106-NLR-NLR-V-22-THE-KING-v.-APPU-SINNO.pdf
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[Crown Case reserved.]
Present: Shaw J. and De Sampayo J.
THE KING APPU SINNO.
4—P. C. Hatara, 17,821.
Plea of autre fois acquit—Verdict of acquittal by jury 6 to 2—Directionof Judge to reconsider verdict—Jury divided 4 to 3—Re-trial beforeanother jury—Plea of autre fois acquit—Evidence—Witness nottendered for cross-examination by accused in Police Court—Dis-appearance of witness—Reading of evidence to jury—CriminalProcedure Code, ss. 248, 331—Evidence Ordinance, ss. 33 and 167.
. The jury returned a verdict of not guilty against the accused,who was charged with murder. The Judge directed the jury toreconsider the verdict. The jury were then divided in proportionof 4 to 3. The Judge discharged the jury. The accused wasre-tried before another jury, and the plea of previous acquittal wastaken on his behalf.
Held, that the plea was untenable.
A witness gave evidence before the Magistrate when the accusedwas not present. . The Magistrate issued a warrant, but theaccused was not arrested for some months. The witness hadby this time disappeared, and consequently he was not recalledfor cross-examination by the accused. The deposition of thewitness was read at. the trial before jury without objection.
Held, that the evidence was inadmissible, and should not havebeen read to the jury.
Held, further, that the provisions of section 167 of the EvidenceOrdinance applies to the consideration of a “ case stated ” aftertrial by jury.
C
ASE stated under section 355 (l) of the Criminal ProcedureCode by Bertram C.J.:—
In this case, before the jury was empanelled, counsel for thedefence raised a plea of previous acquittal under seotion 331 of theCriminal Procedure Code. He argued that a valid acquittal hadtaken place at a previous trial, which was held at the Galle sessionsin July of this year. The note of the Registrar upon the record of thecase at that trial was as follows: “Trial; June 30, July 1 and 3, 1920.Verdict: Jury being unable to bring a verdict unanimously, or by thestatutory majority, they are discharged, and the prisoner remandedinto the custody of the Fiscal to be brought to trial in due course.”
It was stated by counsel for the defence, and not contradictedby Crown Counsel, that at the previous trial the. jury in the first instancereturned a verdict of not guilty by a majority of 5 to 2, but that thepresiding Judge, under section 248 (2) of the Criminal Procedure Code,28
1920,
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1920;.- not approving of the verdict, directed the jury to reconsider it, and
—7 that thereupon having further retired, the jury announced that theyKing v. were divided in the proportion of 4 to 3. The Judge thereupondischarged the jury.
It was contended by counsel for the defence that under thecircumstances the original verdict, being the only verdict delivered,must be taken to be a valid verdict, and that the provision of section240, which states that “ the verdict given after such reconsiderationshall be deemed to be the true verdict,** only applied when after suchreconsideration a verdict is in fact arrived at.
I was unable to admit this contention. It appeared to me thatin the circumstances no “ true verdict ” had been arrived at in the trialat all. I would further add that this sub-section is clearly designedto give effect to a principle of the English law of criminal procedure,being drawn in accordance with the express terms of a judgment inan English case. There can be no doubt that in the English law, ifa jury was asked to reconsider their verdict and on reconsiderationfail to agree, they would be discharged, and the original verdict wouldbe held to have no.force. I consider that section 250 must be heldto apply to the present case, but if any doubt is entertamed as to whetherit does apply, and if it is suggested that this is a case in which no expressprovision has been made, then, in my opinion, it is a case in whichrecourse may legitimately be had to the principles of English criminalprocedure under section 0 of the Criminal Procedure Code.
I accordingly over -ruled the plea, but informed counsel for thedefence that, in the event of the trial taking a certain course, I wouldfurther consider any. application he thought fit to make in thematter.
