m.by Dr. D. W. Devasirinarayana, District Medical Officer, NuwaraEliya. The deceased was a well-nourished man, aged 53 years,5' 3" in height. He had fifteen injuries. He had eight incisedwounds on his head which had fractured the skull and laceratedthe brain. An incised wound on the left wrist opening into thejoint cavity and two lacerated wounds on the right wrist frac-turing the ulna. An incised wound on the left calf muscle andtwo incised wounds on the right leg, bone deep. A contusion onthe right upper arm. Death was due to shock and haemorrhagefollowing multiple injuries on the body together with lacerationof the brain.
According to Dr. L. W. S. Fernando, District Medical Officer,Rikkillagaskada, on 9.2.1974 he examined the accused-apppellantand found the following six injuries on him. Two nail markabrasions on the front side of the neck l" X !"• Abrasions on thefront of his chest below the collar bone. Abrasions on the leftfront side of chest. Abrasions on the back of his body on the baseof the spinal cord. Abrasions each about 4" long on the back ofthe left leg. Abrasions 4t,f long on the back of the right leg. i
In the doctor’s opinion the first injury could be nail marks.All the injuries were about two days old. Injuries number 3, 4, 5and 6 could not have been the result of a struggle with anotherperson. They may have been caused by barbed wire or by somepointed object such as a thorn.
W. Leelawathie, widow of the deceased, stated that at the timeof the death of the deceased they were living in a colony at KudaOya. The accused-appellant and his family lived in the samecolony. On the day her husband died he wanted to go with theaccused-appellant to Maturata to bring rice and he took Rs. 120in cash with him. At this time there was a scarcity of rice atKuda-Oya.
The deceased and the accused-appellant set out along a junglefootpath leading to Maturata at about 12 noon on 7.2.1974 Herhusband took two manure bags (P6) to bring the rice. He waswearing a towel (P7) on his head. She identified his sarong (P8)and his coat (P9).
Sometime later the accused-appellant stood at a snot abovetheir house and raised cries saying two Tamils were dragging
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Podiappuhamy Mama. Her step-son Patty Mahatmaya with someothers left to bring the deceased after persuading her to stay athome.
At about 5 p.m. they brought her husband. He was alive butunable to speak. He opened his eyes and looked at them. Hisclothes were stained with blood. The accused-appellant also camethere. He led the others to the spot where the deceased was. Thedeceased was removed to hospital at about 5.30 p.m.
: D. Sayaneris Silva, son of the deceased, known as Patty Mahat-maya, stated that on the day of the incident before setting outwith the accused appellant the deceased borrowed money fromRatnayake. Between 12.30 and 1.00 p.m. the accused-appellantreturned alone and raised cries : “ Podiappu mamata demalunkotala adhagena yanawa!
He went up and asked the accused-appellantwhat happened and the accused-appellant told him that when heand the deceased were going down a hill two Tamils came up.Then he and the deceased sat down as they were tired. The Tamilscut two clubs and came there. At that stage the accused-appellantwent to answer a call of nature. Then he heard a noise and whenhe came up he found that the deceased had been cut on his head.He went to help the deceased who was about to fall. Then theTamils tried to stab him and he took to his heels.
At the time when Sayaneris questioned the accused-appellantbefore they went to the scene, he noticed bloodstains on theaccused-appellant’s clothes, face and hand. He accompanied theaccused-appellant to the spot where the deceased was togetherwith six or seven others. When they approached the spot theyheard the deceased crying out “ Ammo!, Ammo ! ” close to thefootpath. His father was not able to talk. They brought the de-ceased back and sent him to hospital.
• Under cross-examination he stated that as they came close tothe spot where the deceased was the accused-appellant got be-hind. He noticed signs of a struggle at the spot. The fertilizerbags which the deceased had taken when he set out from hishome were not to he seen. The deceased had taken Rs. 120 whichhe kept in the inside pocket of his coat. He saw the accused-appellant leaving with his father.
Ratnayake M. Ran Banda stated that on the day of the incidentthe deceased borrowed Rs. 120 from him to buy rice and he gavehim Rs 120 consisting of one Rs. 100 note and twn Rs. 10 notes.One of the Rs. 10 notes was torn and it was pasted with a pieceof stamp edge fP2). He gave this money to the deceased between12.30 and 1 p.m. on 7.2.1974 and the deceased put the money intohjs pocket.
Nandasena v. Republic of Sri Lanka (Colin – Thome, J.)239:
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M,Sirineris Silva, brother of the deceased, followed the crowdthat went to the spot where the deceased was lying fallen. The.accused-appellant was among the crowd and he too carried thedeceased back to the colony. Sirineris Silva questioned the accus-ed-appellant who told him that when he and the deceased weregoing to buy rice they met two Tamils and just at that stagehe went to answer a call of nature. When he returned he saw the ideceased being cut and dragged into the jungle. The two Tamilachased after him and he ran. He did not know the reason for the •attack by the Tamils. He said that the deceased had money andwhen they entered the jungle the deceased gave him Rs. 100. Hedid not know what further amount of money the deceased had.The accused-appellant’s father told the accused-appellant to handover the Rs. 100 note to him. Sirineris Silva did not observe anyinjuries on the accused-appellant nor any bloodstains on his bodyor clothes.
N.M. Ariyasena was another witness who questioned the accus-ed-appellant. The accused-appellant told him that the deceasedwas; cut by two Tamils and that he escaped and came running.He noticed blood on the face and shirt of the accused-appellantand his shirt was torn. It was similar to P3. This was at the timethe accused-appellant raised cries that the deceased had beenattacked by two Tamils before they carried the deceased backhome.
