P. P. PETERSINGHAM, Appellant, and THE QUEEN, Respondent

103-NLR-NLR-V-73-P.-P.-PETERSINGHAM-Appellant-and-THE-QUEEN-Respondent.pdf


Peteraingham v. The Queen .'
-B37
[Court of Criminal Appeal]
I
1970 Present: Alles, J. (President), Siva Supramaniam, J.
and Samerawickrame, J.
P.P. PETERSIXGHAM, Appellant, and THE QUEEN, RespondentC. C. A. Appeal No. 101 of 1969, wrrn Application 1405. C. 12411969—M. C. Kalmunai, 33832
Evidence Ordinance {Cap. 14)—Sections 25, 26, 27 (/)—Scope of a. 27 {/)—“ Personaccused oj any offence "—Criminal Procedure Code (Cap. 20)—Section 122 (1)—Statement made by a person thereunder—Admissibility in evidence althoughsignature was taken.
Tho accused-appollant was charged with ruardor. Tho case against himdependod entirely on circumstantial evidonco. An important item of theevidence was tho discovery of cortain articles by a polico officer in consequenceof a statement (P 43) made by. tho appoliant and recorded by the polico officerwhen the appellant was undor suspicion and in tho custody of tho polico officer.It was only thereafter that tho appellant was brought to his houso, tho chargewas explained to him and he was arrested.
It was contended that the statement P 43 was not admissible in ovidoncobecause it did not conform to tho provisions of soction 27 (1) of tho EvidoncoOrdinance since the appellant was not “ accused of an offonco ” at the timeho made tho statement which led to tho discovery of the articles.
Held, that, even assuming that evidonco under section 27 of tho EvidenceOrdinance could be led only if the appellant was a porson accused of anyoifonco at tho timo he gave tho information, tho statement P 43 made by theappellant was rclovant and admissiblo for the reason that, before ho mado it,ho was well aware that a cliargo of murder was being investigated against himand that he was being accused of tho offonco.
Held further, that the fact that tho statement J’ 43 was signed by tho appoliantin contrnvontion of section 122 (1) of tho Criminal Procedure Code could notmake tho statement inadmissible.
Ar:
PEAL against a conviction at a trial before the Supreme Court.
Colvin R. de Silva, with M. L. de Silva, 1. S. de Silva, W. de Silvaand assigned Counsel G. O. Fonseka, for the accused-appellant.
V. S. .4. Pullenayegum, Senior Crown Counsel, with LakshmanGurusivamy, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
638
ALLBS,'J.—Pcieriringham v. The Queen
February 2, 1970. Ajlles, J.—
The appellant, a police constable attached to the Kalmunai Police,was convicted by an unanimous verdict of the jury of the murder ofa fellow constable of the same Police Station called Aiyalhurai.Aiyathurai was alleged to have been done to death on the Wcsak night ofI2th May, 1968 in Kalmunai town. After the fatal assault his body wasenclosed in two gunny sacks tied with rope, the mouth of which had beensewn up and the trussed up body inside the gunny sacks was found thefollowing morning by the side of Mahadevan Road, a distance of 994 feetfrom the house of the appellant.
The case against the appellant depended entirely on circumstantialevidence. It was the submission of Counsel for the appellant that thedirections of the learned trial Judge on circumstantial evidence wereinadequate ; that his client had been gravely prejudiced by the admissionof inadmissible evidence under the provisions of Section 27 of the EvidenceAct and finally that even on an acceptance of the entirety of the itemsof circumstantial evidence relied upon by the Crown, the case againstthe appellant had not been proved beyond reasonable doubt.