0. At the conclusion of the trial the jury unanimously found theprisoner guilty. Counsel for the defence then applied to me to reservethe point under section 355. Although I do not myself entertain anydoubt on the point, yet, as the question involves the execution of acapital sentence, I reserved the question of law raised by counsel forthe defence, and refer it to the decision of a Court consisting of twoJudges. ,
Since the conclusion of the trial. I have observed another pointwhich requires consideration. The deposition of a boy named Hen-drick, who gave evidence at the Magisterial inquiry, but subsequentlydisappeared, was tendered in evidence by -the Crown, and withoutobjection from counsel for the defence was read at the trial. It wasoverlooked that at the time the deposition was made (January 8, 1919)the prisoner was not present. He had disappeared, and his arrest wasnot effected till September 30, 1919, by which time Hendrick himselfhad disappeared. The condition prescribed by section 33 of theEvidence Ordinance that “ the adverse party in the first proceedinghad the right and opportunity to cross-examine ” was thus not complied-with, and the deposition was therefore, in my opinion, wrongly admitted.I .do not think that the admission of this evidence in any way affected
. the result of the trial. But, as a capital sentence is involved, I think,it right that the question of the admission of this evidence and of itseffect upon the trial should be adjudicated upon by independentminds, and I therefore refer this question in the same manner. Acopy of the deposition of Hendrick is attached to this case. *
Hendrick was a homeless boy, who had taken refuge-in the houseof Heenhamy, the sister of the murdered woman. According to hisown apcount he came up at the moment of the murder, and being
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shocked by what he saw fainted on the spot. He saw, but did not 1920.know, the man who committed the murder. It was not proved that —he knew either the accused Appu Sinno or the “husband” of thedeceased woman (also called Appu Sinno), who, according to the defence,tnn°
was the murderer. The Magistrate, in recording the deposition,makes h. „ refer to the murderer as “ Appu Sinno,” but this is clearlyan error on the part of the Magistrate. There were two other eye-witnesses, Heenhamy and Karonchihamy, and three others who cameupon the scene immediately afterwards, one of whom, Peter, swore thathe saw the murderer going to and returning from the spot, and anotherof whom, Hinniappu, swore that he saw him running away with a knifein his hand and blood on nis clothes. The evidence of Hendrick wasof comparatively little weight. It was consistent with the case putforward by the defence, and the fact of his disappearance was capableof being used, and was in fact used, as an argument for the defence, asit was open to the explanation that he ran away sooner than give falseevidence in support of those who had befriended him. In chargingthe jury, I recommended them to attach no special importance to theevidence of Hendrick either one way or the other, and I do not thinkthat it is possible that it in any way swayed their minds.
It may be well, tb' of ore, that I should explain on what, in myopinion, the case actually turned. The evidence of the witnessesabove referred to was full, explicit, and unshaken. Apart from onepoint—the fact that one witness said he was sawing wood, whereasbefore the Magistrate he said he was planting potatoes—there wasnothing urtheir evidence to suggest any doubt as to its truth, and itwas strengthened by the finding of an umbrella, said to have belongedto the accused, upon the spot. There were, however, two circumstanceswhich affected the case for the prosecution, and which were madethe basis of the case for the defence. The first was a certain shiftinessin the evidence of Appu Sinno, the “ husband ” of the deceased, andthe second, a delay which took place in the reporting of the murder tothe authorities.
With regard to the evidence of Appu Sinno, the circumstanceswere as follows The deceased woman had lived with him at her ownhouse for six years as his mistress (though she is throughout the casespoken of as his wife). The accused was also a member of the house-hold, being a suitor for the hand of a daughter of the deceased, MissiNona, and having indeed, according to statements made by both thedeceased and the daughter, already lived with the girl as her husband.
Three weeks before the murder, in the absence of the witness AppuSinno, a quarrel took place owing to an alleged assault upon Missi Nonaby the accused. In consequence of this incident, Missi,Nona waswithdrawn from the house and sent to Appu Sinno’s house at Weligama.
The deceased and the accused, however, appear to have settled theirdifference, and the accused returned to the house (or, possibly, livedin the house adjoining). From this time to the murder, a period ofabout three weeks, Appu Sinno (who was'a carter baas), though he sawthe deceased from time to time, if he had occasion to sleep in the village,did not sleep in his wife’s house, but at the gala of one Digala Ralahamy,where he left his carts. Before the Magistrate he explained this absenceon the ground that he was ashamed of the scandal caused by the familyquarrel, and he hinted *hat he disapproved of a settlement undersuch circumstances. At ilie trial, however, he gave a wholly differentexplanation, namely, that he Was afraid of the accused as a manlikely to do him mischief, but thought that his “ wife ” being in her ownvillage might safely be left to look after herself.
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lg20.With regard to the delay in reporting the murder, the circum-
.• – stances are as follows : The murder took place in the forenoon. NewsThe King v. of it was brought by Heenhamy to Appu Sinno at Digala Ralahamy’sAppu Sinno gala (which is about 2J miles from the scene) at about 12 o’clock.