Under cross-examination he stated that the accused-appellantassisted in bringing the deceased back to the colony and therewere bloodstains on his hand.
Chandradasa, Sub-Inspector, Maturata Police Station, statedthat he received a message from the Nuwara Eliya Police Stationon 7.2.1974 at 8.15 p.m. about the death of the deceased. He leftMaturata at 8.15 p.m. and reached Nuwara Eliya at about 1 a.m.on 8.2.1974. Nuwara Eliya was about 30 miles from Maturata.When he reached the Nuwara Eliya Police Station, the accused-appellant was seated in the verandah. His shirt P3 was handedover to him by the Reserve Officer. He came back to the MaturataPolice Station but did not take the accused-appellant into custodyimmediately. At Nuwara Eliya he questioned the accused-appel-lant and after questioning him he took him to the MaturataPolice Station where he recorded his statement at about 3.30 a.m.on 8.2.1974. At that time he took the accused-appellant into cus-tody. After he recorded his statement he rested for about onehour and thereafter went to the scene of the incident with theaccused-appellant and two other police officers,.
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As a result of statements made by the accused-appellant Ins-pector Chandradasa recovered certain productions. The accused-appellant stated: “ I can show the police where the knife ishidden” (XI). In consequence of this statement Inspector Chan-dradasa recovered a pruning knife (PI). “ I can show the placewhere the towel and the empty manure bags were hidden ” (X2).In consequence of this statement he recovered the towel (P7)and two empty manure bags (P6). Below X2 the accused-appel-lant stated : “ I can show them to the police ”. In consequence ofthis statement Chandradasa recovered two Rs. 10 notes withstains’like blood (P2).
lie recovered the knife (PI) from under the roots of a treeabout 20 feet from the footpath and about 500 feet away from theplace of the incident. There were stains like blood on the knife.The towel and two empty bags were recovered from under astone which was like a cave about 40 feet from the road. The twoRs. 10 notes were recovered about 1J miles away from the placeof the incident in the direction of the colony under a rock calledLaula gala. Near the rock there was a bush and the two Rs. 10notes were found there. At the scene of the incident there weresigns of a struggle and stains like blood on a tree by the side ofthe road to the height of about 3 feet. The grass was damagedand appeared to have bloodstains. There were bloodstains onsome bushes as well.
Weerapura colony was about 4 to 5 miles away from the placeof the incident. Chandradasa forwarded PI, P2, P3 and P4 withsamples of the blood of the deceased to the Government Analystfor report. He took charge of the clothes of the deceased—P8, P9and P10—at the post mortem examination.
Under cross-examination Chandradasa conceded that he pro-duced the accused-appellant before the Magistrate only on10.2.1974 outside the 24 hour limit. He was unable to produce himearlier as he had no time to do so. He denied that he assaultedthe accused-appellant. On 9.2.1974 he got the accused-appellantexamined by the doctor. He had no time to do so on 8.2.1974.
He denied the suggestion that he had introduced the produc-tions at the scene in order to fabricate a case against the accused-appellant. He stated that the witness Sirineris handed to himthe Rs. 100 note (P2).
Inspector Siriwardene, Officer-in-charge of the Nuwara EliyaPolice Sation, stated that the accused-appellant came to theNuwara Eliya Police Station on 7.2.1974 and he commenced re-cording his statement at 6.30 p.m. He took charge of the shirtworn by the accused-appellant (P3). He informed the MaturataPolice Station about this incident as it had taken place within
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the Maturata Police area. Thereafter when the Maturata policeofficer came to the Nuwara Eiiya Police Station the accused-appellant was handed over to him.
According to the Government Analyst’s report fairly heavyhuman bloodstains were identified on the surface of the curvedknife (PI). There were small but fairly thick human bloodstainson the shirt P3. The very thin stains in the areas marked in redon the surface of the three currency notes P2 (one Rs. 100 andtwo Rs. 10) gave an elementary but positive reaction. But never-theless as the bloodstains were not sufficient these were notconfirmed by other analyses for blood.
At the close of the prosecution case the accused-appellant calledhis father R. M. Peter Silva as a witness. He said that on the dayof this incident on 7.2.1974 between 12 and 12.30 p.m., the deceasedcame to his house and told his son, the accused-appellant,: “ Keepthis money for the rice. ” So saying he gave Rs. 100 to the accused-appellant who put it in his trouser pocket under his sarong, whenthe deceased came he had a bag similar to P6. Thereafter the twoleft. Later he heard a commotion and saw people going into thejungle and he too went. Thereafter he met the accused-appellantat the time the deceased was being brought. He saw his son givingsomething to the witness Sirineris Silva.
Under cross-examination Peter Silva was contradicted by anextract from his police statement X5, where he had not specifiedthe sum as Rs. .100. He had also made his statement to the policebelatedly on 9.2.1974.
The accused-appellant gave evidence after that. He denied thathe committed the murder. He admitted that he made a statementto the Nuwara Eiiya Police. He denied that he made a secondstatement to the Maturata Police. On 7.2.1974 between 12 noon andand 1 p.m. the deceased asked him to get ready to go to Maturatato bring rice. Even prior to that occasion he had done so at therequest of the deceasd. The deceased gave him Rs, 100 and askedhim to keep it to purchase rice. On earlier occasions too the de-ceased had given him Rs. 200 or Rs. 300 to buy rice. He keptthe Rs. 100 in his trouser pocket under his sarong and at that timethe deceased had another Rs. 20 with him which he said that hewould keep for expenses.