The learned trial Judge very exhaustively dealt with each item ofcircumstantial evidence and pointedly drew the attention of the juryto the criticisms of the defence in regard to each single item. On theverdict of the jury, however, we must assume that such items of circum-stantial evidence which the learned trial Judge placed before the Jury fortheir consideration were accepted by them in spite of any criticisms bythe defence. Briefly the case' for the Crown as established on the evidencewas to the following effect:—
About 2.20 p.m. on 12th May 1968, the appellant and the deceasedcame to the house of Excise Inspector Samarasuriya on a bicycle whichthe deceased had borrowed from one Thangathurai. After consuminga fair quantity of arrack at Samarasuriya’s house the appellant and thedeceased entered upon a heated argument in the course of which theappellant deflated the tyres of the bicycle. Samarasuriya thereafter,fearing further trouble, took the appellant and the deceased in his carto the Police Station transporting the bicycle in the dicky of the car.The deceased alighted some distance from the station and the appellantgot down at the police station about 3.45 p.m. Police Constable JustinPerera was at the Station at the time and testified to the fact that theappellant alighted from Samarasuriya’s car, came to the charge roomand pulling out a knife from his pocket abused Aiyathurai and statedthat before dawn he will be murdered. The appellant appeared to be theworse for. liquor. About 6 p.m. the appellant had met Thangathuraiand told him that the deceased was a low caste man and advisedThangathurai not to associate with him and warned him that if he gavehis bicycle to the deceased hereafter he would damage it. About 7 or7.15 p.m. the appellant and the deceased again met outside Krishnapulie'stea boutique and according to Krishnapulle they were exchanging wordsin the " normal angry w>ay They were seen again together outside
.ALLES, J.—Peitrsingbam v. The Queen
339
the gate of the appellant's house about 8 or 8.30 p.m. by Vadivelu andthe deceased hailed him as “ Thamby, Thamby ”, There is no evidencehowever of any trouble between them at that time but on the evidenceof Samarasuriya, Justin Perera and Krishnapulle it would appearthat there were strained feelings between the parties until late in theevening.
According to the autopsy the deceased must have met with his deathbetween 8 p.m. and 12 midnight on 12th May. The deceased sentsome food to his wife Karunawathie through the witness Thangathuraiabout 7.30 p.m. with a message that he would come later but he nevercame home that night. It would however appear from the stomachcontents of the deceased that he had partaken of a meal somewhere andprobably also consumed more liquor because the Doctor noticed a strongsmell of alcohol in the stomach contents. The appellant came to thePolice Station about 10.30 p.m. to examine the duty roster. It wassuggested by the Crown that he did so after the murder in order toverify the movements of the night patrol, to enable him to dispose of thebody without detection, but there is nothing in the evidence to suggestthat this was the case. The evidence however establishes that the appel-lant and the deceased were out of their respective houses at the relevanttime. After the deceased was seen outside the house of the appellantat 8 or 8.30 p.m. there was a complete absence of evidence about hismovements on the fateful night until his body was discovered thefollowing morning by the side of Mahadevan road.
Karunawathie on hearing of the finding of the body on the morningof the 13th and having learnt from witness Gopalaratnam that herhusband had been seen in the company of the appellant the previousevening met the appellant and addresssed him in the following terms —
“ I have heard that my husband was seen going along on the previousevening with you. Where is he ? To this query the appellant gavethe following cryptic reply—“ He did not come along with me, nor didI sec him ”, It was the submission of the Crown that this was a falsestatement which suggested that he did not see the deceased on the 12thwhile the defence contended that what the appellant sought to convcyto the widow was that the deceased did not come along with him in theevening. One would have expected the appellant, on learning of thefinding of the body, to at least inform the widow that the deceased wasconstantly in his company the previous evening. The appellant Invitedthe widow to come into the house and when she wanted to go to the PoliceStation tried to put her off by saying “ What’s the huny ?
Apart from this curious conduct of the appellant, the Crown alsorelied on two other items of circumstantial evidence—the presence offive tiny specks of human blood on the wall of the appellant’s house andthe presence of several minor abrasions on the back of the appellant’shands, suggesting that his hands had come into contact with some roughsurface on the ground when he was attempting to drag a weight.
