DIAS, COMMISSIONER OF ASSIZE—The King v. Mudalihamy.
Present : Dias, Commissioner of Assize.THE KING v. MUDALIHAMY.
21—M. C. Ratozapura, 43,874.
Evidence Ordinance, s. 32 (1)—Meaning of “ circumstances of the transaction” —Statement of deceased before the cause of death has arisen■—Admissibility.
The statement admissible under section 32 (I) of the Evidence Ordi-nance may be made before the cause of death has arisen, or before thedeceased has any reason to anticipate being killed.
Pakala Narayana Stoami v. Emperor A.I.R. (1939) P.C. 47 followed.The King v. Amelia Perera (1927) 28 N.L.K. 481 not followed.
HIS was a statement of reasons given by the Commissioner of
JL Assize, Western Circuit, for admitting certain evidence tenderedby the prosecution and objected to by the defence.
K. S. Rajah, for the accused.
F. B. P. Jayasuriya, C.C., for the Crown.
March 29, 1946. Dias, Commissioner of Assize—-
At the close of the argument I decided to admit the evidence tenderedby the prosecution and objected to by the defence. I intimated thatI would give my reasons later.
The accused, W. K. Mudalihamy, is charged with committing themurder of one R. K. William Singho on March 30, 1945.
The case for the prosecution is that the accused and William Singhowere friends and that the former lived in the same estate lines with WilliamSingho and his mistress, Mary Nona. It is the case for the prosecutionthat on the day in question the accused went off to obtain bees’ honeyin the jungle. In his absence William Singho is alleged to have cometo his lines and after his midday meal left the place with some scraprubber and a box of matches.
When Mary Nona questioned him as to where he was going, WilliamSingho is alleged to have said “ Mudalihamy (the accused) wanted me togo and collect honey and I am going to meet him
William Singho has not been heard of since. Twelve days later anunrecognisable and decomposed body of a man was found wedged inbetween two rocks in the middle of a stream.
Mary Nona identified the body by certain tattoo marks and the doctorfound seven stab wounds and one incised wound on the body.
The question for decision is whether the statement of William Singhomade to Mary Nona is admissible under section 32. sub-section (1) of theCeylon Evidence Ordinance.
The decision in The King v. Arnolis Perera 1 is exactly in point. If thatdecision is followed the evidence is clearly inadmissible. When CrownCounsel opened the case, acting under this authority, I desired himnot to open to the Jury the alleged statement of William Singho.
1 (1927) 28 N. L. B. 481.
140 DIAS, COMMISSIONER OF ASSIZE—The King v. Mudalihamy.
Crown Counsel, however, has subsequently brought to my notice thedecision of the Privy Council in the case of Pakala Narayana Swami «„Emperor1.
Crown Counsel has argued that in the light of this decision the case ofThe King v. Amelia Perera (supra) can no longer be considered as abinding authority.
In the absence of the Jury the question has been argued and I amof opinion that the Privy Council judgment is in paint.
In the local case similar evidence was rejected on the ground thatsection 32 (1) of the Evidence Ordinance is limited to statements madeby a person after the event, which resulted in his death.
The Privy Council has dissented from this view. Lord Atkin indelivering judgment said :—
“ A variety of questions has been mooted in the Indian Courts asto the effect of this section. It has been suggested that the statementmust be made after the transaction has taken place, that the personmaking it must be at any rate near death, that the ‘ circumstances ’can only include the acts done when and where the death was caused.Their Lordships are of opinion that the natural meaning of the wordsused does not convey any of. these limitations. The statement may bemade before the cause of death has arisen, or before the deceased hasany reason to anticipate being killed. The circumstances must becircumstances of the transaction : general expressions indicating fearor suspicion whether of a particular individual or otherwise and notdirectly related to the occasion of the death will not be admissible.But statements made by the deceased that he was proceeding to thespot where he was in fact killed, or as to his reasons for so proceeding,or that he was going to meet a particular person, or that he had beeninvited by such person to meet him would each of them be circumstancesof the transaction, and would be so whether the person was unknown,or was not the .person accused. Such a statement might indeed beexculpatory of the person accused. ‘ Gircuinstances of the transaction’is a phrase no doubt that conveys some limitations. It is not as broadas the analogous use in ‘ circumstantial evidence ’ which includesevidence of all relevant facts. It is on the other hand narrawer than‘res gestae ’. Circumstances must have some proximate relation to theactual occurrence : though, for instance, in a case of prolonged poisoningthey may be related to dates at a considerable distance from the dateof the actual fatal dose. It will be observed that ‘ the circumstances rare of the transaction which resulted in the death of the declarant.It is not necessary that there should be a known transaction other thanthat the death of the declarant has ultimately been caused, for thecondition of the admissibility of the evidence is that ‘ the cause of(the declarant’s) death comes into question ’. In the present casethe cause of the deceased’s death comes into question. The transac-tion is one in which the deceased was murdered on March 21 or 22: andhis body was found in a trunk proved to be bought on behalf of theaccused. The statement made by the deceased on March 20 or 21,
A. I. R. (1939) P. C. 47 at 50.
WIJEV EW'AKDENE J.— Dinmukulathumma v. Vthumalcbbe.
that he was setting to tho place whoro the accused lived, and to meeta person, the wife of tho accused, who lived in tho accused’s houseappears clearly to be a statement as to some of the circumstances of thetransaction which resulted in his death. The statement was rightlyadmitted. ”
I decided to follow the Prrvy Council judgment and admitted thoevidence.