147-NLR-NLR-V-45-THE-KING-v.-HARAMANISA.pdf
532
HOWARD C. J.—The King v. Haramanisa.
[Court of Criminal Appeal.]
1949 Present: Howard C.J., Moseley S.P.J. and Wijeyewardene J.THE KING- v. HAHAMANISA.
3—M.C. Kurunegala, 12,250.
Evidence—-Chargeofmurder-—Circumstantialevidence—Erroneousstatement
of fact in charge to jury—Statement to Police Officer in course of investiga-tion—Oralevidence of statementinadmissible—Purpose for which the
statement is used—Criminal Procedure Code, s. 122(3), Evidence
Ordinance, s.155.
The accused was charged with murder and the evidence against theaccused was of a purely circumstantial character. The main circum-stancewasthe factthat fingerimpressionsof the accused were proved,
to have been discovered on a glass chimney found near the dead bodyof the deceased.
In hischarge to the jury the presidingJudge madeanerroneous
statement of fact regarding the circumstances in which the accusedtestified to his having tonched the glass chimney.
Held, that the accused had been prejudiced in his defence and that theconviction couldnot be sustained.
A statement madetoa PoliceOfficer inthe course of an investigation
under Chapter12 of the Criminal ProcedureCode by a person—which
expressionincludesan accused person—must be reducedto writing.
Oral evidence of such statement is inadmissible.
The investigation made by a Police Officer is not limited merely tothe examination of persons by the putting of questions. It includes thesearchforincriminatingevidenceand theexamination of the locus in
quo and the locality in the vicinity of the scene of the crime.
The writtenrecord of such a statementis-admissibleby virtue ol
section122(3) oftheCriminalProcedureCode to contradict a witness
after such witness has given evidence.
The writtenrecord of the statement ofawitness asformulated im
sub-section (3)is not substantive evidenceofthe factsstated therein,
but is available for impeaching the credit of a witness as laid down bysection 155 ofthe Evidence Ordinance-
Pail ure on the part of the presiding Judge to make it clear to the jurythat such evidence. is available only) for the purpose of impeaching thecredit of a witness amounts to non-direction.
A
PPEAL against a conviction by a judge and jury before tbe secondMidland Circuit 1944.
G. E, Chitty (witb him M. M. Kumardkulasingham), for applicant.
E. H. T. Gunasekara, G.C., for the Crown.
Cur. adv. uult.
October 30, 1944. Howard C.J.—
Tbe accused in this case appeals against his conviction on a charge ofmurder. The appeal is based on the following grounds: —
(a) That the accused was prejudiced in his defence by an erroneousstatement of fact in the learned Judge’s charge to the juryregarding the circumstances in which the accused testified to hishaving touched the exhabit P 5, a glass chimney found withcertain finger impressions of the accused;
HOWARD C.J.—The King v. Haramanisa.
633
That there was misreception of evidence in the proof by the. Inspector of Police of the statement made to him by the accused
under section 122 (3) of the Criminal Procedure Code;
That there was no direction in the charge that the statement
referred to in (b) was not original evidence against the accused.
Crown Counsel at the commencement of the hearing of this appealconceded that the charge did contain an erroneous statement of factand in these circumstances he could not support the conviction. Theevidence against the accused who was indicted with another person,who was acquitted, was of a purely circumstantial character. The maincircrynstance was the fact that finger impressions of the accused wereproved to have been discovered on a glass chimney found near the dead,body of the deceased, who was a Buddhist Priest. The appellant did notdeny that the finger impressions on the chimney were his, but in thewitness-box gave an explanation as to the circumstances in which hehandled the chimney. In his evidence-in-chief he stated as follows:^—
“ I went inside the temple, took a mat, spread it and placed thedead body on that mat. Then the body was raised with the mat andcarried out of the house. Besides that there was a chimney close to thedead body on the ground and I took it from where it was and kept itaside. It was about a foot away from where the dead body was lying.