540
AELES, J.—Peleraingham v. The Queen
However the learned trial Judge characterised as the “ most important ’*item of circumstantial evidence the discovery of an improvised carrierand some rope in an abandoned garden not far from the jjlace where thebody was discovered. These articles were discovered by the Police,in consequence of the statement of the appellant marked P 43 whichreads as follows :—
“ I then removed the improvised wooden carrier and the coir ropes
and threw it into an empty garden on my left hand side
Learned Counsel for the appellant strongly urged that this item ofevidence was inadmissible and gravely prejudiced his client andsubmitted that the finding of these articles was not relevant for thepurposes of the case.
The appellant was under suspicion from the morning of the 13th 3fay ;a statement had been recorded from him on the 15th ; he was underconstant Police surveillance from the 13th onwards; his house wassearched on the morning of the lot-h and a Police guard placed there onduty. On the morning of the 16th Inspector Sencviratne was detailedby the A.S.P. to take over the inquiry and he summoned the appellantand his wife to the Traffic Office, Kalmunai, and commenced to recordhis wife’s statement which took the greater part of the day and thencommenced to record the appellant’s statement; the specks of humanblood in t he house were discovered on the evening of the 16th and accord-ing to the Inspector the appellant was taken into custody at 5 p.m. onthe 16th but he was not informed of the charge. Tire appellant’s state-ment to Inspector Seneviratne was recorded from 6.15 p.m. onwards,in the course of which the appellant was informed of the matter whichwas being investigated. In the course of his statement he stated whatwas contained in P 43 and that night about 12.20 a.m. the appellanttook Seneviratne along a sandy lane, turned left at Mahadevan Roadand came to the garden of Ahamadu Lebbe from where he picked upthe improvised wooden carrier (P. 10), and seven pieces of coir rope(P. 13, P. 14, P. 15 a to e). The pieces of rope were in close proximityto the carrier. It was thereafter that the appellant was brought tohis house, the charge was explained to him and he was arrested. Thiswas 3.45 a.m. on the 17th Hay.
The appellant owned a bicycle—P. 20— which had been given to himfor his Police duties and according to the Inspector the carrier P. 10,which consisted of four pieces of stick tied at the ends with rope in the'form of a square could be attached to the stand of the appellant’s bicycleand the gunny sacks containing the body could be rested on it. Thecarrier and the ropes were found about 60 to 70 yards from the placewhere the body w'as discovered and about a J mile from the house of theappellant.- On the morning of the 13th about 8 or 8.30 a.m. the appellantcame riding his bicycle to the Chelvanayagam Service Station and gothis bicycle washed down by the- serviceman Rahatunga and scrubbedit himself. ' On being asked by Ranatunga whether it. was inspection
ALLES, J.—Peteraingham v. The Queen
541
day the appellant answered in the affirmative. It is in evidence thatin fact the inspection day was fixed for the 16th May. Of the piecesof rope found in the garden one piece P. 13 was similar in thicknessand in the nature of the fibres and twist to the pieces of rope P. 11 a toP. 11 d with which the body was tied, but the Analyst was unable toexpress an opinion whether it formed parts of the same rope owing tothe frayed conditions of the ends. A similar opinion was expressed bythe Analyst in regard to a piece of rope P. 12 found in the well of theappellant’s garden.
It was strongly urged by Counsel that in the absence of evidence thatthe appellant used his bicycle on the night of the 12th-13th May or atleast- that the body was transported on a bicycle, the finding of thecarrier and the ropes was irrelevant. I am however inclined to acceptthe submission of the Crown that in tho background of the rest of thecircumstantial evidence—the relations between the appellant and thedeceased on the night of the 12th, the threat uttered by’ the appellant, thofinding of injuries on the back of his hands and the discovery of humanblood in his house this evidence is not entirely irrelevant. The conditionin which the body was found inside the gunny bags suggests that thofatal assault occurred elsew here and that the body' was transported to thoplace where it was subsequently found ; it is very likely that the assailanttransported it on a vehicle to avoid detection ; the appellant owned themeans of transport on which the gunny bag containing the body coidd bet ransported with the aid of an improvised carrier, if it was firmly securedto the carrier with ropes and the appellant-, on what appeared to be afalse pretext, got his bicycle washed and scrubbed the following morning.In Queen v. Ba masamy 1 evidence of the finding of a gun and cartridges onthe statement of the accused was held to be relevant although the gundiscovered w as not proved to have caused the injuries on the victim. Thesuggestion of the Crown was that the gun and the cartridges could havebeen used to commit the offence. On a parity of reasoning, on a lesserkey, tho carrier P10 could have been used to transport tho body.
