REGINA v. M. P. PERERA alias K. P. MEDAWATTE

011-NLR-NLR-V-57-REGINA-v.-M.-P.-PERERA-alias-K.-P.-MEDAWATTE.pdf

[lx TiiE Court of C’ri.wikal Appeal]
1955 Present: Basnayake, A.C.J. (President), Gunasekara, J.,and K. £>. de Silva, J.'REGINA v. Af. P. PERERA alias K. P. MEDA WATTEAppeal No. 37 or 1955, with Application No. 65 of 1955
S. G. IS—31. C. Galle, 16,220
Evidence—Commission oj cognizable ojfcncc—Investigation b’J police officer—Highlto continue it after commencement of magisterial inquiry—Statement of accusedto police officer—Right of Crown to use it after close of defence—il lode of provingsuch statement—Criminal Procedure Code, ss. 153, loo cl scq., '137(!)—r
Evidence Ordinance, s. loo.
The appellant was convicted of murder. At tlio trial he gave evidence onhis own behalf. In the course of the cross-examination ho was asked whetherho mndo certain statements to tho police officer who investigated the circums-tances of tho commission of the offenco. As lie did not admit tho statements,tho prosecuting Counsel, after the closo of tho defence, sought to impeach hiscredit by proving that ho made those statements. Tho statements In questionwero recorded by tho police officer after tho Magistrate had commenced hispreliminary inquiry at tho sccno of tho offenco and after ho had modo orderremanding tho accused to Fiscal’s custody.
Held (by tho majority of the Court), (i) that an investigation by a policoofficer under Chapter 12 of the Criminal Procedure Code does not automaticallycome to an end upon the commencement of tho Magisterial inquiry undersection 153, or Chapter 16, of tho Criminal Procedure Code.
that tho statements mado by tho accused to tho polico officer weroadmissible under section 155 of the Kvielenec Ordinance to impeach tho creditof the accused by proof of former statements inconsistent with his evidence.R. v. Thuraisamg (1952) 54 L. R. 449, distinguished.
that tho police officer’s evidence in tho instant case amounted to hisgiving oral evidence of tho contents of the statement mado to him and wastherefore unobjectionable. It. r. Jinadasa (1950) 51 L. R-. 529, followed.
Held further (by the whole Court), that even if tho appellant was underillegal detention at tho timo his statement was recorded by tlio police, evidenceof tho statements made by him could not properly bo oxcludcd on tho sologround that he was illegally detained when he made the statements sought tobe proved.'
j/^PPEAL, with application for leave to appeal, against a convictionin a trial before the Supreme Court.
Colvin 11. de Silva, with 31. 31. Kumarakula'sintjham and .1. IV. IV.Guneicardeita (Assigned), for Accused-Appellant.
T. Thamolhcram, Crown Counsel, for Attorney-General.
Cur. ado. vult.
July 6, 1955. Basxayakb, A.C.J.—
At tho end of tho argument of this appeal wo announced that thomajority of tho Court wore of the opinion that the appeal should bodismissed and accordingly dismissed the appeal. Wo indicated to counselthat ire would give tho reasons for our decision at a later date.
This is an appeal from a conviction of murder. The appellant, whogave evidence on his own behalf, does not deny that lie caused the injuriesthat resulted in the death of tho deceased, but he pleads that ho causedtho death of tho deceased whilst deprived of the power of self-control bygrave and sudden provocation.
The appellant is a mechanic and an electrician ; the deceased wasa nurse. It would appear that the appellant and the deceased hadeomo to know each other about four years prior to this tragedy and hadbfccome so friendly that at one time they were contcnijdating marriage.According to the prosecution about four months prior to the date of thistrime the appellant had approached Miss Gunasokara, the Matron incharge of the Nurses’ Quarters where tho deceased lived, and had confidedin her the fact that he was in love with the deceased and that sho wastrying to give him np and had asked her to intercede on his behalf.The Matron did not ngreo to do so. According to tho appellant thocordial relations between him and the deceased had never been disturbeduntil this tragic event, and lie says that he continued to visit the deceasedonce a month as lie was wont to do and that this tragedy occurred onthe day of his monthly visit.
