084-NLR-NLR-V-56-RUPARATNE-Appellant-and-THE-QUEEN-Respondent.pdf
Ruporatne.v. The Queen
353-
[Coubt of Criminal Appeal]
1955Present : Rose C.J. (President), Gunasekara J.and Weerasooriya J.RUPARATNE, Appellant, omd THE QUEEN, Respondent.
Appeal 10 of 1955, with Application 13
S. C. 34—AI. G. Kuninegula, 8,934
Criminal Procedure—Evidence of accused—Contradictory of previous statement to-Police – Eight to -prove such statement—Evidence in rehuttul—Impeachingcredit of witness—Evidence Ordinance, ss. PJU (0), J55 (c)—Criminal ProcedureCode, ss. P2> (3), >37 (/).
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TliO licensed ill u trial for murder gave evidence on liis own behalf wliielidiffered from a statement that had been made by him to an Inspector of Policeto tlie effeet that about a month prior to the deceased’s murder the deceased
:S54
WEERASOORIYA J.—Ruparatne v. The Queen
and his brother had assaulted the accused. Although oral evidence of thatstatement to the Police could have been adduced by he prosecution as part ofits case on the basis that the statement was an admission by the accused relatingto a probable motive For the commission of the alleged murder, there were certaincircumstances which deterred the prosecution from adducing evidence of it in thefirst instance. When, however, the accused denied in cross-examination thathe had made such a statement, the trial Judge permitted the Crown to call theInspector of Police to give evidence of the statement for the purpose, as statedby him, of showing that “ the witness made a different statement to the Police".The jury were also warned, in the summing-up, that the effect of tho evidenceof the accused's statement to the Police could not properly be treated assubstantive evidence of any fact.
Held (by the majority of the Court), that the trial Judge was not wrong in■permitting the Crown, after the case for the defence had been closed, to leadevidence of the statement made by the accused to the Inspector of Police.
“ As was pointed out in the case of Rasiah v. Suppiah [(1949) 50 N. L. R. 265]•the right given to a party under Section 155 (c) of the Evidence Ordinanceof impeaching the credit of a witness by proving a former statement which isinconsistent with bis evidence is, strictly speaking, not a right to adducerebutting evidence for which, by leave of the Judge (in the case of a trial beforethe Supreme Court), special provision is contained in Section 237 (1) of theCriminal Procedure Code. ”
Thuraisamy v. The Queen (1952) 54 N. L. R. 449, distinguished.
/^LpPEAL, with application for leave to appeal, from a convictionrin a trial before the Supreme Court.
W. E. M. Abeysefcera, with L. F. Ekanayake, for the accused appellant .
Vincent T. Thamotheram, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
March 14, 1955. Weerasooriya J.—
Tho substantial point that was raised in this appeal relates to what is: alleged to be an improper exercise of the learned trial Judge's discretion!in permitting the Crown to call certain evidence in rebuttal.
The appellant was charged with the murder of one Ran Banda by■ shooting, and the evidence against him consists in the main of tho evidenceof an eye-witness Dingiri Appu, supported by certain items ofcircumstantial evidence.
The prosecution had in their possession a statement which was allegedto have been made by the appellant to the Inspector of Police in whichthe appellant was recorded as having said that about a month prior to the•deceased’s murder the deceased and one Dingiri Banda (a brother ofthe deceased) assaulted him because he had held tho hand of their step-• sister Kawamma. Although this statement was one which was madeto tho Inspector of Police in the course of the investigation under ChapterXII of the Criminal Procedure Code it would seem on the authority ofthe decision in Rex v. Jinadasa 1 that oral evidence of it coidd have been
(1950) 51 N. L. R. 529 at 540.
WEE R A8GORIYA J.—Ruparatne v. The Queen
365
adduced by the prosecution as part of its case on-the basis that thestatement was an admission by the appellant relating to a probable■motive for the commission of the offence with which he was charged.
The prosecution elected, however, in the presentation of its easo,tto refrain fiom adducing, this evidence, may be for the reason (apartfrom, perhaps, a reluctance to use a statement by an accused jjerson ton Police Officer as substantive evidence against the person making it) thatit was regarded as unlikely that Dingiri Banda, whom it called as a witnessto testify to certain other matters as well, would support the allegation•of an assault on the appellant by him and the deceased. The evidoncogiven by him in fact negatived such an assault since he stated thatalthough Kawainma had made a complaint to him against the appellant,he took no action on that nor did ho know whether “ the deceased•did anything about it ”, There was also the evidence of the eye-witnessDingiri Appu, who is the father of Kawainma, that despite her complaintagainst the appellant he was not angry with the appellant “ at any time ”and that as far as he knew the deceased and the appellant were not«nemios, and the evidence of the mother of Kawamma that the deceasedand tho appellant were on speaking terms. In the circumstances itseems to tho majority of the Court that the prosecution cannot fairly bo-criticised for not adducing the evidence of the appellant’s statementas part of its case in the first instance.