Counsel for the appellant did not contend that the directions of thelearned trial Judge on the weight to be attached to the statement ofthe appellant in P43 were in any manner open to criticism, but it wassubmitted that the statement- was not admissible, because it did notconform to tho provisions of Section 27 of the Evidence Act since theappellant was not “ accused of an offence ” at the time he made hisstatement which led to the discovery' of the carrier aud tho ropes.
Section 27 (1) of the Evidence Ordinance reads as follows :—
** Provided that, when any fact is deposed to as discovered inconsequence of information received from a person accused of anyoffence, in the custody of a police officer, so much of such information,whether it amounts to a confession or not, as relates distinctly tothe fact thereby discovered may bo i>rovcd.”.
* {l‘JG4) 6G A*. L. -C-.
&12ALLES, J-—Pctcrsingham v. The Queen
Two views are possible in regard to the interpretation that should bogiven to the words “ person accused of any offence ” in the Section. Theymay be read as referring to and describing the person against whom astatement may be proved. Alternatively, they may be read as indicatingthat information may be proved against the person only if he was, at thetime the information was received from him, a person accused of anyoffence in addition to being a person in the custody of a police officer.”
In Deonandan Dusadh v. Emperor 1 the accused who had wounded hiswife went to the Police station immediately and stated to a Police officerthat he went to a certain room where his wife was sitting and wounded,her. In consequence of this information the Inspector arrested him andwent immediately to the house and discovered the dead body of the wife.The Patna High Court held that, although the accused was in the custodyof the Police, he was not accused of an offence and therefore his statementwas not admissible. This view has been followed by the High Court ofAndhra in In re Malladi Bamaiah 2 and reference is also made in the latterdecision to certain decisions of the Lahore High Court which take thesame view.
A Special Bench of the Patna High Court consisting of three Judges inSantokhi Beldar v. Emperor 3 overruled the decision in Deonandan Dusadhv. Emperor (supra) and held that in similar circumstances when a personstates he has done certain acts which amount to an offence he accuseshimself of committing the offence, and if he makes the statement to aPolice officer, as such, he submits himself to the custody of a Policeofficer and any statement made in such circumstances which lead to thediscovery of any fact would be admissible under Section 27. This viewhad been adopted earlier by the Calcutta High Court in Legal Bementrbrancer v. Lalit Mohan Singh * and had been followed subsequently by theHigh .Court of Bombay in State v. Metnon s. In the latter ease afterreviewing the authorities the Court held that the w ords “ informationreceived from a person accused of an offence ” in Section 27 cannot.be .'read to mean that he must be an accused when he gives the informationbut would include a person if he became subsequently an accused personat the time when that statement is sought to be received in evidenceagainst him. Finally there is the decision of the Supreme Court of Indiain State of Uttar Pradesh v. Deoman ®, which has relied upon by CrownCounsel and which contains the observation of Shah J. who delivered themain judgment—
“ that the expression ‘ accused person * in section 24 and theexpression ‘ a person accused of an offence ’ in section 25 have the sameconnotation, and describe the person against w’hom evidence is sought tobe led in a criminal proceeding. The expression ‘accused of anyoffence ’ in section 27 as in section 25, is also descriptive of the person
*» {1928) A. I. R. Patna 491.« {1922) A. T. R. Cal. 342.
'* (1956) A. I. R. Andhra 56.* (1959) A. I. R. Bombay 534.
*(1933) 34 Cr. L. J. 349.* (1961) 61 Cr.L. J. 1504.
AIi.ES, J.—PelCTtivgham v. The Queen-
543
against whom evidence relating to information alleged to be given byhim is made provable under section 27 of the Evidence Act. It doesnot predicate a formal accusation against him at the time of making thestatement sought to be proved, as a condition of its applicability."