It is common ground that on the afternoon of 23rd November, 1 9Ji,the appellant came at about 5 p.ni. to tiro Nurses’ Quarters of the GallcHospital. The versions of the prosecution and the defence differ as towhat happened after the appellant entered tho building. Accordingto the prosecution, in about two or three minutes after tho appellantentered the silting room the deceased ran out into tho front verandahpursued by tlio appellant. Ho caught up with her, seized her by tholeft upper arm. and began to stab her cm the back of her chest ancl kepton stabbing. The deceased endeavoured to get away but the appellantfollowed stabbing her till she fell, and did not stop even then. The attackon the deceased is described in detail by a witness named Caroline Nona,who deposed as follows :—.
c: I only saw the accused entering the verandah from tho stops.The fx-nllemnn (points to the accused in the clock) entered the sittingroom" in front of the deceased. The deceased immediately got up,and wanted to go into her own room.
To Court..
I knew that because I was watching, as I had not seen theaccused before, and as he entered the sitting room I was lookingto sco what he was going to clo. As tho accused wont up to thedeceased she moved towards the back door of the sitting roomin which direction her own room was situated.
. The accused seized tho deceased by the arm. The deceased releasedthe hold and rushed out to the front of tho quarters to the verandah.At that time I did not see tho coat which tho accused had been carryingon his arm. 1" do not know what had happened to it. As tho deceasedran out tho accused ran behind her. Then the accused hold thodeceased and went on stabbing her. The deceased was running inthe direction of tho ping pong table. The accused held her by theupper arm from behind and went on stabbing her. I did see theweapon then. Then tho deceased fell, and even after she fell thoaccused stabbed her once. Up to that time he had stabbed her 5 orG times. Then the deceased ran. I did not sec in which directionshe ran as I ran a way from the verandah towards the bade of thequarters crying out, with tho intention of informing the Matron inthe hospital quarters. After tho stabbing the accused said : ‘ Don’ttrouble me, I am going to the Police. ’ lie said that in Sinhalese.Then he got out of the verandah and went out of the front gate. ”
Tho doctor who examined the deceased described fourteen injuries.Of these twelve were stab wounds. Three of them were round aboutthe left arm pit, one on the left upper arm, two on the scapula, three cmthe neck, two on tho back near the spine and above the pelvis. Theinjuries were consistent with the evidence that- they were inflicted frombehind.
The appellant in his evidence stated that on tho fatal day at about5 p.m. he came to the Nurses’ Quarters to see the deceased as usualwith a paved of apples, grapes and chocolates. As there was no onoin the verandah he entered the sitting room. He took off his coat ashe was used to do and placed it on the settee. As lie heard the deceasedwhispering in a room, ho went near it and called her. She came outand they both sat on the settee. She appeared to be pleased to see him.Ho asked for a cup of tea and after lie had drunk it he handed to thedeceased the parcel lie had brought her. She took it and left it in herroom. A little while later he asked her to bring two apples from thoparcel and began to pool an apple. While doing so the appellant askedthe deceased whether it was true that she was getting married to FranklinDharmadasa. She then asked him who had given that informationand was told that some one wiio had walked out of those quarters hadgiven him the news. Then the deceased said that the appellant shouldnot interfere with her private affairs and asked him to leave the quartersat once. He then said jocularly that those were not her quarters. Thenshe started pushing the appellant away. She saitl she would be gettingmarried to Franklin Dharmadasa on the 2Stli of November and that showould not allow anybody to see her in those quarters after that. She .continued to push the appellant and attempted to pull out from his toppocket a handkerchief she had given him. The pocket was torn inthe attempt. S'hc continued to push the appellant out of the hall. Theappellant’s version of what happened thereafter in his own words is asfollows:—
“ Then I lost my self-control and I cannot give any further accountof what happened. I had the knife and I do not know what I. did.
