025-NLR-NLR-V-01-REGINA-v.-CHARLES-DIAS.pdf
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REGINA v. CHARLES DIAS.Mdtara Criminal Sessions, No. 2.
Evidence—Dying declaration of person whose death teas not the subject ofinquiry at the trial—Its admissibility under s. 488 of the CriminalProcedure Code and under jthe common law.
A statement made by a dying man before an Inqairer into Deaths isnot receivable in evidence under section 466 of the Criminal ProcedureCode, not having been made on oath or affirmation, nor taken down bya Police Magistrate.
Per Bonbeb, C. J.—The declaration of a dying person whose death didnot form the subject of inquiry at the trial is not admissible withoutproof that the declarant was in actual danger of death and had given upall hope of recovery, and that the deaths of the declarant and theperson whose death was being investigated were all due to one and thesame transaction.
rpHE accused in this case was convicted of murder at a CriminalSessions of the Supreme Court held at Matara in May last,and a question of law was reserved by the presiding Commissionerof Assize and referred to the Supreme Court for decision undersection 424 of the Criminal Procedure Code.
Two murders, consequent upon a land dispute, had beencommitted almost simultaneously and in the same place atDikwella on the 17th of December, 1894: one by Dias, who killedAndris; the other by Gregoris, who killed Tilloris. A desultoryfighting was maintained, after the two murders had taken place,between the trespassing party and some of the party of the deceased
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persons, who were brothers. One Andrias, a brother of Dias,while fighting with a brother of the two mnrdered men, receiveda gun-shot wound and died. It appeared that some time beforehis death he made a dying declaration to the effect that he killedboth Dias and Gregoris.
In the case against Dias, the alleged dying declaration of Andriaswas attempted to be given in evidence. The Commissioner ofAssize disallowed the question put in that behalf to a witnessfor the defence, and the jury returned a verdict of guilty againstthe accused. The learned Commissioner thereupon referred thefollowing case for the decision of two or more Judges of theSupreme Court:—
Case Reserved.
I have the honour to refer to the Hon. the Supreme Court thefollowing questions which arose at the trial of the above-namedaccused on the 15th instant, for the murder of one Don AndrisKumaratunga by stabbing.
The case for the prosecution on the evidence was that accusedand twenty-five to fifty others committed criminal trespass on acocoanut garden in the possession or occupation of deceased Andrisand his brother Tilloris; that theso latter ran from 150 yturds off toprotect .their property, and a fight ensued between them and thetrespassers in a kurakkan enclosure; that Tilloris was beaten andfell, and, when rising, was stabbed by one Grigoris (who wasconvicted of such murder on the day previous to this trial) ; thatAndris, deceased, thereupon ran from the enclosure into anadjoining field, and was chased by vhe accused and two others ofthe trespassers, was beaten and fell on Mb face, and was thenstabbed in the back by the accused; and that immediately there-after as Andrias, another of the trespassers, was fighting withMendris (a brother of the two men already stabbed), he (Andrias)was killed by a gun-shot wound.
The defence called two witnesses, who deposed that afterplucking nuts in the enclosure by lawful right they were menacedand went to the field ; that there the deceased brothers Tillorisand Andris attacked Andrias, and that Andrias, in self-defence,drew his knife and, as Andris turned from it, he (Andrias) stabbedhim (Andris) in the back first of all, and then Btabbed Tilloris, whojumped into the enclosure, after which a shot was fired andAndrias fell wounded.
In addition to these witnesses the following witness wasexamined. To quote my notes:—
Francis de Silva Abeywardena sworn.
I am Mudaliy&r of Wellaboda pattu and Inquirer into Deaths. I knowKadjugaha Koratuwa. I went there on 17th December. I saw Andrias onthe road lying on a cot. He is a son of the Veda Araohchi. He was sufferingfrom gun-shot wounds, and appeared to be in great pain. He died aboutthree hours after I saw him. Before his death I spoke to him. He made astatement as to who injured him, and whom he injured.
Hr. Pereira proposes to ask this witness what statement the dying manmade.
I disallow it, since the statement was not made and recorded in aooordanoewith the provisions of section 466 of the Criminal Procedure Code.
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The accused was convicted and sentenced to death, execution ofsentence being respited for a month. In view of this necessaryrespite, and although I did not at the trial expressly reserve thequestion for the decision of the Supreme Court, I would desire tobe permitted to refer for their decision or review the question,whether or not the statement made to the Inquirer by Andriasshould have been admitted by me in evidence, so that the convic-tion, if thereby improperly obtained, may be quashed. I desirethis entirely by reason of the sentence and punishment whichfollows upon the conviction, and not because I myself doubt thatmy rejection of it was correct.