They proceeded about 3 or 4 miles along the jungle footpath.While going inside the jungle they met the two Tamils. Theyasked something from the deceased who gave them beedies anda box of matches. When they were talking it became necessaryfor him to answer a call of nature. When he was attending to thisfunction he heard a cry “ Ammo! ” and when he came back he
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saw the deceased bleeding from his head. One of the Tamils washolding him by his neck and he had a knife in his other hand.This person tried to cut him with the knife but he warded it off.The knife alighted on a tree and was thrown off. Then he struggl-ed with that person and he could not say whether anything got.smeared on his body while he was struggling with him. He ranto the village to inform the people.
He denied that he hid the Rs. 20 and the manure bags. Therewere streams in the jungle but it did not strike him to wash offthe blood at that time. He did not have time to do so. He ran tothe colony and raised cries and several people came. He told thembriefly what had happened when he went to answer a call ofnature. Thereafter he came to the place of the incident alongwith those people and showed them where the incident occurred.He assisted them to take the deceased back to the village andat that time the blood of the deceased got smeared on him.
On the way back from the jungle he gave the Rs. 100 to thedeceased’s younger brother. From there he went to the NuwaraEliya hospital and then to the Nuwara Eliya Police Station wherehis statement was recorded. At about 2 a.m. on the following dayhe was brought to the Maturata Police Station. After that hew’ent to the place where the deceased was attacked and wherethe Tamil person tried to cut him. He showed the police the placewhere the knife was thrown. He did not hide the knife. He wasproduced before the doctor on the following day. He was assault-ed by the police but he could not remember when he was pro-duced before the Magistrate. He could only sign his name. Hecould not read or write. He had been to school only up to theLower Kindergarten. He could count. He did not show any pro-ductions to the police nor did he hide them.
Under cross-examination he stated that the deceased gave himthe Rs. 100 in the compound in the presence of his father. Headded that he had passed half the distance of the compound whenthe money was given to him. He denied that he told the NuwaraEliya police that the Rs. 100 was given to him on the way toMaturata along the footpath. He was then pointedly asked whe-ther he made this statement to the Nuwara Eliya Police : “ Ithen proceeded about 2 miles along with him through a footpathwhich is a short cut to Maturata. On our way he gave me a Rs. 100note and asked me to keep it. ” He denied making this statementto the police and this contradiction was marked X6.
The accused-appellant stated that when one of the Tamil per-sons raised a knife to cut him he warded off the blow. That blowalighted on a tree and may have dropped there. Thereafter hestruggled and came running after escaping from him. At that
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time he was held by the collar. The accused-appellant was thenasked the following question:
“ Q : Did you tell the police : ‘ When I went to run away theperson who was with the knife held me by my shirtfrom behind ’ ?
A : I was held on the back of my neck with the shirt. ”
He stated that when the deceased was being brought from thescene the blood got smeared on his face. He did not know thatblood was smeared on his hand and body when he first came outof the place of the incident along the footpath. He admittedthat he did not tell his counsel that he was assaulted by thepolice. He was shown the knife PI and he said that he had neverseen it before. The Tamil person had a long knife not a curvedknife like PI.
Inspector Siriwardene was re-called by the defence and acertified copy of the accused-appellant’s statement which wasrecorded by him was; produced marked DI.
In the course of Dl the accused-appellant had stated that atabout 1.15 p.m. on 7.2.1974 the deceased and he left for Maturata.When they were proceeding the deceased gave him an empty bag.He said : “ I then proceeded about 2 miles along with him througha footpath which is a short cut to Maturata. On our way he gavea Rs. 100 note to me and asked me to keep it. He then told methat he had Rs. 20 with him. Then both of us from this spotwalked about another 2 miles. Then at about 2.30 p.m. two personsdressed in khaki trousers and white shirts came in the oppositedirection. At this spot Podiappuhamy lit a beedi and I then wentinto the thicket to answer a call of nature. When I was proceedingI observed the two persons walking back towards Podiappuhamyand one person wanted a box of matches having had a beedi inhis mouth. Podiappuhamy then gave him a box of matches. Thenthe other person wanted a beedi from Podiappuhamy. These threepersons were chatting with each other. I was asked by Podiappu-hamy to come back early. At this stage I was answering a call ofnature. I then heard a loud cry and on hearing it I rushed up tothe spot and observed bleeding injuries on Podiappuhamy’s headand one person holding him by his neck and another personhaving a knife. The person who was with a knife came to stabme and in consequence of this it alighted on a tree and the knifefell on the ground. When I went to run away the person who hadthe knife held me by my shirt from behind. I then rushed to thevillage and informed the villagers.”
The main submissions of substance of learned Counsel for theaccused-appellant were:
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That the facts deposed to by S.I. Chandradasa in connectionwith the production of the knife (PI), two Rs. 10 notes (P2),two manure bags (P6) and the towel (P7) established that thesearticles were not discovered in consequence of information re-ceived “ from a person accused of any offence, in the custody ofa police officer. ” The evidence of S.I. Chandradasa, therefore,contravened section 27(1) of the Evidence Ordinance and wasinadmissible and vitiated the whole trial.
There was no evidence that the charge had been explainedto the accused-appellant by S. I. Chandradasa before arrestinghim without a warrant. It was submitted that this was a fatalirregularity which contravened section 90 (8) of the Administra-tion of Justice Law, No. 44 of 1973.