Appu Sinno did not report it to the headman until 6 o’clock. He sentHeenhamy to report it. She went home first, took the witness with her,and ultimately reached the headman’s about the same time as AppuSinno. Allowing for the fact that the headman lived some miles away,there appeared to be a certain delay requiring explanation, particularlyin the oase of Appu Sinno. Appu Sinno accounts for the delay byexplaining that Heenhamy told him that the murderer as he left thespot threatened to kill him also. The utterance of this threat wascomfirmed by Heenhamy, Karonohihamy, and Hinniappu. In viewof this threat Appu Sinno had kfept out of the way until he heard thatthe murderer had left the neighbourhood by motor bus. This wason the face of'it a reasonable explanation, and it was confirmed by thefact that Appu Sinno told this story to 'the Magistrate the next day.The headman also told the Magistrate that Appu Sinno had told himof the threat the previous evening. As against this there was thefact that none of the three witnesses mentioned this threat to thePolice Magistrate, and there was the curious circumstance that whenAppu Sinno reported the murder at the Akuressa police station, hesaid that he got news of it.at 4 o’clock, although he had already told theheadman that the news reached him at noon.
These two points form the basis of the theory of the defence.It was suggested that the accused and the deceased had formed anillicit intimacy ; that Appu Sinno had suspected it, and that this was thereason why he did not sleep at his wife’s house when in the village thelast three weeks of her life; that he himself had committed the murder;and that the interval above referred to had been spent in instructingthe witnesses. As against this theory there was the fact that DigalaRalahamy himself swore that he was present when Heenhamy broughtthe news ; that Heenhamy mentioned the threat; and that in conse-quence of the threat he advised Appu Sinno not to venture outfor some time. That he ultimately learned that the murderer hadleft the neighbourhood, and that thereupon Appu Sixmo went and toldthe headman. If Digala Balahamy’s evidence was accepted, it wasfatal to the theory of the defence. The defence accordingly suggestedthat it was Digala Ralahamy himself who was primarily responsible forthe fabricating of the case for the prosecution, and that the witnesseshad all sworn falsely because of pressure from him. It was representedthat he was a very powerful and influential man, that Appu Sixmowas one of his dependents, and that he had intervened to save himfrom the gallows.
The evidence of Digala Ralahamy was thus of the first import-ance. He was a man of great respectability, and held various Govern-ment offices. He appeared to be a man of substantial means ; he hadpurchased and developed various lands in the neighbourhood. Thecase in large measure turned upon his evidence, which was of the mostimpressive character, and it became a question for the jury whether, inview of his evidence, they ought to have any reasonable doubt in actingon the evidence of the eyewitnesses. J drew the attention of the juryto the vital nature of his evidence, and it seemed to me that it was onthis that the case turned. There was the further circumstance, onwhich Crown Counsel laid stress, that the theory of the defence involvedthe supposition that Heenhamy had seen her sister slaughtered beforeher eyes, had fabricated a false story to shield the murderer and to
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implicate an innocent man* As I have already observed, I do not 1920.
think it possible that the jury, in the verdict they arrived at, were in
any way swayed by the evidence of Hendrick.The King v.
ApvuSinnc
Colombo, November 5, 1920.
Wickreme Aratchige Hendrick (affirmed): 14, son of Jas. AppuhamyLenama. About noon yesterday I was preparing the ground there(he shows spot) to plant some brinjals. I heard a cry, so I came run-ning. I saw a man, whose name I do not know, but whom I have seenbefore, and whom I can identify, stabbing Punohihamy with a knife.He held her hair and stabbed her on the chest. 'I then fell downunconscious (he here shows the spot). When I regained consciousnessI came to the spot and saw no one except Heenhsmy. Karonchihamycame at the same time as myself. At that time Appu Sinno had runaway. From where I was originally I could see Appu Sinno draggingthe woman (here he shows the spot). Accused held the deceased bythe haif. I saw the accused running to the spot. He had an umbrella(A) and a shawl on his shoulder. When I came I found this umbrella(A), comb (B), and sheath (C).
(Signed) S. D. Dhondy,
Police Magistrate.
Akbar, Acting S.-G. (with him Dias, C.C.), for the Crown.
De Zoysa and Mahadeva, for the accused.
Cur. adv. vult.