For, so far as I can see by the text books before me, “ the deceased ”—whose dying declarations are admissible upon the principleslaid down in R. v. Mead, SB.dk C. 605, and R. v. Hind, 29 L. J. M.G. 148 (called “ the party ” in R. v. Hutchinson, 2 B. dk C. 408), ascited in Roscoe, 11th edition, 32, and 3 Russell, 267/8—is the personwhose death is the subject of inquiry. I do not find in the textbooks any case anent the dying declaration of any person otherthan such “deceased subject of inquiry” being admitted inevidence, except in one instance. The case of R. v. Baker, 2 M. dkRob. 53, where an inquiry into the death of a man poisoned byeating a cake made by his maid, who had also eaten of it and waspoisoned ; her dying declaration was received, on the ground thatit was all one transaction. Roscoe (p. 32) cites this ruling, but atonce refers to B. v. Hind and R. v. Hutchinson in such a manneras to imply that this admission of the declaiation of one not the“ deceased subject of inquiry ” was contrary to that rule.
And can it be said here that the death of Andrias by a gun-shotwound from some other hand was “ one and the same transaction ”as the prior death of Andris ? In R. v. Baker the cause of deathwas the same, the poisoned cake ; but not so here. The decisionin R. v. Baker must have been passed before the Statute 30 and 31Vic., c. 35, § 6, was enacted, from which section 466 of ourCriminal Procedure Code is taken, and under the operation of it Iwould submit for consideration whether Andrias was not truly awitness within its purview. Had he not been injured and died,that would have been his position; and if at any time betweenAndris’s death and the trial he had sickened to the danger of hislife, his examination could only have been taken as section 466directs, after notice in writing (jR. v. Shurmer, 17 Q.B. D. 323)to the accused.
Will the fact that he met his death at the same time and place(only, for his death was not due to the same cause) as the deceasedsubject Andris, permit his dying declaration to be received ? Itmight be urged that the apprehension of death had not beenproved ere the witness was asked to narrate the statement, andmy rejection of the testimony might be supported thereon. But Iwould even presume the intended statement would include anassertion of that apprehension, and that it was yet open to me toinquire into the state of illness, Ac. (3 Russ. 266).
I would therefore humbly submit for the consideration of theHon. the Supreme Court, whether, if it had been proved thatAndrias was under due apprehension of death, his dying declara-tion should have been admitted in evidence by me, and ask that,if necessary, order may be made under section 425 of the CriminalProcedure Code.
Dodwbll F. Bbownh,Commissioner of Assise.
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Walter Pereira appeared for the prisoner. The Commissionerof Assize disallowed the evidence simply because the statementof the deceased was not made and recorded in accordance withthe provisions of section 466 of the Criminal Procedure Code.That section merely gives power to Police Magistrates to takeevidence beforehand of persons lying dangerously ill, with a viewto perpetuate their testimony to be used at the trial, but thesection was not intended to abrogate or modify the general lawof evidence as to the admissibility of dying declarations. Thegeneral rule as to dying declarations is, no doubt, that suchdeclarations, though made with a full consciousness of approach-ing death, are only admissible in evidence where the death of thedeceased is the subject of the charge, and the circumstances ofthe death are the subject of the declarations; but I rely on theruling of the Court in R. v. Baker, 2 M. A Rob. 53, wherethe dying declarations of a person other than the deceasedfor whose murder the prisoner was being tried was admitted inevidence on the ground that the declarant himself met with hisdeath and the declaration was made in the course, so to say, ofthe “same transaction” as that in which the deceased whosedeath was being inquired into was killed. In the present case,Andrias met with his death in the same general fight as that inwhich Tilloris and AndriB were stabbed, and it is as to whostabbed these two that the declaration in question is said to havebeen made.
Rdmandthan, S.-O., submitted R. v. Baker was a solitarydecision, which did not appear to rest on sound principle, andwhich was thought by the Judge who pronounced the ruling to bedeserving of the consideration and adjudication of a highertribunal. Even if that decision were accepted, the dying declara-tion of Andrias was inadmissible, as it was not shown that it wasmade under a settled hopeless expectation of death {Queen v.Jenkins, 1 L. R. C. G. 187). Nor did section 466 of the CriminalProcedure Code apply, as the statement was made before theInquirer into Deaths, and not before the Police Magistrate-Under any circumstance, the case reserved by the Commissionerwas an hypothetical case, and did not really “ arise in the courseof* the trial ” as provided in section 424 of the Criminal ProcedureCode. The questions submitted were improperly before theSupreme Court, for want of evidence that Andrias was under asettled hopeless expectation of death.
Pereira, in reply.