I touched the chimney after the dead body was placed on that mat.
I held the head side of the deceased’s body in order to place it on themat. There was a lot of blood on that part of the body. I took thechimney and put it under the arm-chair. I took it from the placewhere it was lying and placed it on the ground and rolled it along on theground.”
In cross-examination he stated as follows: —
‘‘ This was at about 5 p.m. Some entered through the front doorand others through the kitchen door. I brought a mat from thetemple. It was in the temple. It was in front of the place where thedead body was lying. The body was lying with the head towards the-front door. The mat was found about 1-J fathoms away from the head.
It was in the open space in front. It was rolled up and put into acorner. The people there said that a mat was required to take thedead body out. Then I brought the mat and put the mat under thebody together with other people. The body was lifted up and placedon the mat. I spread the mat on the floor. Some people lifted thebody and placed it on the mat. Three or four people lifted the bodyand placed it on the mat. I too helped in doing so. I got hold of theregion of the head and neck. I saw blood a1! over the body. Theblood was clotted. There was liquid blood also. Near about theplace where there were injuries there was liquid blood. I did not putmy hand where the liquid blood was.”
And later in answer to questions put by the Court he stated—
“ To Court ; I said that when the robes were lifted out of placethe chimney stood revealed. As a result of the robes being there thechimney was almost covered.
HOWASD C.J.—The King v. Haramamsa.
534
The chimney was near about the middle of the body. There werepeople to the left of the dead body. They could have seen the chimney,if they looked carefully. 1 took the chimney.
To Court: I just rolled it. I did not take it like this and roll it.It was not upright. I did not get hold of the chimney into my handlike this. The chimney was like this and I rolled it down. I simplyrolled it down. I did not wait to see where it stopped. It rolledin the direction of that arm-chair. The other people who were theremust have seen me rolling it. It was after the body was placed on themat that I rolled it.”
With regard to this evidence, the learned Judge stated at pages 2.9-21
of the charge as follows;—
‘ Now remember the story he related from that point to CrownCounsel as well as to Counsel for the defence. He said that when heapproached the body of the priest in order to prepare to carry the bodyout for the purpose of the post-mortem examination he saw a mata little distance away from where the body of the priest lay. The matwas folded, and he says it was necessary to get a mat or somethinglike a mat in order to place the body of the priest upon, for the bodyhad to be carried out; and so he says he went and took this mat and laidit alongside the body of the priest, and that at that time he noticeda chimney just peeping from beneath the folds of the robe with whichthe priest’s body had been covered from head to toe, not literally,but the major part of the body had been covered. And be says—and be was repeatedly questioned on the point—thinking somebodymight tread on the chimney or kick it he used his fingers and rolled the-chimney along and it came to rest under the arm-chair you see on thephotograph.
You see the chimney was photographed by Inspector Weerasinghe.It was photographed on the 30th. Nobody else had noticed thischimney till the 30th. It was on the 29th morning that the priest’sbody was discovered, and it was on the 29th afternoon that the bodywas carried out for the post-mortem examination. Nobody hadnoticed the chimney under the arm-chair till the 30th of June whenthe fingerprint expert and photographer were looking for objects tosee if any fingerprints existed.
Now, gentlemen of the jury, if that was the correct version, theversion given by the accused of how he came to discover the chimneysomewhere under the robes and a part of it peeping out and that hethereupon moved the chimney and rolled it along like that till it cameto rest under the arm-chair, you will see that all that happened beforethe body was raised and placed on the mat. That was bis evidence.So that unless before he actually helped to raise the body and deposit iton the mat the first accused had gone and held the body for somereason or other—and he does not say he did that—there was no occasionfor his fingers to have got blood-stained before he touched the chimney.Thev would get blood-stained only if he had carried the corpse orhelped to carry the corpse, but according to him, it was only after hebad pushed the chimney along and made it reach that place under
HOWARD G.J.—The King v. Haram&niaa.
