The King v. John Petris.
[Court of Criminal Appeal]
Present: Mosley S.P.J., Hearne and Cannon JJ.THE KING v. JOHN PEIRIS.
80—M. C. Kalutara, 44,433.
Statement to Police Officer—Charge of theft—Investigation made in consequenceof statement—Statement not made in course of investigation—Cause ofdeath—Criminal Procedure Code, s. 122 (3)—Evidence Ordinance, s. 32(.11.
On information given to the Police that £ man engaged in stealingnuts had fallen from a tree a Police Constable was sent to investigatethe facts of the case. According to the Constable he found a manlying on the ground with fractured limbs and other injuries from whichhe died subsequently.
He questioned the man who made a statement to him. There was noreference in the statement to the charge of theft but only a complaintagainst the accused.
In proceedings against the accused in which the cause of injuries wasIn question, it was sought to put in evidence the statement made tothe Police Constable.
Held, that the statement was admissible under section 32 (1) of theEvidence Ordinance as a statement byl the deceased as to the cause of deathor as to the circumstances of the transaction which resulted in his death.
Held, further, that it was not a statement made to the Police in thecourse of investigation into an offence within the meaning of section122 (3) of the Criminal Procedure Code
PPEAL from a conviction before a Judge and jury at the 3rd,
Western Circuit held at Kalutara. The facts are stated in the
H. V. Perera, K.C. (with him 17. A. Jayasundera and B. Jayasuriya),for the first accused, appellant.—P 6 was improperly admitted at thetrial for the purpose of corroborating the evidence given by the deceasedbefore the Magistrate. It was a statement made by the deceased to thePolice in the course of an inquiry which was commenced as the result of acomplaint made by the first accused under chapter 12 of the CriminalProcedure Code. It would be admissible' under section 32 (1) of theEvidence Ordinance but for the overriding prohibition under section122 (3) of the Criminal Procedure Code as reproduced in Cap. 16 of the1938 edition of the Legislative Enactments. There is a fundamentaldifference between section 122 (3) as it now is and as it was formerly.The proviso at present attached to sub-section (4> was formerly applicableto sub-section (3) also. Under section 10 (3) of Cap. 1 of the LegislativeEnactments, as amended by Ordinance No. 16 of 1939, the presentRevised Edition is the sole authentic Statute-Book of Ceylon. Theaccused was materially prejudiced by the admission of P 6 and thecomments made upon it by the Judge.
The trial Judge, by directing that it was obligatory on the accusedto prove the truth of every defence set up, placed too heavy a burdenon the defence.
MOSELEY J.—The King v. John Peiris.
E. H. T. Gunasekera, C.C., for the Crown.—P 6 was admissible asevidence. If section' 122 of the Criminal Procedure Code (Cap. 16)is read with section 10 (3) of Cap. 1, it cannot be said that the figure 4appearing in the former and the bracket enclosing it are part of “ thelegislative enactments” of Ceylon. Section 6 (1) • of Cap. 1 limited thepowers conferred on the Commissioner by section 3 (8). The Commis-sioner’s act of subdividing sub-section (3) of section 122 of the CriminalProcedure Code as it stood before the date of the Revised Edition, wasnot validated by the proclamation under section 10 of Cap. 1. InFernando v. Rex' the question whether the proclamation under section 10could validate an act done by the Commissioner contrary to section 6 (1)does not appear to have been considered. A Malayan case reported inVol. 6 of the Malayan Law Journal, p. 9, may be cited in appellant’sfavour, but it is submitted that it was wrongly decided. The provisoattached to sub-section (4) of section 122 should be interpreted as appli-cable to sub-section (3) also for, otherwise, the reference to section 180of the Penal Code will have no meaning—Maxwell on Interpretationof Statutes (7th ed.), p. 198; The Duke of Buccleuch R. v. WilcockR. v. Strahan
P 6 was let in with the consent of the defending Counsel. It is notopen to the appellant to take objection to it now in appeal—T. Austinand J. B. Davies ". Sanders
Section 122 is a part of chapter 12 of the Criminal Procedure Code.That chapter deals with investigations into reports of cognizable offences.The information given by the first accused to the Police was, in point offact, about an accident. Section 122 (3) of Cap. 16 is therefore inapplic-able, and P 6 would clearly be admissible under section 32 (1) of theEvidence Ordinance.