I agree with Counsel for the appellant that this observation of the learnedJudge is obiter because the main question for determination in the casewas whether there was such a discrimination between persons in custodyand persons not in custody which offended Article 14 of the IndianConstitution, but this observation coming as it does from very highauthority is entitled to the most weighty consideration.
In his judgment in the same case Hidayatullah J. at p. 1525 adopted adifferent approach. He said—
“ It would appear from this that S. 27 of the Indian EvidenceAct has been taken bodily from the English law. In both the lawsthere is greater solicitude for a person who makes a statement at astage when the danger in which he stands has not been brought hometo him than for one who knows of the danger. In English law, thecaution gives him the necessary warning, and in India the fact ofhis being in custody takes the place of caution which is not to begiven. There is, thus, a clear distinction made between a personnot accused of an offence not in the custody of a police officer andone who is.”
There are thus conflicting decisions in the Courts of India as to themeaning that should be given to these words in S. 27.
The words “ person accused of any offence ” appear in Section 25and as section 27 is a proviso to section 25 as well as section 26,according to the trend of judicial decisions, there is no reason why theinterpretation of the words in section 27 should be any different fromthe construction that could be reasonably placed on the words in section25. In section 25 there is an absolute ban on information made to apolice officer at any stage and therefore it is reasonable to argue thatthe words “ person accused of any offence ” in section 27 docs notnecessarily mean a person against whom a formal accusation for anoffence is made. On the other hand, this section is identical withsection 27 of the Indian Evidence Act and it appears that prior to theenactment of the Indian Evidence Act provision was made in respectof the same matter by an amendment to section 150 of the CriminalProcedure Code of 1861 by Act No. 7 of i860 and the section asamended read:—
“ Provided that when any fact is deposed to in evidence as discoveredin consequence of information received from a person accused of anyoffence, or in the custody of a police officer, so much of such infor-mation, whether it amounts to a confession or admission of guilt. or not, as relates distinctly to the fact thereby discovered may bereceived in evidence .”
544
AiiLES,,J—Petcreingham v. The Queen .
In that provision the words “ person accused of any offence ” must means person accused of any offence at the time the information was receivedfrom him. If they are read to refer to or describe a person against whomevidence is sought to be led the alternative condition in the provisionwould be rendered meaningless and nugatory.
We do not think it necessary to decide in this ease which interpretationof these words in section 27 is correct. For, even assuming that evidencemay be led only if the appellant was a person accused of any offenceat the time he gave the information, we are unable to take the view thatthe statement made by him should have been excluded. .411 the circum-stances in this case point to the fact that a charge had been made againstthe appellant before he made his statement, part of which has beenproved in evidence. It is true that sub-inspector Sencviratne purportsto speak to “ arrest ” and “ taking into custody ” but the statementsmade by this youthful and over-enthusiastic police officer, who washandling his first investigation in a murder case, in regard to matterswhich involve mixed questions of fact and law, are not in our viewentitled to much weight. Even if there is absence of proof that theappellant was in the position of a person accused of an offence at thetime he made the statement, we are unable to take the view that it isanything other than a matter that is purely technical. The appellantwas a police officer and was aware of the procedure that is adopted inthe course of an investigation. He was aware that the investigationrelated to the murder of Aiyathurai and that in that investigation hishouse had been searched and his statement recorded. He was thereforewell aware that a charge of murder was being investigated against himand that he was being accused of the offence.
Counsel further submitted that the statement was inadmissible becauseit was signed by the appellant in contravention of section 122 (1) of theCriminal Procedure Code. I do not think such an irregularity in procedurecan make the statement inadmissible. As Crown Counsel remarked iffor instance an oath had been administered—a matter which was alsoprohibited under the section—it would not have made the statementinadmissible. Similarly if the appellant,' who in this case must bepresumed to be quite familiar with a police investigation under ChapterXII, chose to adopt his statement by affixing his signature to it, it canhardly be said to affect its admissibility. In The King v. Landy1 thisCourt held that such an irregularity did not prejudice the maker anddid not occasion a failure of justice.