535
the arm-chair that he went on to help the others to carry the corpse andplace it on the mat. So that really if it were in that way he acted,there was no occasion for his fingers to get blood-stained in a way in;which he could communicate those blood-stains on to the chimney, be-cause he does not say that thereafter he meddled with the chimney at all.But supposing he has forgotten it, the only other way in which you canaccount for the blood-stained fingerprints found on the chimney isthat, although he does not say it, before the carrying of the body fromthe floor on to the mat, he had gone and held the body and so got hisfingerprints on to the chimney.”
It is, therefore, clear that the learned Judge told the jury that theaccused’s story was to the effect that he rolled the chimney before hebad held the body of the deceased and in these circumstances the bloodmust have been on his hauds before he touched the body. This was notwhat the accused had said either in examination-in-chief or in cross-examination. Having regard to this erroneous statement of fact inregard to what was the main piece of evidence in the case, we are ofopinion that it is impossible to support the conviction.
Although Counsel for the accused had succeeded in obtaining thesetting aside of the conviction on the first ground .put forward by him, weconceive it our duty, having regard to the uncertainty that exists withregard to the interpretation of section 122(3) of the Criminal ProcedureCode, to deal with grounds (b) and (c). In cross-examination by Counselfor the accused, Inspector Hole said that the latter made a statementto him voluntarily and said that he had a sword which he had throwninto the ela. Also that he did not say that he used that sword on thatparticular night or that he had been to the Temple that night. Inanswer to the Court the Inspector said that the accused said he had notgone to the Temple at all. At the end of his testimony the Inspectorin answer to questions put by the Court stated as follows: —
" This is a part of the statement to me by the 1st accused which wasrecorded by me. On the morning of the 29th at about 10 a.m. when Iwas ploughing a field 1 heard that the police had been informed. I did'not go to the Temple. I had a sword at home. Immediately afterthe murder I threw it into the ela for I feared that I could be un-necessarily implicated- I can point out where the sword is now. Iknow nothing about the murder.”
In his charge to the jury the learned Judge referred to the statement madeby the accused to the Inspector in the following passage: —
” Now there is not a single witness in regard to that, and there isadditional significance in the absence of evidence on that point whenyou remember the statement made by the first accused to InspectorHole, on the 12th of July, the day he was arrested, for he said toInspector Hole:* I heard about this when I was working in the field.
I did not want to go to the Temple. I did not go there at all Hedid not say that he went there in the afternoon, that he helped to carrythe corpse and things like that. That is not conclusive in itself, butthat is a point which you may take into account.”
536
HOWARD C.J.—The King t>. Haramantsa.
Mr. Chitty makes three points with regard to the reception of this evidenceand the manner in which it was treated. These points are as follows: —
It was a statement within the ambit of section 122 (3) of theCriminal Procedure Code and hence cannot be used otherwise than toprove that a witness made a different statement at a different time, orto refresh the memory of the person recording it.
The evidence with regard to the statement being only admissibleto impeach the credit of the accused, the learned Judge should havedirected the jury to the effect that such statement to the Inspectorwas not substantive evidence of the facts stated in such statement,but merely evidence impeaching the credit of the accused as a witness
• tendered under section 155 (c) of the Evidence Ordinance (Cap. ill).In the absence of such a direction Mr. Chitty maintains there wasnon-direction.
Parts of the statement made by the accused were not admissible.