H. V. Perera, K.C., in reply.—It was accepted in the Assize Courtthat the statement (P 6) fell under section 122 of the Criminal ProcedureCode. It is tod late now to seek to place it under a different section.
Whatever is not evidence cannot be made evidence by means ofconsent of accused—The King v. Pila et al. The King v. Don William ",R. v. A. T. Ellis", Mukerji on Trial by Jury, p. 296.
Crtr. adv. vult.
November 13, 1940. Moseley J.—
The appellant was convicted on September 30 of the followingoffences : —
being a member of an unlawful assembly; and
causing grievous hurt on provocation.
He appeals against the convictions on questions of law. He also appliesfor leave to appeal on grounds involving questions of fact. In regardto the application we are unable to say that the verdict of the jury isunreasonable or that it cannot be supported having regard to theevidence. The application for leave to appeal on the facts is thereforerefused.
1 (1939) 16 O. L. IP. 13.
L. R. 15 P. D. 86 at p. 96.
8 (1845) 7 Q. B. 317 at p. 338.
(1872) L. R. 7 Q. B.-465.
• 5 Cr. App. R. 41
12 Cr. App. R. 171 at p. 174.
* 14 Cr. App. R. 10.
(1912) 15 N. L. R. 453 al p. 465.« (1920) 2 C. L. Rec. 192.
MOSELEY J.—The King v. John Peiris.
Two of the points of law raised were not seriously argued and it is notnecessary to refer to them further than to give expression to our opinionthat they were without substance. Of the remaining grounds it will bemore convenient to deal first with that which appears last ip the state-ment of the appellant and was so dealt with by his counsel. It is acomplaint that in the course of his summing-up the learned trial Judgemade use of the following words : —
• Right at the outset of the case there is one question that confrontsyou, which you must dispose of. It is perfectly true that the defenceneed not have opened their mouths. They could have said: “ Letthe Crown prove its case ”. But if they do open their mouths, andif, as Crown Counsel suggested, a number of false hares were started,well, they will have to take the consequences of having started thefalse hares. They will have to prove that they are not falsetheories. ”
Counsel for the appellant contended that these words are tantamountto a direction that the jury should reject anything put forward by thedefence unless it was proved not to be false, and that thereby too heavyan onus was placed on thg defence. That contention might well havesome force if the offending passage were the only direction given to thejury on the subject of burden of proof. But even earlier in his summing-up the learned Judge had directed the jury on the presumption ofinnocence which attaches to an accused person and the doubt of whichhe must have the benefit. Shortly after giving utterance to the wordscomplained of the Judge referred to the theory of accident which hadbeen suggested by the defence. He said : “You must clear the groundof that question, for if you are to think that there is any evidence thatthe man fell, then of course he could not have been assaulted and weneed go no further. ” The words, with those which follow, appear toamount to an invitation to acquit unless the Crown had proved its case.Again, towards the close of his charge the jury were told : “ The questionis, have the Crown proved who caused tlie injury ? ” and the Judge inhis final words reminded the jury that the accused must get'the benefitof the doubt.
We are of opinion that, taken as a whole, the direction as to the burdenof proof was not unfair to the accused.
The remaining ground of appeal, which was strenuously argued, is asfollows : —
“ The inquiry of the Police having commenced on the first informa-tion laid with the Police by the first accused, the statement madethereafter by the deceased at the spot to Police Constable Sirisenabecame a statement made in the courge of the inquiry and wasimproperly admitted at the trial and marked P 6 for the purpose of"corroborating the evidence given by the deceased before theMagistrate. ”
Counsel for the appellant relied upon the provisions of section 122 ofthe Criminal Procedure Code as it appears in Cap. 16 of the LegislativeEnactments of Ceylon, and particularly upon sub-sections (3) and (4)thereof. In the Code as enacted in 1898 (Ordinance No. 15 of 1898)
MOSELEY J.—The King v. John Peiris.