We are therefore of the view that the statement P 43 was properlyadmitted into the case and that the contents thereof were relevant. * Thelearned trial Judge correctly directed the Jury that this statementonly established that the appellant had knowledge of the fact thatthe improvised carrier and the ropes were in the abandoned garden ofAhamadu Lebbe.;
1 (1941) 42 jy. L. n. 317.
ALLES, J.—Peteraingham v. The Queen
545
I shall now deal with the submission of Counsel for the appellant thatthe directions of tho learned trial Judgo on Circumstantial Evidence wereinadequate. It was his complaint that the trial Judge did not pointedlydraw the attention of the jury that each single item of CircumstantialEvidence on which the Crown relied had to be proved beyond reasonabledoubt, although the jury were in fact directed that they should considerthe cumulative effect of the proved facts in deciding whether the Crownhad established its case. While it may have been better if the attentionof the jury had been drawn to this matter when the Judge was dealingwith Circumstantial Evidence, we do not think that in the instant casehis omission to do so has occasioned a failure of justice. Before lie gavehis directions on Circumstantial. Evidence- he directed tho jury on theburden of proof and tokl them “ that if they were left with any reasonabledoubt in regard to any matter which the prosecution must prove itbecomes your duty in law, it is indeed the right of the accused to demandat your hands that 3 0u give him the benefit of the doubt. ” Again afterdealing with each single item of Circumstantial Evidence at theconclusion of his charge he repeated that the jury “must be satisfiedbeyond reasonable doubt in regard to each matter which the prosecutionmust prove. ” Tho case for the prosecution being entirely dependent onCircumstantial Evidence, these directions can only mean that each itemof Circumstantial Evidence must be proved beyond reasonable doubt.
Finallj- there was the submission of Counsel, that even acceptingtho entirety of the prosecution case, the circumstantial evidence onlj?amounted to a case of grave suspicion. We are unable to agree. In ourview the cumulative effect of the proved facts, in the absence of anexplanation was quitesuSicient to rebut the presumption of innocence andestablish that the appellant was at least one of the assailants. It isunnecessary to detail, these facts which have beeD set out fully in theearlier part of this judgment-.
It remains for us to only consider whether the verdict of murder shouldbe permitted to stand. Tho learned trial Judge adequately directed thejur}- on the possible verdicts in the case but the jur3*, as they were entitledto do, came to the conclusion that a murderous intention had beenestablished.
The learned trial Judge invited the jury to draw an inference as towhether or not the appellant had a murderous intention from theinjuries that wore found on the deceased. There was a Iso evidence that on theprevious evening the appellant had uttered a threat that he would murdertho deceased before the following morning. This threat had been utteredwhen the appellant was under the influence of liquor and was staggeringdrunk. The evidence of police constable Perera who deposed to the factthat the threat was uttered b' the appellant, had been attacked by thedefence and the learned trial Judge dealt at length with the considerationsput forward I33’ the defence why that evidence should not be accepted.Tho ovidcnce of the threat, even if it was accepted by the jury, had stillto bo assessed and evaluated and the jury had to consider whether, having
540
XVijcratne v. Wijcratnt
regard to t-ho circumstances in .which the t hreat was made, it was a realthreat to kill or whether it did no more than reveal animosity towards thedeceased. There was evidence that later in the evening the appellant andthe deceased were seen together talking to each other in what may havebeen an angry way but no evidence of any violence or even attemptedviolence directed by the appellant against the deceased has been led. Itwas therefore necessary in our view for the learned Judge to have given adirection to the jury as to how this evidence and the threat uttered by thoappellant should be considered with reference to the question of inten-tion. In the absence of such a direction, we do not think it safe to allowthe conviction for murder to stand. In any view of the matter however,the appellant was guilty of the offence of culpable homicide hot amountingto murder. We therefore substitute a verdict of culpable homicide notamounting to murder for the verdict of murder and sentenco the appellantto ten years rigorous imprisonment. Subject to these variations theappeal is dismissed and the application refused.
Verdict altered.