There was no evidence that S.I. Chandradasa before examin-ing the accused-appellant informed him that he was bound toanswer truly all questions relating to the case, except such ques-tions as have a tendency to expose him to a criminal charge, asrequired by section 70 (4) of the Administration of Justice Law.
The accused-appellant was arrested without a warrant on8.2.1974 at 1 a.m. but he was produced before the Magistrate on10.2.1974. S.I. Chandradasa could have produced him before theM gistrate on 9.2.1974 as he had gone to Nuwara Eliya with theaccused-appellant for the post mortem examination. Therefore,the accused-appellant had been illegally detained over the 24 hourlimit by Chandradasa contravening sections 85(5) and 91(2) ofthe Administration of Justice Law. The learned trial Judge hadnot directed the jury about this illegal detention which couldhave influenced the jury to doubt the credibility of the Sub-Inspector when he stated that the accused-appellant had pointedout to him certain productions at the scene.
The learned trial Judge had misdirected the jury on theassessment of contradictions.
The circumstantial evidence did not establish the chargesagainst the accused-appellant beyond reasonable doubt.
In The State of Uttar Pradesh v. Deoman Upadhayaya (1)at 1508 and 1512* four of the five Judges of a Full Bench of theSupreme Court held that: “ the expression, ‘ accused person ’ insection 24 (of the Evidence Act) and the expression ‘a personaccused of any offence ’ in section 25 have the same connotationand describe the person against whom evidence is sought to be
led in a criminal proceeding•. The expression, ‘ accused
of any offence ’ in section 27, as in section 25, is also descriptiveof the person against whom evidence relating to information al-leged to be given by him is made provable by section 27 of the
CA Nandasena v. Republic of Sri Lanka (Colin – Thome, J.)245
Evidence Act. It does not predicate a formal accusation againsthim at the time of making the statement sought to be proved,as a condition of its applicability. ” Per Shah, J.
Hidayatullah, J. stated at p. 1524 that: “ the law was framedto protect a suspect against too much garrulity before he knewthat he was in danger which sense would dawn on him whenarrested and yet left the door open to voluntary statements whichmight clear him if made but which might not be made if a cautionwas administered. Without the caution being announced the sus-pect is not in a position to know his danger, while a person arrest-ed knows his position only too well. ”
Dealing specifically with section 27 at p. 1525, the learned Judge
added: “ In English Law, the caution gives him the necessarywarning and in India the fact of his being in custody takes theplace of caution which is not to be given. There is, thus, a cleardistinction made between a person not accused of any offencenor in the custody of a police officer and one who is. ”
Hidayatullah, J.’s learned analysis is the key to the explana-tion why the disjunction ‘or’, which originally connected theexpressions ‘ a person accused of any offence' and ‘in the custodyof a police officer ’ in section 150 of the Indian Code of CriminalProcedure as amended by Act VIII of 1869, was omitted in thecorresponding section 27 of the Indian Evidence Act of 1872. Therelevant portion of section 27 of the Indian Evidence Act of 1872,which is identical with section 27 of Evidence Ordinance of SriLanka, reads;: ‘from a person accused of any offence, in thecustody of a police officer. ’
The construction in Deoman's case (supra) was adopted earlierin The State v. Memon Mohamed Hussain Ismail and another (2)at 536, where it. was held that the words information receivedfrom ‘ a person accused of any offence ’ in section 27 cannot beread to mean that he must be an accused when he gives the infor-mation but would include a person if he became subsequentlyan accused person, at the time when that statement is sought tobe received in evidence against him.
In P. P. Petersingham v. The Queen (3) Alles, J. after consi-dering the above and other cases stated that he did not think itwas necessary to decide which interpretation of the words‘ accused of any offence ’ in section 27 is correct. However, he ex-pressed the view at p. 543 that: “ it is reasonable to argue thatthe words * person accused of any offence ’ in section 27 does notnecessarily mean a person against whom a formal accusationfor an offence is made. ” In this case an important item of the evi-dence was the discovery of certain articles by a police officer inconsequence of a statement (P43) made by the appellant and
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recorded by the police officer when the appellant was under sus-picion and in the custody of the police officer. It was only there-after cha; the appellant was brought to his house, the charge wasexplained to him and he was arrested. It was contended that thestatement P43 was not admissible as it did not conform to theprovisions of section 27(1) of the Evidence Ordinance since theappellant was not ‘ accused of an offence ’ at the time he madethe statement which led to the discovery of the articles. Alles, J.,held that even assuming that evidence under section 27 of theEvidence Ordinance could be led only if the appellant was a per-son accused of an offence at the time he gave the information,the statement F43 made by the appellant was relevant and ad-missible for the reason that, before he made it, he was well awarethat a charge of murder was being investigated against him andthat he was being accused of the offence.