November 29, 1920. Shaw J.—
This is-a case stated under the provisions of section 355 (1) of theCriminal Procedure Code by the Chief Justice, sitting as Assize/Judge at Matara criminal sessions, raising two questions for theconsideration of this Court.
The accused has been convicted on an indictment charging himwith the murder of a. woman named Samaratungage Punchihamy,and has been sentenced to be hanged.
The first question is whether a plea of previous acquittal' undersection 331 of the Criminal Procedure Code, which was taken onbehalf of the accused at the trial, was a good one ? The secondis as to the admissibility of certain evidence that went before thejury at the trial, and its effect upon the trial should it be held to beadmissible.
It appears that, at the previous sessions of the Southern Circuitheld at Galle, the accused was charged and tried upon the sameindictment before Mr. Justice Schneider.
At the conclusion of the trial the jury retired to consider theirverdict, and on their return stated that they found the accusednot guilty by a majority of 5 to 2. The Judge did not approve ofthe verdict, and, under the provisions contained in section 248 (2)of the Criminal Procedure Code, he directed them to reconsidertheir verdict. When they again returned, the foreman stated that
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1920.
Shaw J.
The King v.Appu Sinno
they were divided in the proportion of 4 to 3. This was notsuch a majority as is required by the Code, the Judge accordinglydischarged them under the provisions of section 250.
The contention on behalf of the accused is that, as the jury ontheir second retirement were unable to return such a verdict ascould be accepted under the law, the verdict they were prepared togive after their first consideration must be received as the verdictto be entered in the case. I find myself quite unable to agree withthe contention. The provisions of section 248, which follows theEnglish procedure stated in The Queen v. Meany,1 is as follows:
“ If the Judge does not approve of the verdict returned by thejury, he may direct them to reconsider their verdict, and theverdict given after such consideration shall be deemed to be thetrue verdict.”
It appears to me that until the Judge has decided whether ornot to exercise his discretion to direct the jury to reconsider theirverdict, no final verdict can be given by the jury in the case.
The oni v “ true verdict ” they can give, if they are directed to re-consider their verdict, is the verdict given after such reconsideration.There is no direct authority either in the .English reports or our ownas to the effect of a disagreement after a reconsideration of averdict, bub it is inconceivable to me that the law can require averdict to be entered to which the jury after consideration maypossibly be opposed by a majority of 4 to 3.
In my opinion there was no true verdict returned at the firsttrial, arid the Judge was right in discharging the jury without averdict.
The plea of a previous conviction, therefore, in my opinion, fails.The second question for our consideration is one of some difficulty.At the trial before the Chief Justice the deposition of a witness,Hendrick, taken before the Police Magistrate, was read in evidence,under the provisions of section 33 of the Evidence Ordinance,after proof that the witness could not be found. The depositionwas also put in evidence at the previous trial before Mr. JusticeSchneider, and on neither occasion was it objected to by counselfor the accused. It was only after the trial was completed andsentence pronounced that it occurred to the Chief Justice that thedeposition might be inadmissible.
The deposition was that of a homeless boy, who at the time ofthe murder was lodging in the house of one of the witnesses forthe prosecution. It was made before the Magistrate on the morn-ing after the crime, when the accused was not present. After thedepositions of the boy Hendrick and the other witnesses were taken,the Magistrate issued a warrant for the arrest of the accused, buthe absconded, and was not produced before the Magistrate until
{1862) S2L.J. M. G. 24.
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after the lapse of some eight months. By this time Hendrick 1920#himself had disappeared, and he has not been traced since. The
consequence was that he was not recalled with the other witnesses '*
for cross-examination by the accused.v*
The deposition of this witness was, therefore, inadmissible undersection 33 of the Evidence Ordinance, which only makes the de-position of a witness admissible if he cannot be found in cases wherethe accused had the right and opportunity to cross-examine thewitness on his deposition. It was suggested on the argument ofthis case that the deposition might be admissible under section407 of the Criminal Procedure Code. That section provides forthe recording of evidence and the subsequent reception of thedeposition in evidence in cases where it is proved that an accusedhas absconded and that there is no immediate prospect of arrestinghim.
I do not think that that provision is applicable to the present case,as there was no evidence, at the time the deposition was taken,that the accused had absconded. Although his name was mentionedin the report to the Magistrate as the accused, no warrant for hisarrest appears to have been issued until after the depositions ofthe witnesses had been recorded.