the present sub-sections (3) and (4) appeared in one sub-section numbered
. At the end of that sub-section was a proviso as follows: —
“ Nothing in this sub-section shall be deemed to apply to anystatement falling within the provisions of section 32 (1) of “ The CeylonEvidence Ordinance, 1895, ” or to prevent such statement being usedas evidence in a charge under section 180 of the Ceylon Penal Code. ”The Commissioner, to whom was entrusted the task of preparing therevised edition, presumably purporting to act in the exercise of powerconferred upon him by section 3 (8) of Ordinance No. 19 of 1937 (nowCap. 1 of the Laws) divided the sub-section as indicated above, with theresult that the proviso appears to apply only to sub-section (4). Counselfor the appellant argued that, this being so, the statement P 6 wasinadmissible since it was not sought to use it for either of the purposesmentioned in sub-section (3). He conceded that it was a statementfalling within the provisions of section 32 (1) of the Evidence Ordinance,but contended that it is also a statement made by a person to a Policeofficer in the course of an investigation under Chapter XII. of the Code,and that the proviso to sub-section (4), does not effect the bar toadmissibility imposed by sub-section (3).
In our opinion it is unnecessary to discuss the majority of the argu-ments, which took a wide range, advanced by both counsel as to theeffect of the revised version of the section and the failure of counsel forthe accused at the trial to object to the admission of the document. Itdoes not seem to us that the document comes within the ambit of section122. The objection to its admission in evidence is based upon the footingthat it is a statement made to a Police officer in the course of an investiga-tion, that is to say, that an investigation into an offence was on footin the course of which the statement recorded in P 6 was' made to aPolice officer. It seems to have been assumed that the informationwhich the appellant, by his statement recorded in-a document markedD 3, conveyed to the Police, was the information which prompted themto commence an investigation into the charge in this case in accordancewith the provisions of section 121 of the Code.
Crown Counsel contended that D 3 does not constitute an informationrelating to the commission of a cognizable offence since it purportsmerely to be the report of an accident, namely the alleged fall of thedeceased man from a coconut palm. It does, however, as counsel forthe appellant pointed out, contain a vague suggestion that the deceasedwas engaged in stealing nuts, which is of course a cognizable offence.While there is a strong inference that the police constable proceededto the scene to investigate a case of a fall from a coconut palm, it may beassumed for the purposes of this appeal that the document D 3 doescontain information relating to a cognizable offence and that uponreceipt of the information a constable was despatched “ to the spotto investigate the facts and circumstances of the case, ‘that is, the allega-tion of theft ’ and to take such measures as may be necessary for thediscovery and arrest of the offender ” as provided by section 121 ('2).According to the constable’s evidence, he found the deceased on theground with fractured limbs and other injuries. He ' questioned the
DE KRETSER J.—Meniki v. Siyathuwa.
deceased as to what had happened and recorded his statement P 6then and there. It seems to us that, even assuming that the constable’smission was to investigate a charge of theft, his questioning of thedeceased must have been prompted by the condition in which he foundhim and that, for the time being at least, the investigation into thealleged theft was put aside. The document P 6 contains no referenceto a charge of theft and begins with a complaint against the secondaccused and the appellant. The statement then becomes nothing morethan a statement by the deceased as to the cause of his death or as to thecircumstances of the transaction which resulted in his death and as suchis admissible under section 32(1) of the Evidence Ordinance. It
constitutes the information upon which the Police began their investiga-tion into a charge in this case. Since we are of opinion that it is nota statement made to a Police officer in the course of an investigation ofthat charge, the provisions of section 122 (3) of the Criminal Procedure Codedo not affect its admissibility. It is unnecessary therefore to considerthe effect, if any, on sub-section (3) of the proviso to sub-section (4).
It is observed, that when Crown Counsel sought at the trial, to have thedocument read in evidence he invoked the aid of section 32 of theEvidence Ordinance and it is only in appeal that it is suggested that itcomes within the purview of section 122 of the Code. Once the documentis excluded from the operation of the latter there can be no objectionto its admission in evidence. We therefore hold that it was properly
The appeal is dismissed.
THE KING v. JOHN PEIRIS