Later I found blood on the blade. I know that we.were last togetheron tire verandah and the deceased was clinging to me trying to take• the handkerchief from my shirt pocket. When she gave me theinformation that she was getting married on the 28tli November Ifelt disheartened. I had been looking after her for the last so manyyears and I lost my head at that moment.
Q.It is reasonable to suppose that y'ou were not pleased by thenews that she. was going to get married to somebody else ?
I was not pleased.
Q.Were you provoked ?
A. Yes
Q.Then ?
At that time I have been stabbing her and after a few minutesI saw blood on the blade. Then I knew that my girl had beeninjured.
Q.You. knew having seen blood on the blade that your girl hadbeen injured and you also surely must have known that theinjuries must have been inflicted by you. Is that not so ?
A. Yes.”
The plea of causing death while deprived of the power of self-controlhy grave and sudden provocation was rejected by the jury who returneda unanimous verdict of guilty of murder against the appellant.
Learned Counsel for the appellant submits that the appellant's trialwas vitiated by the admission of inadmissible evidence and he invitedus either to quash the proceedings and order a re-trial or to substitutefor the verdict of the jury a finding of culpable homicide not amountingto murder on the ground that the death was caused by the appellantwhilst deprived of the power of self-control by grave and suddenprovocation.
It will be convenient at this point to refer to the specific evidence towhich exception is taken. In the course of his cross-examination, theappellant was asked whether lie Ixad made the following statements toSergeant Dhrahaman :■
(«) “ The last time I visited was somewhere in June this year. Imet the deceased. She spoke to me and asked me to go homeand she went into her room. I then told Miss Gimasckcra theattitude adopted by the deceased and requested her to speakto the deceased and bring her out. Miss Gimasckcra informedmo that she lias nothing to do with private affairs. ”,
{b) “ J then sent a letter of demand through my lawyer Mr. E. P.Rupasingho of No. 11, Belmont Street, Colombo, dated 2SthJuly, 1954 to the deceased. I have got a copy of flic same. ”
(c) “I then left to the quartet's at about 5.20 p.m. As I enteredthrough tho first gate I noticed Lttcihamy entering throughthe other gate of tho quarters. She smiled at me. I wentinto tlio sitting room with the coat folded in my arm. ”
As the appellant did not admit the statements, learned Crown Counselafter tho close of tho defeneo sought to impeach his credit by provingthat he made tlioso statements. With this end in view he applied forleave to call Sergeant Dhrahaman “ in rebuttal ”. The application wasallowed. Police Sergeant Dhrahaman was thereafter examined by GrownCounsel. Under examination he said :*
" On the 23rd of November last year, I recorded a statement ofthis accused at the hospital police post at 10 p.m. (The witness isasked to refer to the statement recorded by him).
Then follows the following questions and answers :—
Q. During the course of that statement, did the accused say " Tholast time I visited was somewhere in Juno this year. Imet tho deceased. She spoke to me and asked mo to go homeand she went into her room. I thon told Miss Gunasekerathe attitude adopted by the deceased and requested her tospeak to the deceased and bring her out. Miss Gunasekerainformed me that she has nothing to do with private affairs "?
A. Yes, he did.
Q. Did the accused in his statement to you also say this : “ I thensent a letter of demand through my lawyer Mr. E. P, Rupa-singhc of No. 11, Belmont Street, Colombo, dated 2Sth July,1954 to the deceased. I have got a copy of the same. Onthis letter of demand I got a letter from the deceased that sheproposes to settle the same in instalments of Rs. 100 a month.
I have this letter too with me ” ?
A. Yes.•
Q. Did the accused further state as follows ;—‘‘ I then left to thoquarters at about 5.20 p.m. As I entered through tho first<gate I noticed Lncihamy entering through the other gateof the quarters. She smiled at me. X went into tho sittingroom with the coat folded on my arm ” ?