With regard to (2) Mr. Chitty in support of his contention cited the caseof the King v Silva1 in which it was held that a statement which is madeby a witness to a Police Officer and is afterwards denied by the witnessat the trial, cannot be used as substantive evidence of the facts statedagainst the accused. Such a statement is only relevant for the purposeof impeaching the credit of the witness. In his judgment on pages195-196, Eisher C.J. stated as follows: —
“ As regards the statement to the Superintendent, it was admissibleonly for the purpose of impeaching the credit of the witness Mohammaduand, in view of the fact that his evidence amounted to a denial of allknowledge of the circumstances, it could not strengthen the case forthe prosecution. A statement such as this so put in evidence is notsubstantive evidence of any of the alleged facts stated in it against anaccused person; it is merely evidence of the unreliability of the personwho denies having made it. That being so, the learned Judge’sdirection to the jury that they should not act upon Mohammadu’sstatement unless they were corroborated by other evidence theycould accept was a misdirection. That direction amounts to a directionthat if the facts stated in the statement were corroborated by reliableevidence they could act upon the statement as substantive evidenceagainst the accused. They should have been directed that they werenot entitled to consider any of the contents of either of these statementsas evidence against the accused.”" .
The wording of section 162 of the Indian Criminal Procedure Code is onsimilar lines to section 122 of our Code. In Syamo Malta Patro v.Emperor2 and in Pakala Narayana Swami v. King-Emperor3 it washeld that “ a statement made by any person ” includes a statement madeby a person accused of the offence under investigation. Hence theaccused in this ease was in the same position as the witness Mohammeduin the King v. Silva {supra). The direction “ That is not conclusive initself” (that is to say the accused’s statement and alleged lack of frankness
2
* {1939) I A. E. R. 396.
1 30 N. L. R. 193.
{1932) A. I. R. Mad. 391.
HOWARD C.J.—The King u. Haramanisa.
537
about certain matters) “ but that is a point which you may take intoaccount ” did not make it clear that such evidence was only availablefor impeaching the credit of the accused. We think that Mr. Chitty’scontention that the learned Judge’s treatment of such evidence amountedto non-direction is strictly speaking correct.
With regard to the third point, Mr. Chitty maintains that parts of thestatement made by the accused to the Inspector as elicited by the learnedJudge were not admissible. The inadmissible parts were the allegedstatement “ He said that he had not gone to the Temple at all ” recordedon page 47 of the record and the following parts of the statement recorded
on page 48 : —
•
“ On the morning of the 29th at about 30 a.m. when I was ploughinga field I heard that the Kollure Temple had been burgled and that thepolice had been informed. I did not go to the Temple, immediatelyafter the murder. I know nothing about the murder.”
This evidence, it is asserted by Mr. Chitty, could only be given to contradictthe accused. It was, therefore, premature as the latter had not at thatstage given his evidence. At page 195 in the King v. Silva (supra),Fisher C.J. stated as follows: —
“ As regards this statement, in my opinion, the objection to itsadmission should have been upheld. If it was intended to applysection 157, it was admitted prematurely; a witness cannot be corro-borated in advance, and moreover the sequel showed that the statementwould not have been corroboration of his evidence. This statementwas therefore inadmissible under the circumstances.
The principle laid down by Fisher C.J. in our opinion applies. Theevidence of Inspector Dole with regard to the accused’s statement wasadmitted prematurely. A witness cannot be contradicted in advanceany more than he can be corroborated.
In regard to the first point made by Mr. Chitty as to the reception inevidence of the statement made by the accused to the Inspector,Mr. Gunasekera on behalf of the Crown contends—
That the statement is not within the ambit of section 122 (3) aait was not made in the course of any investigation under Chapter XII..of the Code.
Section 122 (3) only limits the use of the written record of astatement. Oral evidence of such a statement is not subject to suchrestrictions.
We are of opinion that there is no substance in (1). The investigationmade by a police officer or inquirer under this chapter covers a wide fieldand is not limited merely to the examination of persons by the puttingof questions. The investigation includes the search for incriminatingevidence and the examination of the locus in quo and the locality in thevicinity of the scene of the crime. A statement made by any person to apolice officer who was so engaged would, in our opinion, be made “ in thecourse of any investigation ”.
538HOWARD C.J.—The King v. Baramanisa.
