The King v. Karthigeeu.
[Cottkt of Crimen-ax. Appeal.]
1946 Present: Cannon J. (President), Jayetileke and Canekeratne JJ.THE KING v. KARTHIGESU.
14—M. C. Chavakachcheri, 22,852.
Evidence—First information to Police—Must not be based on hearsay—Informant must be called as witness—Evidence Ordinance, s. 157—Criminal Procedure Code, s. 121—Court of Criminal Appeal Ordinance,proviso to 8. 5 (1).
The rule for the admissibility, under section 157 of the EvidenceOrdinance, of first informations given under section 121 of the CriminalProcedure Code may be said to be this : first of all, the informationmust not be based on hearsay, unless the hearsay matter is relevant toexplain conduct ; secondly, the informant must be called as a -witness,unless the evidence is tendered under section 32 of the EvidenceOrdinance.
The proviso to section 5 (1) of the Court of Criminal Appeal Ordinance,that the Court of Criminal Appeal may dismiss an appeal if theyconsider that no substantial miscarriage of justice has actually occurred,assumes a case where a reasonable jury, after being properly directed,would, on the evidence properly admissible, without doubt, convict.
PPEAL, with application for leave to appeal, from a convictionby a Judge and Jury.
H. W. Thambiah (with him M. M. Kumarakulasingham), for theaccused, appellant.
T. iS. Fernando, C.C., for the Crown.
CANNON J.—The King v. Karthigeau.
April 10, 1946. Cannon J.—
The appellant was convicted of voluntarily causing grievous hurt toone N. Kandiah by shooting him in the thigh with a shot gun. Themain question for this Court to decide is whether certain evidence wasof a hearsay nature and prejudicial to the appellant.
The questioned evidence consists of the information given by oneV. Kandiah to the headman. This was as follows :—
“ S. Velan told me and Vairamuthu that Kandiah told him thatwhile Kandiah of Allalai went, a short while ago, to his tobacco gardenfor watching, E. Karthigesu alias Chelliah of Allalai who was one ofthose in the said garden breaking the leaves of tobacco plants shot atKandiah on his thigh. I came here because Vairamuthu asked meto fetch you. I did not go to the spot and come here. I know nothingmore ”
The effect of this statement is that the informant himself knows nothingabout the shooting but that Kandiah, the injured man, told S. Velanand Vairamuthu that the accused shot him. Further, the informantdepends for this information on S. Velan, not on Kandiah, the injuredman. It is what has been termed “ double hearsay ”
The Crown, having elicited this hearsay evidence from the vidane,then proceeded to call the informant V. Kandiah to say that he hadconveyed this hearsay information to the headman. In our opinion,this information was not admissible nor was the evidence of the informant.The rule for the admissibility of what have become known as “ FirstComplaints ”, that is to say, first informations, given under section 121of the Criminal Procedure Code, may be said to be this : First of all,the information must not be based on hearsay, unless the hearsay matteris relevant to explain conduct; secondly, the informant must be called asa witness. I am referring to the evidence as being admissible undersection 157 of the Evidence Ordinance. The second condition whichI have mentioned could not be complied with if the evidence weretendered under section 32 of the Evidence Ordinance. It is clear thatthe information in this case does not comply with the first of theseconditions. The question we have to consider then is whether the ad-mission of this evidence prejudiced the trial of the accused. In orderto do so, it is necessary to examine what happened at the trial.
For the accused, it is pointed out that the shooting took place at night,and that the identity was said to have been by the aid of an electrictorch ; and, further, that the presiding Judge did not direct the Juryon the inadmissibility of this information. Moreover, it was pointed outthat no statement by either the injured man or another witness namedParamu, who purported to be an eye-witness, was taken on the day ofthe shooting. It was, therefore, contended that when the Jury weredeciding whether or not they could accept the evidence of the injuredman and Paramu, they might have been influenced by the evidence that,according to the inadmissible information, the injured man had toldVelan that the accused was the man who shot him. On the other hand,
The King v. Arxyaratna.
the shooting by the accused was deposed to by two eye-witnesses,namely, the injured man and Para/nu, and the medical evidence showedthat the shooting must have taken place at close range within a fewyards—within 6 to 10 yards. There was also evidence that one Muttiahhad seen accused with a gun the same evening. Furthermore, noevidence was called by the defence to contradict this evidence which wasgiven by the prosecution ; and, further, although the Judge did notdirect the Jury on the matter, he did not suggest that the offendingpassage in any way corroborated the evidence of the injured man ; infact, he did not mention the passage at all. Ought this Court, then, toallow the appeal 1
By the proviso to section 5 of the Court of Criminal Appeal Ordinance,this Court may dismiss this appeal if they consider that no substantialmiscarriage of justice has actually occurred in convicting the accused,and the proviso assumes a situation where a reasonable Jury, after beingproperly directed, would, on the evidence properly admissible, withoutdoubt, convict. We feel that that is an assumption that may, havingregard to the course the trial took, be safely made in the present case.In point are the cases Rex v. Haddy1 and Stirland v. The Director of PublicProsecutions2. The appeal is, therefore, dismissed and the applicationfor leave to appeal on the facts refused.