When tho ap]>ellant gave evidence on his own behalf at the trial hotook up the position that the deceased was his “ best friend ”. This•ovidonce, it will bo seeu, is not inconsistent with the evidence alreadyadduced by the prosecution and referred to in the preceding paragraph asregards the relations that existed between the doceased and the appellant.Under cross-examination the appellant was confronted with his statementto the Inspector of Police and questioned whether he had made it. Theappellant denied that he had made such a statement. After tho casofor tho defence was closed learned Crown Counsel made an application toSjc permitted to lead evidence of this statement by calling the Inspector•of l'oliee. Although objection was taken by the defence to this applica-tion the learned Judge overruled it and peimitted the evidence to boled for the purpose, as stated by him, of showing that “ the witnessmade a different statement to the Police ”.
In his eharpo the learned Judge warned the jury as to the effoct ofthis evidence and explained that it could not properly be treated assubstantive evidence of ^ay fact, and it was conceded by learned counselfor the appellant that this warning was an adequate one. But liesubmitted that in a case of this nature where in the proof of tho chargeagainst the appellant the prosecution had to rely mainly on a single■eye-witness the effect of this evidence might well have been prejudicialto the appellant in that, despite the warning, the jury may haveimproperly regarded that evidence as proof of a motive for tho appellant•to have killed the deceased, and that in the circumstances tho learnedJudgo should not have permitted the prosecution to adduce tho evidencein question even for the limited purpose stated by him.
350
WEERASOORIYA J.—Ruparatne v. The Queen
It seems, however, to the majority of the Court that this is not asubmission which can be accepted. As was pointed out in the case ofRaoiah v. Suppiah1 the right given to a party under s. 155 (c) of theEvidence Ordinance of impeaching the credit of a witness by provinga former statement which is inconsistent with his evidence is, strictlyspeaking, not a right to adduce rebutting evidence for which, by leave ofthe Judge (in the caso of a trial before the Supreme Court), specialprovision is contained in s. 237 (1) of the Criminal Procedure Code. Inthe present caso no objection was*taken by the defence to the cross-examination of the appellant nor did the learned Judge himself, despitethe power givon to him under s. 120 (6) of the Evidence Ordinance tolimit the cross-examination relating to the credit of the appellant, chooseto interfere when the appellant was questioned whether he had not madea statement to the Inspector of Police which was inconsistent with hisevidence as to the relations that existed between himself and the deceased.Possibly one Teason why the learned Judge chose not to interfere at thisstage was that had the appellant answered that question in the affirmativehis roply could not have beon excluded as inadmissible. It does notappear to tho majority of the Court that the learned Judge wronglyexercised his discretion in this instance. That being so, it would be seenthat when the prosecution made the application to adduce evidence of thestatement which the appellant is alleged to have made to the Inspectorof Police there was no ground on which it could have been refused.Had tho application been refused, counsel for the appellant may wellhave complained (notwithstanding that the application was objectedto by the defence at the trial) of the prejudice that could have beencaused to tho appellant by it having been brought to the notice of thejury in the course of the cross-examination of the appellant that he hadmade an inconsistent statement to the Inspector of Police, and that therefusal of the Judge to allow the Inspector of Police to be called in effectprevented tho defence from cross-examining him on the basis that thostatement imputed to the appellant was never in fact made.
The majority of the Court consider that this case can be distinguishedfrom that class of cases in which according to the following observationsof Lord Du Parcq in Noor Mohamed v. The King 2 evidence which couldbe prejudicial to an accused should be excluded :
“ In all such cases the Judge ought to consider whether the evidencewhich it is proposed to adduce is sufficiently substantial, having regardto the purpose to which it is professedly directed, to make it desirablein the interests of justice that it should be admitted. If, so far asthat purpose is concerned, it can in the circumstances of the casoliavo only trifling weight, the Judge would be right to exclude it. Tosay this is not to confuse weight with admissibility. The distinctionis plain, but cases must occur in which it would be unjust to admitevidence of a character gravely prejudicial to the accused, oven thoughthere must be some tenuous ground for holding it to bo technicallyadmissible. The decision must then be left to tho discretion and souse
of fairness of tho Judge.”
1 (1949) 60 N. L. R. 206.
(1949) A. C. 1S2 lit 192.
Silva v. Afuniammn
357
In tlio present case it cannot in the view of tho majority of the Court bourged that the evidence in question was of trifling weight in so far as itcould have been legitimately used as a test of the credibility to be attachedto the evidence of the appellant, or that the learned Judge should nothave permitted it to have been led on the ground of the possibility thatthe jury, despite the adequate warning given by him, would improperlyuse it as substantive evidence of the facts to which it relates.
Tho majority of the Court are also^of tho opinion that the present caseis distinguishable from the case of Thuraisamy v. The Queen 1 where tholearned trial Judge fell into the error of directing the jury that certainevidence which had been adduced to contradict tho ovidenco of thoappellant in that case could be treated as substautive evidence of the factsdeposed to.'
As to tho remaining points raised at the hearing of tho appeal, we nroof the opinion that there was sufficient evidence to enable tho jury toreturn the verdict which they did. The appeal and application are,then-fore, dismissed and the conviction and sentence affirmed.
Appeal and application diainiaeed.