Mr. Gunasekera’s second contention raises a more difficult problem.
Section 122 (3) is worded as follows: —
“ No statement made by any person to a police officer or an inquirerin tbe course of any investigation under this chapter shall be usedotherwise than to prove that a witness made a different statement at adifferent time, or to refresh the memory of the person recording it.But any criminal court may send for the statements recorded in a caseunder inquiry or trial in such court and may use such statements orinformation, not as evidence in the case, but to aid it in such inquiry■ or trial.,
Neither the accused nor his agents shall be entitled to call for such.statements, nor shall he or they be entitled to see them merely becausethey are referred to by the court; but if they are used by the Policeofficer or inquirer who made them to refresh his memory, or if thecourt uses them for the purpose of contradicting such police officeror inquirer, the provisions of the Evidence Ordinance, section 161 orsection 145, as the case may be, shall apply.
Nothing in this sub-section shall be deemed to apply to any statementfalling within the provisions of section 32 (1) of the Evidence Ordinance,or to prevent such statement being used as evidence in a charge undersection 180 of the Penal Code.”
The words “ No statement ” would, at first glance, seem to refer backto the words “ any statement ” in sub-section (1), that is to say thestatement or words used by the person orally examined which must byvirtue of sub-section (1) be reduced into writing by the police officer or•inquirer. “ No statement ” would therefore include both the oral state-ment of a witness and such oral statement reduced into writing. Theuse of the words ‘ ‘ to prove that a witness made a different statement at adifferent time ” also points to the same conclusion. On the other handthe words ” or to refresh the memory of the person recording it ” seems toindicate that ‘‘No statement ” refers only to the written record inasmuchas the memory cannot be refreshed by an oral statement. Again the lastsentence seems to imply that only the recorded or written statements.come within the purview of this sub-section. The sub-section bristleswith difficulties and is so difficult to interpret that, in our view, it is the duty-of the Legislature to re draft the section so as to make its meaning clear.We are, however, not devoid of authority in so far as the interpretationof the words to which I have invited attention is concerned. At page 425of the judgment of Bertram C.J. in the King v. PabilisL we find thefollowing passage: —
” A difficulty has, from time to time, arisen with regard to the words‘ to refresh the memory of the person recording it ’. These words havealways seemed to me to imply that an officer recording such a statementmay (where the law allows it, e.g., under section 157 of the EvidenceOrdinance) give oral evidence as to the terms of that statement, butmay not put in the written statement itself. He may only use that
1 25 N. L. R. 424.
HOWARD C. J.—The King v. Haramanisa.
539
statement to refresh his memory, though, of course, counsel for thedefence may call for a statement so used under section 161 of theEvidence Ordinance.”
The opinion of Bertram C.J. that the evidence of the oral statement isnot subject to the limitations imposed by section 122 (3) was an obiterdictum but was followed by Keuneman J. when sitting as Commissionerof Assize in The King v. Gabriel1. Nihill J. in The King v. de Silva1 2would also seem to have been of the same opinion. Various Indianjudgments on the interpretation of section 162 of the Indian CriminalProcedure Code support the view taken by the Courts in Ceylon that onlythe w»itten statement is excluded. This view was taken in Emperor v.Ranfaraddi3, Panhidra Nath Banerjee v. Emperor* and Muthuhumara-swami Ptllai v. King-Emperor5. In the first of these eases it was heldthat under section 162 of the Criminal Procedure Code a policeman canbe allowed to depose to what a witness had said to him in the course of theinvestigation for the purpose of corroborating the testimony of thatwitness before the trial Court. Although on the wording of section 122the question cannot be said to be free from doubt, we are of opinion thaton the various authorities I have cited oral evidence of a statement madeunder section 122 is not subject by virtue of sub-section (3) to the limita-tions imposed by that sub-section and can be given in evidence under-section 157 of the Evidence Ordinance (Cap. 11).