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28th May, 1895. Bonser, C.J.—
The question which has been reserved for the consideration ofthis Court by the learned Commissioner of Assize is this—“ Whether, if it had been proved that Andrias was under due“ apprehension of death, his dying declaration should have been‘‘admitted in evidence.” The Solicitor-General called attention tothe fact that this is an hypothetical question, and that thereforeit was not a question which arose in the course of the trial, and isnot such a question as this Court can be called upon to answer. Iagree with him that this is so ; but at the Rime time, consideringthat the matter is one of life or death to the accused, I think itright that we should express an opinion on the case.
What occurred at the trial was this. The counsel for the defencecalled an Inquirer into Deaths, to whom a statement had beenmade by a dying man named Andrias. This man appears to havereceived the gun-shot wound which caused his death at or nearthe same time and place at which the deceased man, for whosemurder the accused was being tried, was stabbed to death. TheInquirer deposed as follows : “ Before his death I spoke to him.“ He made a statement as to who injured him and whom he“injured.” The counsel for the defence then proposed to askwhat this statement was, but the learned Commissioner refusedto admit the statement on the ground that it was not made andrecorded in accordance with the provisions of section 466 of theCriminal Procedure Code, that is to say, it was not made on oath oraffirmation and taken down by a Police Magistrate. It seems tome that, at that stage of the case and in that state of the evidence,the learned Commissioner was quite right in refusing to admitthe statement. It clearly could not have been admitted undersection 466 of the Criminal Procedure Code.
Then, could it have been admitted as being a dying declaration ?It appears to me that it could not. In Mr. Justice Stephen’sDigest of the Law of Evidence the rule is thus stated—and, in myopinion, correctly stated : that such a declaration is admissible“ only in trials for the murder or manslaughter of the declarant,“ and only when the declarant is shown, to the satisfaction of the“Judge, to have been in actual danger of death, and to have given“ up all hope of recovery at the time when his declaration was“made.” Now, in the present case, the person who made thedeclaration was not the person whose death formed the subjectof inquiry at the trial. Moreover, it was not shown that thedeclarant was in actual danger of death, and had given up allhope of recovery. It may be that he was in actual danger ofdeath—for he died about three hours afterwards. But there is
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absolutely no evidence as to his own opinion of his condition, orwheiher he did or did not entertain any hope of recovery. Itwas incumbent on the party wishing to get the declarationadmitted in evidence, to prove to the satisfaction of the Judgethat the declarant had given up all hope of recovery at the timethe declaration was made. This was not proved nor attemptedto be proved, so that, as I observed before, on the state of factsproved before the learned Commissioner, there was no groundupon which he could have admitted this declaration.
Assuming, however, for the moment that the proper foundationhad been laid for the question by its having been proved that theman Andrias was not only in actual danger of death, but also hadgiven up all hope of recovery, still I am of opinion that hisstatement, was inadmissible.
Mr. Pereira, who said all that could be urged in favour of theadmissibility of the statement, sought to bring it within theprinciple of the case of Jti> v. ^ialccr^ 2 H. ft 53. That w&ba case where two persons were poisoned by eating the same cakeat the same time, and died almost immediately afterwards. Theaccused was tried for the murder of one of them. A dyingdeclaration by the other person, that she had made the cake inthe presence of the accused, and had put nothing bad in it, waBadmitted as evidence for the prosecution on the ground that “ itwas all one transaction.” The point, however, was reserved, but,as the prisoner was acquitted, it could not be further discussed.That case was an exceptional one, and is characterized by Mr.Justice Stephen, in the book to which I have just referred, as acurious one. For my own part, I should not be disposed to followit, except where the facts were the same, or practically identical.The present case is, however, widely different from that case. Ifthe declarant, and the person whose death was being investigated,had both died of wounds caused by the same shot, then perhapsthe statement might have been admissible. But nothing of thatkind occurred here. The only ground suggested is that the declarantreceived his death-wound at and about the same time and place as. the deceased whose death was being investigated. There is not,in my opinion, sufficient connection between the declaration andthe last-mentioned death to make them “ all one transaction ” andbring them within the case of R. v. Baker. The answer, there-fore, to the question proposed will be in the negative.
I have dealt with this matter at such length for the sole reasonthat a question of life and death is involved. But I feel thisdifficulty—that had our answer been in the affirmative, we couldnot have given any practical effect to our opinion.
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Lawrir, J.—
I agree. Sufficient foundation had not been laid for thequestion, “ What statement did Andrias make ? ’’ But if I allowmyself to assume that Andrias was under due apprehension ofdeath ; that he had lost all hope of life; that he was still in a fitstate of mind to be able to speak clearly and truthfully ; and thathe died soon after ;—even if I assume these facts, evidence of astatement by Andrias made to the Inquirer into Deaths washearsay, and therefore inadmissible, because the death of Andriaswas not the subject of the charge before the jury. If the state-ment he made waB as to the circumstances of his own death, itwas irrelevant in that trial. If it was as to the circumstances ofthe death of a person other than himself, it was inadmissible.