A. Yes.
I read this statement back to the accused after I hadrecorded it and he signed it and accepted the statement asa correct record of what lie had told me, and I have madea note of that too. ”
Learned Counsel for the appellant submitted that these statementswere inadmissible on the following grounds :—
that they were taken by Sgt. Dhrahaman after tho appellant hadbeen remanded to Fiscal’s custody and was being illegallydetained by the Police ;
■(b) that the statements consisted of non-soverable parts of aii inad-missible confession taken out of their context ;•
that oral evidence of statements taken down in writing lias boon
given ;
that such evidence is excluded by the decision of this Court- in
Rex v. Jinndusa 1 ;
that what Sergeant Dhrahaman in effect did was to give inadmissible
secondary evidence of the contents of a document alleged tohave been signed by the appellant ;
(/) that the appellant had been given no opportunity of dealing withthis allegation, which was made for the first time after thodefence had closed its case.
Tho first of the objections taken by .learned Counsel for the appellantwas not raised in the court of trial. There was therefore no occasion attho trial to elicit all tho facts relating to tho circumstances in which thostatement of the appellant came to bo recorded after the Magistrate hadcommenced proceedings. It would appear from tho transcript of theproceedings that the appellant came to tho Police Post at the GuileHospital premises at 5.25 p.m. and that Sergeant Dhrahaman camethere at about 15.15 p.m. and began the investigation. Twenty minuteslater, Inspector "Wickromasingh© who came Micro continued the investi-gation. The Magistrate arrived at the scene shortly after G.45 p.m.and commenced his preliminary inquiry at the Police Post where theappellant was. The charge, was explained to him and soma evidencetaken. At the conclusion of tho proceedings the Magistrate made orderremanding tho appellant to tho custody of tho Fiscal and adjourned theinquiry for tho next day at- tho Magistrate’s Court. The appellant doesnot appear to have been removed to tho remand jail by the Fiscal atall that night-. Sergeant Dhrahamun’s evidence shows that it was he whotook the appellant to the- jail at 1.15 a.m. that night or more correctlytho next morning and handed him to flic jail guard, after recordingtho appellant’s statement on the orders of Inspector Wic-kremasinghe.It would appear that the statement was long for it took nearly threehours to record it. As the prosecution has not had an opportunity ofexplaining why the Fiscal did not- remove the appellant to the remandjail immediately after the Magistrate made the order of remand we donot think wc would ho justified in expressing an opinion on the questionwhether tho appellant was illegally detained b}' the police.
The evidence discloses that, when tho Magistrate arrived, the inquiryunder Chapter XII of the Criminal Procedure Code had commenced andwas in progress. On his arrival it appears to have been suspended andcontinued after his departure. There is nothing in the Criminal Pro-cedure Code which provides that on tho commencement of an inquiryunder Chapter XVI an investigation under Chapter XTI should cease,nor has Counsel cited any authority in support of that proposition. Intho view' of the majority of us an investigation under Chapter XII doesnot automatically eomo to an end upon the commencement of tho pre-liminary inquiry under section 153 of tho Criminal Procedure Code or
1 51 X. L. R. 520.
under Chapter XVI. (The other member of the Bench is of the viewthat this question does not ariso for decision, for the reason that it hasno bearing on the admissibility of the evidence.)