As pointed out by Mr. Chitty there is, however, a further impedimentto the reception of such oral evidence. This is imposed by section 91of the Evidence Ordinance which is as follows: —
‘‘ When the terms of a contract, or of a grant, or of any other dis-position of property have been reduced by or by consent of the parties-to the form of a document, and in all cases in which any matter is-required by law to be reduced to the form of a document, no evidenceshall be given in proof of the terms of such contract, grant, or other-disposition of property, or of such matter, except the document itself,or secondary evidence of its contents in cases in which secondaryevidence is admissible under the provisions hereinbefore contained.”
Section 91 of the Indian Evidence Act is similarly worded. But oralevidence of a statement made to a police officer by a person under-section 162 of the Indian Criminal Procedure Code is not- rendered in-admissible as the police officer is not required to take down such statement-in writing. • Under section 122 of the Ceylon Criminal Procedure Code thestatement must be reduced to writing. Hence section 91 of the Evidence-Ordinance would seem to be applicable and no evidence can be givenexcept the document itself. Indian decisions .support this view. Thusin Reg. v. Bai Rataro6 it was held that a confession of an accused person,taken by a Magistrate having no jurisdiction to convict or try him, isimperfect, if not signed by the accused person, and is inadmissible in-evidence, and oral evidence to prove such confession is by reason of section91 of the Evidence Act inadmissible also. This case was followed in
1 39 N. L. R. 38.
! 42 N. L. R. 57
3 A. I. R. 1914. Bombay 263.
I. Lr. R. 36 Cal. 281.
6 I. JL. R. 35 Mad. 397.
6 Bom. High Court Reps. 166.
540
TIOWARD C.J.—The King v. Haramanisa.
Reg. v. Shivya1 and Queen-Empress v. Viranz; Jai Narayan- Rai v. Queen-Empress3 and The Empress v. Mayadeb Gorsami4 are authorities to thesame effect. In the latter case the headnote was as follows: —
Failure to comply with the provisions of ss. 182 and 183 of Act Xof 1877 (Civil Procedure Code) in a judicial proceeding, is an informalitywhich renders the deposition of an accused inadmissible in evidenceon a charge of giving false evidence based on such deposition; andunder s. 91 of Act I of 1872 (Indian Evidence Act), no other evidenceof such deposition is admissible.”
In conclusion our findings may be summarized as follows: —
A statement made to a police officer or inquirer by any person,which expression includes a person accused in the course of any s investiga-tion under Chapter XII of the Criminal Procedure Code, must be reducedinto writing.
By reason of section 91 of the Evidence Ordinance only the writtenrecord of a statement within the ambit of (1) is admissible in evidence.Hence oral evidence of such a statement is inadmissible. The effect ofour finding on this point is to render the words “or to refresh the memoryof the person recording it” almost nugatory, since there would appearto be no circumstances in which oral evidence regarding the contents ofthe statement would be admissible. This is one of the matters to whichwe would invite the attention of the Legislature.
The written record of such a statement is admissible by virtue ofsection 122 (3) of Cap. 16 to contradict a witness after such witness hasgiven evidence.
The written record of the statement of a witness used as formulatedin (3), is not substantive evidence of the facts stated therein, but isavailable for impeaching the credit of such witness as laid down bysection 155 of the Evidence Ordinance.
If it had not been for the prohibition contained in section 91 of theEvidence Ordinance, oral evidence of a statement made under Chapter XIIof the Criminal Procedure Code might be tendered not only to contradicta witness, but also under the provisions of section 157 to corroborate thetestimony of such witness. Such oral testimony would again not besubstantive evidence of the facts contained therein, but merelycorroboratory.
Eor these reasons the appeal must be allowed and the conviction setaside.
Conviction set .aside.
(1876) 1 Bom. 219.(1886) 9 Mad. 225.
(1890) 17 Cal. 863.(1884) 6 Cal. 762.