Sections 24 to 30 of the Evidence Ordinance deal with the ad-missibility of confessions. By section 24 a confession made byan accused person is irrelevant in a criminal proceeding if themaking of the confession appears to the Court to have been pro-duced under the stimulus of any inducement, threat or promise,having reference to the charge and proceeding from a person inauthority. Under section 25 there is an absolute embargo againstproof at the trial of a person accused of an offence of a confessionmade to a police officer. The partial ban under section 24 and thetotal ban under section 25 apply equally whether or not the personagainst whom evidence is sought to be led in criminal trial wasat the time of making the confession in custody or whether ornot he had been accused of any offence at the time he made theconfession. It is clear, therefore, that the words ‘ accused person ’in section 24 and ‘ a person accused of any offence ’ in section 25(the identical words appear in sections 25 and 27) have the sameconnotation and are descriptive of the person against whomevidence is sought to be led at a criminal proceeding. In PakalaNaravana Swami v. Emperor (4) at 52, Lord Atkin observed that:“Section 25 covers a confession made to a police officer beforeany investigation has begun or otherwise not in the course of aninvestigation. ”
Section 26 prohibits proof of a confession by a person whilstin custody of a police officer, unless it is made in the immediatepresence of a Magistrate. Section 27 (t) which is in the form of aproviso states:
“ 27(1) Provided that, when any fact is deposed to as discov-ered in consequence of information received from aporqon nr-cus^d of ar>v offence, in the custody of apolice officer, so much of such information, whether
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it amounts to a confession or not, as relates distinctlyto the fact thereby discovered may be proved. ”
Section 26 and section 27 do not necessarily deal with evidenceof the same character. By section 26 a confession made in the
presence of a Magistrate is made provable in its entirety. Section27 is concerned with the proof of information whether it amountsto a confession or not, which leads to discovery of facts, and onlythat much of the information is admissible as distinctly relatesto the fact discovered.
Section 27 is based on the doctrine of confirmation by sub-sequent facts. Even though evidence relating to confessional orother statements made by a person, whilst in the custody of apolice officer, is tainted and therefore inadmissible, if the truthof the information given by him is assured by the discovery of afact, it may be presumed to be untainted and is, therefore,declared provable in so far as it distinctly relates to the factthereby discovered. Only that portion of the information can beproved which relates distinctly to the facts discovered.
As Viscount Radcliffe observed in The Queen v. MuruganRamasamy (5) at 268 :
“Section 27, on the contrary, envisages a situation inwhich circumstances themselves vouch for the truth ofcertain statements made by an accused person, even thoughthey are made in conditions that would otherwise justifysuspicion. These are those statements that have led to theactual discovery of a proven fact when the informationsupplied by the accused has been the cause of the discovery.The principle embodied in section 27 has always beenexplained as one derived from the English common law andimported into the criminal law of British India by thelegislators of the mid-nineteenth century. It can be tracedin English Jaw as early as the late eighteenth century, see
R.v. Warickshall, (1783) 1 Lea. 263 and R. v. Butcher,(1798) 1 Lea. 265n. The principle was stated by Baron Parkein the trial of Thurtell and Hunt (1825) (See NotableBritish Trials, page 145), where he said “A confessionobtained by staying to the party ‘ You had better confess orit will be worse for you’ is not legal evidence. But,though such a confession is not legal evidence, it is every daypractice that if in the course of such confession that partystates where stolen goods or a body may be found and theyare found accordingly, this is evidence, because the factof the finding proves the truth of the allegation, and hisevidence in this respect is not vitiated by the hopes orthreats that may have been held out to him. ”
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It must be taken as settled, therefore, by Ramasamy’s casethat section 27 of the Evidence Ordinance is an exception and aproviso to all the three preceeding sections 24, 25 and 26. SeeThe Queen v. Sugathapala (6) at 459 (per H, N. G. Fernando,C. J.)
For the reasons enumerated above, I am in respectful agree-ment with the interpretation of the majority of the Judges inThe State of Uttar Pradesh v. Deoman Upadhyaya (supra)and I hold that the words ‘ accused of any offence ’ in section 27of the Evidence Ordinance is descriptive of the person againstwhom evidence relating to information alleged to be given byhim is made provable by section 27 and that ‘ it does not predicatea formal accusation against him at the time of making thestatement spught to be proved, as a condition of its applicability.'
With regard to the expression ‘in the custody of a policeofficer ’ in section 27 it does not necessarily mean formal arrest.In Aishan Bihi v. Emperor (7) at 15, where a person had notbeen formally arrested but had been a suspect from the begin-ing and had apparantly been treated as an accused person andmuch restraint on his movements was not imposed as he couldhardly have absconded, it was held by the Lahore High Courtthat he was in police custody and that the statements given byhim in consequence of which recoveries were made could beproved under section 27 of the Evidence Act.
This case adopted the same principles followed in Maung Layv. Emperor (8) and Jallo v. Emperor (9). In Maung Lay v.Emperor (supra) it was held that as soon as an accused or sus-pected person comes into the hands of a police officer, he is, inthe absence of clear and unmistakeable evidence to the contrary,no longer at liberty and is, therefore, in custody within themeaning of sections 26 and 27 of the Evidence Act. In otherwords, a detention of a person by the police as a suspectamounted to his being in police custody.
In Allah Ditta v. Emperor (10) at 1085 it was held that: (a)in order that a statement under section 27 be admissible, themaker of the statement should be in the custody of the police,but that custody need not be a formal arrest; (b) in the caseof mere suspects who have not been formally charged with anyoffence or arrested under any section of the Criminal ProcedureCode their presence with the Police under some restraintamounts to ' custody ’ which is contemplated by section 27 ; and(c) if a statement made by a person in the above circumstances,leads to the discovery of any matter, it is admissible.
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In a recent case timed v. The State of Madhya Pradesh (11)it was held that the word ‘ custody ’ in section 27 cannot be saidto mean only when the accused is actually taken into custodyby the police officer. It also includes such state of affairs in whichthe accused can be said to have come into the hands of a policeofficer or can be said to have been under some sort of surveil-lance or restriction.
