DIAS J.—Perera v. Jirasinghe.
1946Present: Dias J.
PERERA, Appellant, and JIRASINGHE (S. I. Police).
038—M. C. Gampaha, 31,685.
Evidence—Statements of a deceased person not relating to the cause of his deathor to any of the circumstances of the transaction which resulted in hisdeath—Admissibility—Evidence Ordinance, s. 32 (I).
Statements made by a person who is dead are inadmissible in evidencetinder section 32 (1) of the Evidence Ordinance when they do not referto the cause of his death or when they do not relate to any of thecircumstances of the transaction which resulted in his death.
PPEAL against a conviction from the Magistrate’s Court, Gampaha.
H. W. Jayewardene, for the accused, appellant.
J. G. T. Weeraratne, C.C., for the Attorney-General.
October 28, 1946. Dias J.—
Although this is a comparatively trivial case, the question of law raisedby Mr. Jayewardene, counsel for the accused-appellant, is one ofimportance and substance.
The accused was charged with causing simple hurt (section 314) to abatgama duraya man called H. P. Jundiya. It appears that on March9, 1946, the accused was in a boutique when this so-called low-casteman had the effrontery to light a cigarette in the presence of the highcaste accused, who, thereupon, went up to Jundiya and struck himonce on the face and kicked him on his back saying : —“ You padduwasmust behave like padduwas. Go away.”
Jundiya meekly left the spot. He went home but made no complaint.He thereafter developed pain in his body. There is no evidence to showthat these "pains were the result of the act of the accused. He becameworse. He was taken to the General Hospital, Colombo, where he died.
DIAS J.—Perera v. Jirasinghe.
The prosecution has led no evidence whatever to show that his deathwas in any manner connected with or was caused by the blows struck bythe accused. For aught we know, Jundiya may have died of heartdisease or some other ailment.
The evidence against the accused consists of the direct evidence of thewitness H. P. Siriya, who was a companion of the complainant, and whowitnessed the incident. If his evidence is believed, there is sufficienttestimony to justify the Magistrate in finding the accused guilty undersection 314.
The prosecution, however, went further and elicited from the witnesses,Francis, and the mother of the deceased, Marthina, the statements madeby the deceased man that he was kicked and assaulted by this accused.
At the time the evidence was admitted the complainant was dead.The points taken for the appellant are that these statements were in-admissible in evidence under section 32 (1) of the Evidence Ordinancebecause: (a) they do not refer to the cause of the deceased man’s death.The deceased man merely stated that the accused man had kicked andbeaten him. There is no evidence that that beating, in any way, was thecause of his death; and (b) that they do not relate to any of the cir-cumstances of the transaction which resulted in his death. There is noevidence in this case to show that the transaction which resulted in theassault was part and parcel of the transaction or a part of thetransaction which resulted in the man’s death in the General Hospital.
The prosecution might have bridged that gap by leading evidencebut they have failed to do so. The statements of Jundiya are, therefore,inadmissible. The learned Crown Counsel has not attempted to justifythe admission of this evidence.
That the Magistrate was influenced by the admission of this inadmissibleevidence is reflected in his judgment. For he refers to the “surfeit ofevidence ” against the accused. As a matter of fact, there was only oneadmissible witness against him. He has also been prejudiced, uncons-ciously no doubt, against the accused, because he comments adverselyon the failure of the accused to enter the witness-box against this volumeof evidence, and he has imposed the somewhat severe sentence of sixmonths for what is after all a simple offence triable by a Rural Court.
I have been perplexed as to what order I should make. The case, asI have pointed out, is a trivial one. On the other hand, if the facts aretrue, it is very high-handed conduct on the part of this so-called high-caste man to treat his low-caste brother in this manner in modem Ceylonin this year of grace 1946. I do not think it is necessary to send thecase back for a new trial before another Magistrate.
This is a case in which I may act under the provisions of section 167of the Evidence Ordinance. I banish from my mind the inadmissibleevidence. Siriya’s evidence, which has been accepted, proves the chargeagainst the accused.
I therefore affirm the finding but I think the sentence of six months’imprisonment is far too severe.
I set aside the conviction and, acting under section 325 (1) of theCriminal Procedure Code, I order that the Magistrate should dischargethe accused after due admonition in open Court as to the proper conduct
NAG ALIN G AM AJ.—TMrugnanam v. Weerasinghe, Tea Control Inspector. 19 ■
which a high-caste man, by reason of that status, is expected to exhibittowards his so-called low-caste brother. A batgama duraya is as muchentitled to smoke in public and to act in precisely the same way as aso-called high-caste man can do. The Magistrate will also indicate tothe accused that he is fortunate in not having to serve a sentence of im-prisonment in this case—a result which would inevitably have resulted,were it not for the slip made by the prosecution in eliciting inadmissibleevidence.
Accused warned and discharged.
PERERA, Appellant, and JIRASINGHE(S. I. Police) Respondent