WIJEYEWARDENE J.—The King v. Franciscu Appuhamy.
Present: Wijeyewardene J.
THE KING v. FRANCISCU APPUHAMY68—M. C. Chilaw, 12,594.
Statement made to a Magistrate under section 134 of the Criminal ProcedureCode—Confession inadmissible on ground of improper inducement,threat or force—Degree of proof—Evidence Ordinance, s. 24.
A confession made to a Magistrate under section 134 of the CriminalProcedure Code is inadmissible where it is made under circumstanceswhich render it irrelevant under section 24 of the Evidence Ordinance.
It is not necessary for a Court to be burnished with positive proof olthe high standard contemplated by section 3 of the Evidence Ordinancebefore it rejects as irrelevant under section 24' of that Ordinance theconfession on the ground of an improper inducement, threat or force.
The inquiry contemplated by section 134 of the Criminal ProcedureCode is the preliminary inquiry for which provision is made by section155 of the Criminal Procedure Code.
The King v. Ranhamy (.42 N.L.R. 221) followed.
Section 134 of the Criminal Procedure Code has not been impliedlylepealed by section 8 of Ordinance No. 13 of 1938 (sections 155-165 olthe Criminal Procedure Code).
rnHE accused in this case was charged with murder before Wijeye-X wardene J. and a Jury at the third Western Circuit.
A. H. C. de Silva (with him S. R. Wijayatilake), for the accused.
F. C. Loos, C.C., for the Crown.
Cur adv. vult.
October 13, 1941. Wijeyewardene J.—
The accused was charged with the murder of one gostinu Appuhamyon April 16, 1940. As the only evidence against the accused was aconfession made by him to the Magistrate under section 134 of theCriminal Procedure Code, I had to decide on the admissibility of thatconfession before the Crown Counsel opened his case. On an applicationmade by the Counsel for the defence, I directed the Jury to retire andcalled upon the Counsel for the defence to lead his evidence. The onlywitness called by him was the accused, while the prosecution called fourwitnesses—Baron, the village headman; Simm Perera, a police constable ;an Assistant Superintendent of Police ; and the Magistrate who recordedthe confession.
The accused’s evidence was to the following effect:—He was arrestedon April 24 about 2 p.m. by Simon Perera and Baron at. Danvilla estateand taken to the headman’s house at Kumarakatuwa. He was removedfrom the headman’s house about 2 aIm. on the 25th and was taken to theChilaw Police Station about 9 miles away. He was brought back to theheadman’s house the same day about noon. He was then taken to theDanvilla estate for a few hours and brought back to the headman’s housefrom where he was removed to the Chilaw Police Station on the 27thmorning. He was ultimately produced before the Magistrate at 4.40 p.m.on the 27th, and he made his confession to the Magistrate forty-fiveminutes later. He was assaulted both at the headman’s house and at thePolice Station. He added, that at the headman’s house, “ they (Baron
WIJEYEWARDENE J.—The King v. Franciscu Appuhamy.
and Simon Perera) ran needles into (his) finger nails. That was done bythe constable while the headman was holding (his) hands. They alsoput some chilly powder into (his) nostrils. That was done by theheadman ”.
The accused stated further that the confession he made was false buthe made it because he “ had no way of escape from the police ” and thatthe confession made by him “ was dictated by the constable ”. Heexplained that, at the request of Simon Perera, he did not tell theMagistrate about the treatment he received at the hands of Baron andSimon Perera, as Simon Perera promised to get him a “ pardon ”. Headded that he feared the “ consequences that might happen if (he) wentagainst Simon Perera ”.
The accused was unable to state with precision the time he was arrestedor the hours he spent at the headman’s house, on the estate and at thePolice Station after his arrest. He was quite definite however that hewas arrested sometime in the afternoon of April 24.
According to the confession, the accused went with two persons calledSandanam and John to the hut of the deceased and with their help killedthe deceased. Sandanam and John were arrested after the confessionwas made, but were discharged some weeks after, as the confession of theaccused could not be used against them and there was no other evidenceagainst them.
The confession starts by supplying the motive for the accused killingthe deceased. The accused says that the deceased was on terms ofintimacy with his wife. He then gives a reason for Sandanam and Jolmtaking part in the attack on the deceased. He suggests that Sandanamand John were displeased with the deceased in connection with a letteralleged to have been handed by the deceased to the accused and deliveredby him to the Superintendent of Nelunkulia estate, a few days before themurder. The accused then proceeds to describe the murder and the partplayed by him and Sandanam and John.