The above principles, with which I agree, have to be appliedto the facts of the instant case. It is true that S. 1. Chandradasastated in evidence that at the Maturata Police Station: “ Irecorded his statement at about 3.30 a.m. on 8.2.1974. At thattime I took him into custody.” However, all the circumstancesin the case have to be examined in order to decide this question.
According to Inspector Siriwardene on 7.2.1974 the accused-appellant made a statement at the Nuwara Eliya Police Stationwhich was recorded at 6.30 p.m. After recording this statementD1 the accused-appellant’s shirt (P3), which was torn andaccording to the Government Analyst’s report had thick stainsof human blood, was taken charge of by Inspector Siriwardene.Thereafter, he sent a message to the Maturata Police Stationand the accused-appellant was handed over to S. I. Chandra-dasa at 1 a.m. on 8.2.1974. Chandradasa questioned the accused-appellant and took him in a jeep to Maturata which was about30 miles away.
It is clear from the evidence that from the moment theaccused-appellant’s statement was recorded at Nuwara Eliya andhis bloodstained and torn shirt was taken charge of he wassuspected of the alleged offence of murder. He was, therefore,under police surveillance from then onwards and continued toremain in the presence of police officers until he was producedbefore the Magistrate on 10.2.1974, and throughout this periodhis movements were restricted. I, therefore, hold on a considera-tion both of the direct and circumstantial evidence that theaccused-appellant from the time he made his statement atNuwara Eliya and his shirt taken charge of he was in thecustody of a police officer and he continued to remain in thecustody of Chandradasa until he was produced before the Magis-trate on 10.2.1974. I hold, therefore, that the facts deposed by
S.I. Chandradasa as discovered in consequence of informationreceived from the accused-appellant, as they related distinctlyto the facts thereby discovered, did not contravene section 27(1) of the Evidence Ordinance and were admissible.
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Learned Counsel’s next submission was that there was noevidence that the charge was explained to the accused-appellantby S. I. Chandradasa before he was taken into custody and thatthis omission was a fatal irregularity as it contravened section~90 (8) of the Administration of Justice Law which lays downthat “ where a person is arrested without a warrant the personmaking the arrest shall at the time of the arrest inform suchperson, as far as practicable, of the reasons for his arrest.”
In Christie v. Leachinsky (12) (House of Lords) at 572,Viscount Simon laid down certain propositions as follows :
“If a policeman arrests without a warrant on reasonablesuspicion of felony, or of other crime of a sort which doesnot require a warrant, he must in ordinary circumstancesinform the person arrested of the true ground of arrest. Heis not entitled to keep the reason to himself or to give areason which is not a true reason. In other words, acitizen is entitled to know on what charge or on suspicionof what crime he is seized. ”
The learned Viscount laid down a further proposition that :
“ The requirement that the person arrested should beinformed of the reason why he is seized naturally does notexist if the circumstances are such that he must know thegeneral nature of the alleged offence for which he isdetained. ”
These propositions were adopted by Gratiaen, J. in MuttvC-samyv. Kannangara (13) at 331 and in D. H. R. A. Corea v. The Queen(14) at 463. In Petersingham v. The Queen (supra) Alles, J. heldthat as the appellant was well aware that a charge of murderwas being investigated against him and that he was beingaccused of the offence the omission to charge the accusedformally at the time he made his statement was in the circums-tances purely technical.
In the instant case, in view of the direct and circumstantialevidence already specified, the accused-appellant must haveknown the general nature of the alleged offence for which hewas detained and, therefore, the failure to observe the require-ments of section 90(8) that the accused-appellant should havebeen informed of the reasons why he was arrested was in thecircumstances only technical and caused no prejudice to theaccused-appellant.
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Learned Counsel also submitted that there was no evidencethat S. I. Chandradasa observed the provisions of section 70(4)of the Administration of Justice Law which required him to in-form the accused-appellant before examining him that he wasbound to answer truly all questions relating to the case exceptsuch questions as have a tendency to expose him to a criminalcharge. This submission is connected with the earlier submissionson the law and the facts.
In Kuruma, Son of Kainu v. The Queen (15) (Privy Council)the appellant was tried on a charge of being in unlawfulpossession of ammunition contrary to regulation 8A(1) (b) ofthe Emergency Regulations, 1952, of Kenya. Evidence of thesearch of and the discovery of the ammunition on the appellantwas given by two police officers who, not being of or above therank of Assistant Inspector had (it was alleged) by virtue ofregulation 29 of the Emergency Regulations no power to searchthe appellant. It was held that the evidence was properlyadmitted. At p. 226, Lord Goddard, C.J., stated that “the testto be applied in considering whether evidence is admissible iswhether it is relevant to the matters in issue. If it is, it isadmissible and the Court is not concerned how it was obtained
— There can be no difference in principle for this purpose
between a civil and a criminal case. No doubt, in a criminal casethe Judge always has a discretion to disallow evidence if thestrict rules of admissibility would operate unfairly against anaccused.” This principle was emphasized in Noor Mohamed v.King (16) at 191-2 and in Harris v. Director of Public Prosecu-tions (17) at 707.
Applying these principles to the facts of this case, I hold thatalthough section 70 (4) of the Administration of Justice Law wasnot fully complied with, as the accused-appellant, at an earlystage of the police investigations, would have been aware thathe was under suspicion for committing murder the error in notcautioning him in terms of section 70(4) did not prejudice himin regard to his defence on the merits. Therefore, the factsdeposed to by S. I. Chandradasa were admissible under section265 of the Administration of Justice Law and as they were rele-vant to the mattens in iss,ue, under the provisions of the EvidenceOrdinance.