In my opinion the deposition was not admissible in evidence, andshould not have been read to the jury. The more difficult questionthen arises whether the admission of this evidence necessarilyvitiates the trial, or whetherthe verdict can and should be supportedon the other evidence given, to which no objection can be taken.
Whether it can be so supported or hot appears to me to depend uponwhether the provision contained in section 167 of the EvidenceOrdinance applies to the consideration of a case stated after trialby jury. The provision is as follows —
“ 167. The improper admission or rejection of evidence shall notbe ground of itself for a new trial or reversal of any decisions inany case, if it shall appear to the Court before which such objectionis raised that, independently of the evidence ob j ected to and admitted,there was sufficient evidence to justify the decision, or that’, if therejected evidence had been recorded, it ought not to have varied thedecision.”
On the face of the section there appears to me to be nothing toprevent its application to a reference to the Supreme Court undersection 355 oi the Criminal Procedure Code after a trial by jury,and, indeed, it has been treated as so applying by this Court inR. v. Thegis1 and R. v> Pila.2 -In the latter case Lascelles C.J.,in his judgment at page 458 says: “ There can be no questionbut that this Court, under section 167 of the Evidence Ordinance,has power to uphold the conviction, if we are of opinion that theevidence improperly admitted did not affect the result of the trial.”
1 (1901) 5 N. L. 12. 107.2 (1912) 15 N. L. R. 453.
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1920.
Shaw J.
The King v.Appu Sinno
In India it has been held that the provision contained in thecorresponding section 167 of the Indian Evidence Act applies tb thereconsideration of trials by jury by the High Gourt, and that in aproper case a verdict should be upheld, notwithstanding the admissionof evidence that should not have been received. See Queen Empressv. Rarmhandra,1 Emperor v. Woman Shivram Damle,1 2 Makin v.Attorney-General of New South Wales,3 Wafadar Khan v. QueenEmpress,4 and other similar cases cited on behalf of the accusedturned upon the construction of similar provisions to those con-tained in section 425 of our Criminal' Procedure Code, and not uponprovisions similar to section 167 of the Evidence Ordinance.
Tjiese cases were considered in Queen Empress v. Rarmhandra{supra), and were held not to apply in India in consequence of theprovision in the Evidence Act.
In my opinion, therefore, section 167 of the Evidence Ordinanceapplies to the present case, and we have the power to uphold theverdict on the admissible evidence should we think the circumstanceswarrant it.
Although we have this power, I think this Court should be carefulnot to attempt to usurp the functions of a jury, and where improperevidence has been admitted that might with reasonable possibilityhave affected the minds of the jury, I should myself in all casesset aside the conviction and send the case for a re-trial, howeverstrong a conviction of guilt the other evidence might bring to mymind.
In the present case I consider that there is no reasonable possi-bility that the verdict of the jury was in any way influenced by thedeposition of the boy Hendrick. The only effect of his evidencewas that he saw some man, whose name he did not know, but whomhe could identify, stabbing the deceased woman. The only realimportance of his evidence is that he confirms the fact that theother two eyewitnesses came to the spot at the time of the murder.If the jury were not satisfied with the evidence of the eyewitnessesthat they had before them, it seems impossible that they could havebeen influenced by the deposition of a homeless vagrant boy whodid not appear in the witness box. The case stated by the ChiefJustice informs us that the decision really turned on the questionwhether the evidence against the accused was or was not entirelyfalse and suborned by the witness Digala Ralahamy. As the jurydisbelieved this contention, the additional, more or less irrelevant,deposition of the boy Hendrick could in no way have affected theirdecision.
The opinion of the Chief Justice, who is in a better position thanany one else to judge the effect of the evidence, is that he does notthink it possible that the jury were in any way swayed by it.
1(1895) I. L. R. 19 Bom. 749.
2(1903) 1. L. R. 27 Bom. 626.
2 (1894) A. O. 67.
4 (1895) I. L. R. 21 Cal. 955.
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la my opinion the inadmissible evidence that went to the jurydid not in any way affect the verdiot, and, acting under the pro-visions of section 167 of the Evidence Ordinance, we should notinterfere with the verdict arrived at.
I would, therefore, answer both the questions referred to us infavour of the Crown, and affirm the conviction and sentence.
1920.
Shaw J.
The King v.Appu Sinno
De Sampayo J.—I agree.
Affirmed.
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