The majority of us are therefore of tho opinion that the recording oftho appellant’s statement by Sergeant Dhrahamnn was not illegal forthe reason that it was done after the commencement of the Magisterialinquiry. We aro all agreed that even if the appellant was under illegaldetention at tho time his statement was recorded evidence of the statementsmade by him cannot properly bo excluded on the sole ground that howas illegally detained when ho nlado the statements sought to be proved."We are not .aware of any previous case in which this very question hasbeen decided nor has cither counsel cited any such case. But there arcnumerous decisions of this Court which hold that the mere fact thatevidence is obtained in the course of a search in which tho officers makingthe search fail to comply with the provisions of tho law governing suchsearch is no ground for excluding evidence so obtained if such cvidencois otherwise admissible. The majority of those cases are decisions underthe Excise laws. It is sufficient here to refer to the cases of JRnjapakse v.Fernando 1 and Peter SingJio v. Inspector of Police, Ycyangoda i. LearnedCrown Counsel has drawn our attention to the recent Frivy Councildecision of Kuruma, son of Kaniu. v. The Queen 3, where on a trial on achargo of unlawful possession of ammunition evidence of tho searchand the finding of the ammunition by an officer who by virtue of hissubordinate rank had no power to search was held to bo admissible.Wo should not be taken as laying down the broad proposition that evidenceillegally obtained would under all circumstances and in every case beadmissible. Cases in which a Court of law may properly exclude suchevidence aro conceivable.
The next question that arises for deci-'ion is whether the evidence oftho appellant’s statements to Sergeant Dlirahaman has been properlygiven. Learned Counsel for the appellant strenuously argued that inthe circumstances of this case the learned Trial Judge was wrong inallowing Sergeant Dhrahaman to be called in rebuttal under section 237 (1)of tho Criminal Procedure Code. He contended that Dhrahaman’sevidence included evidence of admissions alleged to have been made bythe appcllent about the state of his relations with tlie deceased in Juneand July 1951. and about the prosecution witness Lticihamy’s presenceat the tragedy ; that the facts so alleged to have been admitted werein issue at the trial ; and that if the Crown relied on those admissionsthe Crown could, and therefore should, have led evidence of them beforethe appellant entered upon his defence. The decision in P. v. Thnraisamy *was relied upon in support of this contention. .Rebutting evidence isevidence which is given by one party in a case to explain, repel, counteractor disprove evidence produced by the other party. In the instant caseCrown Counsel was not seeking to introduce new evidence to meet theevidence given by tho appellant and what he sought to do was in factto exercise the right he had under section 155 of tho Evidence Ordinanceto impeach the credit of the appellant by proof of former statements
1 52 N. 7,. Jt. 361 ; 4-5 C. L. W. C. 3 (1055) 2 IK. L. It. 223.
1 42 C. L. JT. 15.* (1952) 51 -V. L. It. 449 ; 47 C. L. T!'. 105.
inconsistent •with his evidence. The majority cf the Court aro of the viewthat the learned Trial Judge was right in permitting Sergoant Dhrahamanto he called in order to prove former statements of the appellant inconsis-tent with his evidence. Our view gains support from the decision of thisCourt in the case of Rasiah v. Supjtiah *.
Alternatively he submitted that if it was not the written statementthat was proved oral evidence of the contents of a document had beengiven when under the Kvidenco Ordinance such evidence is excluded.
We now come to the submission of learned Counsel that what CrownCounsel in effect did was to adduce oral evidence of the contents of awritten statement alleged to be signed by the appellant and to containwhat- the appellant sai .1 in answer to Sergeant Dhrahaman. The majorityof us aro unable to iphold this submission. In the case of Rex v. Jinadasa(supra) it has been held by this; Court that a Police Officer or Inquirermay give oral evidence of a statement made to him. This is what Ser-geant Dhrahaman did. lie was asked by C. own Counsel to me thewritten statement for the purpose of aiding his memory but it is notclear from the transcript whether lie used it for that purpose. In supportof his argument that it was the written statement that was provedlearned counsel for the appellant relied strongly on Sergeant Dhrahaman’sevidence that he read the statement back to the appellant after he hadrecorded it and that the appellant signed it and accepted it as a correctrecord. It is unfortunate that Sergeant Dhrahaman should have goneon to say this. But the majority of us are unable to regard this evidenceas amounting to the production in evidence of the statement itself.
Appeal dismissed.