Learned Counsel’s next submission was that the accused-appellant was illegally detained by S. I. Chandradasa over the24-hour limit contravening section 91 (2) of the Administration ofJustice Law. He was arrested on 8.2.1974 at 1 a.m. but was pro-duced before the Magistrate Nuwara Eliya only on 10.2.1974.
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Learned Counsel pointed out that on 9.2.1974 Chandradasa waspresent at the post mortem examination held in Nuwara Eliya at
p.m. He could, therefore, have produced the accused appel-lant before the Magistrate on that day. Learned Counsel alsocomplained that the learned trial Judge had not adequatelydealt with this illegal detention in his charge to the jury. It wasa matter that went to the root of the credibility of the Sub-Inspector.
According to the evidence on 8.2.1974 at 1 a.m., the accused-appellant was handed over to S. I. Chandradasa. After question-ing him he went back to Maturata Police Station which wasabout 30 miles away at dead of night. After he reached Maturatahe commenced recording the accused-appellant’s statement at
a.m. He took a rest for about an hour and then went to thescene of the incident. This was about 5 miles away from theWeerapura colony and this journey had to be made on foot.Chandradasa had to walk a minimum of about 10 miles thatday and at the scene he made a search for various productionswhich would have taken time as they were widely scattered.Thereafter, he went back to the Weerapura colony at about4 p.m. on the 8th and he recorded the statements of about sevenwitnesses till about 6 p.m. When he got back to the MaturataPolice Station it was about 10-30 p.m. On 9.2.1974 he continuedto record the statements of Leelawathie and her son commenc-ing at 8 a.m. He also got the accused-appellant examined by adoctor at Rikilligaskada which was about 12 miles away fromMaturata. This again would have taken much of his time. In theafternoon at 3.45 p.m. he attended the post mortem examinationat Nuwara Eliya which commenced at 5 p.m. Thereafter, hecollected the clothes of the deceased.
It could be seen, therefore, that S. I. Chandradasa was workinground the clock from 8.2.1974 until he produced the accused-appellant before the Magistrate on 10.2.1974. Section 91(2) ofthe Administration of Justice Law states that:
“ No police office shall detain in custody a person arrestedwithout a warrant for a longer period than under all thecircumstances of the case is reasonable, and such period shallnot exceed 24 hours exclusive of the time necessary for thejourney from the place of arrest to the Magistrate.”
In view of the long distances between Maturata and NuwaraEliya, the scene of the incident and Rikillagaskada, I hold thatalthough S. I. Chandradasa exceeded the 24 hour limit it wasunavoidable in the circumstances and no substantial prejudicewas caused to the accused-appellant.
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The learned trial Judge had directed the jury that the prose-cution had to prove its case beyond reasonable doubt and thatthey had to consider the credibility of each witness. Chandra-dasa had been closely questioned about the delay in producingthe accused-appellant before the Magistrate and he had givenhis explanation. There was no special obligation on the learnedtrial Judge in the circumstance of the delay in this case to directthe jury that because section 91(2) of the Administration ofJustice Law was contravened the credibility of Chandradasawas in doubt purely on this fact in isolation from the rest of hisevidence.
A further submission by learned Counsel was that the trialJudge had misdirected the jury on the assessment of contradic-tions. Our attention was drawn to the following passage in thecharge:
“ If the contradiction is on a trivial point you may ignoreit altogether. But if the contradiction is on a material pointyou can reject the evidence on that material point of thatwitness and accept the other evidence if that is corroborated.Or, you may reject the entire evidence on the ground thatbecause the witness has been contradicted on a material pointhis entire evidence is unreliable.”
In Bhomanipur Banking Corporation, Ltd. v. Sreemati Dur-gesh Nandini Dasai (18) at 98, Lord Atkin, observed that thefact that a witness is unreliable as some of his evidence is foundto be untrue only means that a statement made by such awitness cannot be relied on unless supported by independentevidence. This principle has been adopted in decisions of theCourts of Sri Lanka. See G. A. Perera v. Ja-Ela Police (19)and Gardis Appu v. King (20) at 348, where it was held thatwhere false evidence has been introduced into the case forthe prosecution, it is open to the jury to say that the false-hoods are of such magnitude as to taint the whole case forthe prosecution, and that they feel it would be unsafeto convict at all. On the other hand, it is equally open to them,if they think fit to do so, to separate the falsehoods from thetruth and to found their verdict on the evidence which theyaccept to be the truth.
I hold that the passage referred to in the trial Judge’s chargeis in conformity with the principle's laid own in the abovecas,es and that there wals no misdirection on the law.
The final submission of learned Counsel was that the circums-tantial evidence in the case did not establish the charge ofmurder against the accused-appellant beyoqd reasonable doubt.