The headman giving evidence before me referred vaguely to a rumourhe heard in the village, about two days before the murder, that thedeceased was friendly with the accused’s “ pavula ” and “ pavul ”, aridsaid that he mentioned about this to the police before the accused wasarrested. The words “pavula” and “pavul” were naturally interpretedby the Interpreter as “ wife ” in the context in which the word was used.It was very noticeable, when the headman was giving evidence, that heavoided using the name of the accused’s wife and persisted in using theword “ pavula ” and sometimes the word “ pavul ”. This becamerather suspicious in view of the fact that the. evidence for the prosecutionin the Magistrate’s Court negatived the probability of such an intimacybetween the accused and the deceased’s wife and this made me questionthe headman in detail as to what he meant by “ pavula ” and “ pavul ”.He then came with the explanation that he meant “ family ” by theword “ pavula ” and all that he heard was that that there was a friendshipbetween the families of the accused and the deceased and that there wasno talk in the village that the deceased was on terms of intimacy with theaccused’s wife. I have no doubt, that the alleged intimacy between thedeceased’s wife and the accused mentioned in the confession was the
WIJEYEWARDENE J.—The King v. Franriscu Appuhamy.
invention of some policeman who knew that in criminal cases the Courtsusually look for a motive for the crime, and that the headman was notunwilling to lend his support to the policeman, but thought it wise tosecure a means of escape by using the ambiguous word pavula and pavul,in the event of his being confronted with the evidence led in the Magis-trate’s Court. Why did the accused relate the story about an intimacyin his confession when no such intimacy existed? Why was he anxiousto provide a non-existent motive for the crime alleged to have been com-mitted by him? Was it a voluntary act on his part? Was it not ratherthe statement of a man acting under the influence of some one inauthority ?
The reference to the letter itself is very suspicious. The constableSimon Perera had recorded in his diary some information he received onApril 20 at the headman’s house regarding a letter alleged to have beentaken by the accused to the “ conductor ” of Nelunkulia who, it is.admitted, calls himself the Superintendent of Nelunkulia. We thencome to the confession made on the 27th when this letter is made toserve the purpose of supplying a motive for Sandanam and John attackingthe deceased. Strangely enough, the evidence in the Magistrate’s Courton behalf of the Crown shows that the story about the letter was a myth.Why did the accused invent the story about a letter ? What was hisanxiety to substantiate in this manner a charge against Sandanam andJohn whom the police suspected, when according to the police, he wasmaking this confession, merely because he was impelled by strong feelingsof remorse and penitence ?
There is one other fact which appears to me to show that the confessionwas not a voluntary statement. The accused has maintained alwaysthat he was arrested on the 24th. The police denied that the arrest wason the 24th but admitted in the course of the proceedings, that theaccused was arrested in the evening of the 25th. The accused wasproduced before the Magistrate, as stated earlier by me, on the 27th atabout 4.40 p.m., nearly 48 hours. after his arrest. It must have beenwell within the knowledge of every policeman interested in the case, that,in detaining the accused in custody for that period without producinghim before the Magistrate, they were acting in direct violation of theprovisions of section 37 of the Criminal Procedure Code. Now in replyto a question put by the Magistrate before recording his confession theaccused stated:—“I was arrested at 6 p.m. on April 26, 1940, at Danvillaestate by constable Simon Perera. I was taken to the Police Stationlater ”. The police have admitted, as stated before, that the accused wasarrested on the 25th evening, kept in the headman’s house that night andtaken to Chilaw Police Station on the 26th at 4 p.m. Why did theaccused tell the Magistrate that he was arrested at 6 p.m. on the 26th andtaken to the Police Station, Chilaw ? That was not the truth and thatwas not the case of the accused. This fact suggests to my mind that theaccused was induced to make that statement to the Magistrate in orderto prevent the Magistrate from discovering that the police had disregardedthe provisions of section 37 of the Criminal Procedure Code.
It is admitted by the witnesses for the Crown, that the accused deniedall knowledge of the murder when questioned by the headman on April 17,
55(3WIJEYEWARDENE J.—The King v. Frqnciscu Appuhamy.
and on one or two subsequent occasions when questioned by the police.It is in evidence that the accused was working on his estate at the time ofhis arrest. The Crown wanted it to be believed that when the constableand the headman went on April 25, and the constable told the accusedthat he was suspected, the accused stepped forward and made a longstatement confessing his guilt, supplying a false motive for his offenceand a false motive for the other suspects joining in the offence. And yeta few days after making his confession to the Magistrate, the accusedretracted it. It is, to say the least, very extraordinary that the accusedshould have been suddenly seized with remorse about nine days afterthe murder and after a number of denials by him on previous occasions,and then make a confession of this nature and thus provide the policewith the only evidence to bring home to him the guilt of the crime at atime when the police were experiencing the greatest difficulty in findingout who committed the murder. It is not less extraordinary that thisfeeling of remorse should have deserted him with equal suddenness, a fewdays after the non-summary proceedings were started against him in theMagistrate’s Court.