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The evidence at the trial established the following facts:
The accused-appellant was the last person seen with thedeceased on 7. 2. 1974. On his own admission he was present atthe scene when the deceased was attacked with a knife. Headmitted that the Rs. 100 note he had in his possession afterthe incident belonged to the deceased and was taken by thedeceased for the purchase of rice at the commencement of thejourney. According to the witness D. Sayaneris Silva there werebloodstains on the accused-appellant’s face; hands and clothes be-fore the accused-appellant helped to carry the deceased back tothe Weerapura colony. Ariyasena also observed bloodstains onthe accused-appellant’s shirt, face and hands before he helped tocarry the deceased. He also observed that the accused-appellant’sshirt (P3) was torn. At the trial the accused-appellant himselfsuggested that bloodstains may have got smeared on his bodywhile he was struggling with a Tamil person and he had no timeto wash off the blood in a jungle stream. Thereafter he ran tothe colony and raised cries. When the accused-appellant wentto the Nuwara Eliya Police Station at about 6 p m. it wasobserved that his shirt was bloodstained and torn. According tothe Government Analyst’s report his shirt P3 had thick stainsof human blood.
The explanation of the accused-appellant that his clothes mayhave got bloodstained when struggling with a Tamil personwas rejected by the jury as the accused-appellant in his state-ment D1 made to the Nuwara Eliya Police on 7.2.1974 statedthat the Tamil person held him by his shirt from behind. Therewas no reference to a struggle between the two. Similarly hisexplanation that he may have got bloodstains on his clothes andbody because he helped to carry the deceased back to the colonywas rejected by the jury because the bloodstains on his clothesand person were observed by Sayaneris Silva and Ariyasenabefore he had helped to carry the deceased.
According to the medical evidence the accused-appellant hadseveral abrasions on his body including nail marks on his neck.At the trial his explanation of the nail marks on his neck wasthat the Tamil person in the course of the struggle held him byhis collar and neck. However, in his statement D1 he mentionedthat the Tamil person held him by the shirt from behind. Thereference to his collar and neck at the trial was to fall in linewith the medical evidence. The jury rejected his explanation.
At the trial the accused-appellant admitted that he was awarethat the deceased had not only a Rs. 100 note but also two Rs. 10notes. The accused-appellant’s explanation that the deceased gave
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him Rs. 100 to purchase rice while he kept the two Rs. 10 notesfor expenses was highly artificial, especially as the accused-appellant was illiterate and the deceased had at the commence-ment of the journey kept the Rs. 100 note in the inside pocketof his coat according to Sayaneris Silva.
Peter Silva, father of the accused-appellant, at the trial,stated that the deceased gave the accused-appellant the Rs. 100note on the compound of Peter Silva’s house just before thejourney. The accused-appellant repeated this version. However,this version was contradicted by the accused-appellant’s state-ment D1 where he stated : “ I then proceeded about 2 miles alongwith him through a footpath which is a shortcut to Maturata.On our way he gave the Rs. 100 note to me and asked me to keepit.” The accused-appellant claimed that the Tamlis held thedeceased by his neck in the course of the struggle to kill him,but in the post mortem report there was no reference to any nailmarks on the deceased’s neck.
I hold that on this overwhelming evidence alone the jury werejustified in bringing their unanimous verdict of murder androbbery. However, I have already held that S. I. Chandradasa’sevidence relating to the discovery of certain productions wasadmissible. Chandradasa stated that the accused-appellantpointed out to him at the scene where the knife PI, two emptybags P6, two Rs. 10 notes P2 and a towel P7 were found.According to the Government Analyst’s report the knife PI washeavily stained with human blood. The towel P7 was identifiedby the deceased’s widow as the deceased’s towel. The accused-appellant admitted that the deceased took two empty manurebags in order to bring rice. With regard to the two Rs. 10 noteswitness Ratnayake M. Ran Banda identified one of the notesas the note he had given the deceased on the morning of theincident by a tear over which was pasted a stamp edge. It issignificant that the knife, two Rs. 10 notes, towel and bags werediscovered in widely scattered places which were known to theaccused-appellant. The two Rs. 10 notes were found hidden undera stone 1 miles away from the scene of the incident in thedirection of the Weerapura colony. It was most unlikely thatthe two Tamil persons would have come towards the colonyfrom the scene in order to hide these notes.
The prosecution suggestion was that the accused-appellant’smotive for killing the deceased was robbery. He had takenpossession of the Rs. 100 note and hidden the two Rs. 10 notesunder a stone so that he could collect them later. The juryaccepted this submission.
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Learned Counsel for the accused-appellant submitted that theaccused-appellant by his conduct revealed his innocence. Itwas he who first informed the people in the colony of the attackon the deceased and it was he who made the first complaint tothe police. He had also helped to carry the deceased back from thescene to the colony and accompanied him to hospital. The sub-mission of the prosecution was that he did so in order to glancesuspicion away from, himself. This submission was accepted bythe jury.
In McGreevy v. Director of Public Prosecutions (21) it washeld that in a trial in which the case for the prosecutiondepends wholly on circumstantial evidence no duty restson the judge, in addition to giving the usual direction thatthe prosecution must prove the case beyond reasonable doubt,to give a further direction in express terms that this means thatthey must not convict on circumstantial evidence unless theyare satisfied that the facts proved are (a) consistent with theguilt of the defendant and (b) exclude every possible explana-tion other than the guilt of the defendant.
,In King v. Guneratne (22), it was held that in case of cir-cumstantial evidence the facts given in evidence may, takencumulatively, be sufficient to rebut the presumption of inno-cence, although each fact, when taken separately, may be acircumstance only of suspicion.
For the reasons stated and the compelling circumstantialevidence I hold that the prosecution proved its case beyondreasonable doubt and that the verdict of the jury wasreasonable.
The appeal is dismissed. The convictions and sentences areaffirmed.
ATUKORALE, J.— I agree.TAMBIAH, J.—I agree.
Appeal dismissed.