Neither Baron nor Simon Perera who were called as witnesses impressedme favourably. They* no doubt, denied that they ill-treated the accusedor induced him in any way to make the confession. Of course, in amatter of this nature the headman or the constable would .not have beenunprepared to make such a denial even if they had behaved in the mannerstated by the accused.
I do not think it necessary to refer in detail to the unsatisfactory natureof the evidence called by the Crown. I am not satisfied at all with theexplanation given by Baron and Simon Perera for not taking the accusedto the Police Station on the 25th instead of detaining him in theheadman’s house.
It is also unfortunate that the Assistant Superintendent of Police didnot produce the accused before the Magistrate on the 26th but allowedthe accused to remain at the Police Station till the 27th. The AssistantSuperintendent of Police explained that he acted in that way in order togive the accused time to consider whether he should make that confession.I think that the Assistant Superintendent of Police would have acted moreprudently if he produced the accused before the Magistrate within thetime mentioned in section 37 of the Criminal Procedure Code and let theMagistrate decide as to the voluntary nature of the confession going tobe made to him.
In recording the confession the Magistrate has followed the rules laiddown by the Legal Secretary for the guidance of Magistrates. I thinkthe Magistrate should have allowed a much longer interval than forty-fiveminutes to elapse before he recorded the confession. It would have beenbetter if the Magistrate did not permit himself to be unduly fettered bythe rules mentioned by me and put questions besides those set out in therules and made a greater endeavour to elicit facts sufficient to enable himto. form a correct judgment as to the voluntary nature of the, confessionthe accused proposed to make.
It is not necessary for a Court to insist' on the high standard of proofcontemplated by section 3 of the Evidence Ordinance before it rejects
WIJEYJSWARDENE J.—The King v. Franciscu Appuhamy.
as irrelevant under section 24 of the Evidence Ordinance, a confession onthe ground of an improper inducement, threat or force. The use of theword “ appears ” in section 24 indicates a much lower standard of proofin a matter of this nature.
On a careful consideration of the evidence led before me and a closestudy of the confession itself, I ruled that the confession was inadmissible,as it appeared to me, for the reasons given by me, to have been madeunder circumstances which made it irrelevant under the provisions ofsection 24 of the Evidence Ordinance. 1 would refer briefly to certainother points taken by the Counsel for the accused against the admissibilityof the confession. The Magistrate had recorded the statements of twowitnesses some days before the accused appeared .before him and madehis confession. On those facts, the Counsel for the accused argued thatthe confession could not have been recorded by the Magistrate undersection 134 of the Criminal Procedure Code which provided for such arecord to be made only before the commencement of an inquiry or trial.I find that this identical question has been discussed in (The King v.Ranhamy ’) where it was held that the inquiry contemplated insection 134 was not any inquiry but the preliminary inquiry referred toin section 155 of the Criminal Procedure Code. If I may say so withrespect, I am in entire agreement with the view expressed by Soertsz J.in that case and I hold that it was competent for the Magistrate torecord the confession at the time he did.
A further point taken by the accused’s Counsel was that section 134 otthe Criminal Procedure Code had been impliedly abrogated by section 8of Ordinance No. 13 of 1938. Before that enactment, an accused personwho was brought before the Magistrate in nort-summary proceedingswas informed of the nature of the offence of which he was accusedand the Magistrate was then empowered to record any statementmade by the accused. The Code also provided for the use of such astatement against the accused at the trial. As a result of section8 of Ordinance No. 13 of 1938, any statement made by the accusedon the charge being read to him at the commencement of theinquiry would not, now, be recorded by the Magistrate nor would suchstatement be used in evidence against the accused. According to thenew procedure, the only statement of the accused in answer to the chargethat would be recorded by the Magistrate would be the statement, if any,made by him after the close of the case for the prosecution. The Counselfor the accused submitted that the change in the procedure showed thatthe Legislature discountenanced a Court acting on a statement made byan accused person immediately at the commencement of the preliminaryinquiry and that therefore it could not have been the intention of theLegislature that a Court should act on a statement made to a Magistrateespecially where the accused comes from police custody, even before thecommencement of the inquiry. While it may be conceded that there issome force in the observation of the learned Counsel, I am unable to holdthat section 134 of the Criminal Procedure Code has been impliedlyrepealed by section 8 of Ordinance No. 13 of 1938.
■ 42 .V. I.. B. 221.
THE KING v. FRANCISCU APPUHAMY