008-NLR-NLR-V-21-THE-KING-v.-MUDIANSE-et-al.pdf
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1M8.[Full Bench.]
Present: Ennis, Shaw, and De Sampayo JJ.
THE KING v. MUDIANSE et al.
P.C. Kandy, 17,348.
Accused arrested on suspicion — Murder — Statement of accused taken onoath — Statutory statement under s. 165, Criminal ProcedureCode — Statement of accused read over to him and admitted to becorrect — Statement admissible — Criminal Procedure Code, ss.134, m, and 166.
The statement ot anaccused person (arrested,onsuspicion of
having committed an indictable offence) taken on oath as that of awitness is not in accordance with the provisions of sections 134 and302 of the Criminal Procedure Code, and is inadmissible againstthe accused at the trial.
An accused whosestatement was so recordedsubsequently
made a statement, when addressed under section 155 of the CriminalProcedure Code, as follows:“ Yesterday I made a full statement
to the Magistrate, that is the statement I wish to make now. ” TheMagistrate then had the statement previously recorded read tothe accused, and madethe further endorsementthatthe accused
admitted it to be correct.
Held, that aB the first statement had become incorporated withthe statutory statementunder section155, itwasnot merely
admissible, but must be put in evidence at the trial.
I’J'HE facts appear from the judgment.
Brito Muttunayagam, for the accused.—An accused was incapableof giving evidence on oath before the Evidence Ordinance of 1895.Section 120 (4) made him competent, but it was an inroad on thecommon law rule. ' It must, therefore, be construed strictly (1 Bal.44). The Police Magistrate intended to act under section 134,Criminal Procedure Code, which cannot be said to come under section120 (4) of the Evidence Ordinance. The Police Magistrate, therefore, -had no power to administer an oath before taking down the confession,and so the confession is inadmissible.
Section 155, Criminal Procedure, Code, requires that the accusedmust be informed of the nature of the charge, and warned, asspecifically provided by the section, before he can be asked to makea statement. The confession having been made before the abovepreliminaries were gone through, cannot claim admissibility underthis section.—The Imbuldeniya Double Murder Case (Ceylonesenewspaper, December 12, 1914).
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The fact that the accused stood by his confession when .questioned ^under section 155, Criminal Procedure Code, does not make theTheKingw.
(otherwise inadmissible) confession admissible (9 Mad. 224). If MwHanttthat fact makes it admissible, all inadmissible confessions would bemade admissible by getting the accused to assent before a PoliceMagistrate.
Section 155, Criminal Procedure Code, refers only to “ anystatement made by the accused ” at the time, and not to anystatement referred to by him.
Garvin, S.-G., for the Crown.—The fact that the accused wasaffirmed does not compel him to answer Questions if they tend toincriminate him. If the accused goes to a Police Magistrate andmakes a confession, there is nothing to prevent the Police Magistratebeing called to prove the confession. If the Magistrate has recordedthat confession, the record may be proved, as the record is the bestevidence of it (see Evidence Ordinance,' seotion 91). Section 424 ofthe Criminal Procedure Code provides that, if the provisions of theCode have not been fully complied with by thb Police Magistrate,the Court may take evidence that such accused duly gave theevidence, or statement recorded.
Counsel referred to King v. Cadramen.
The statement as recorded by the Magistrate is in any eventadmissible, as the accused admitted the statement to be correct whenit was read over to him. The accused himself said that he hadmade a full statement, and that he had nothing to add. TheMagistrate thereupon read the statement to him, and he admittedthat it was correctly recorded.
[De Sampayo J.—If accused said “ I made a statement to PunchiBanda, and that is right,” can you call Banda to supplementthe statement?]
That is not the case here.
[De Sampayo J. referred to 20 N. L. B. 65.]
Cur. adv. vult.
February 22, 1918. Shaw J.—
This is a point reserved for the consideration of the Supreme Courtby my Brother Ennis when presiding as Sessions Judge at KandyCriminal Sessions.
On the morning of August 28, 1917, the body of one Idroos LebbeMarikar was found in the Mahaweli-ganga at Talwatta, with injuriesupon it that appeared to indicate that the man had been murdered. .
On August 30 the Police Inspector, who was engaged in inquiringinto the case, arrested one Mudianse and another' man on suspicion,and brought them before the Assistant Police Magistrate to havetheir statements recorded.
The Magistrate then affirmed Mudianse and took down hisevidence, as in the case of an ordinary witness, and the evidence was
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1018.
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The King «.Itudianae
signed by Mudianse and endorsed by the Magistrate: “ Bead over tothe witness, Mudianse, and explained in Sinhalese, by me, and he puthis mark in my presence.
Soon after he had so taken Mudianse’s evidence, it appeared tohave occurred to the Magistrate that, instead of affirming the man .and taking his evidence, he should have recorded his statement asthat of an accused under section 184 of the Criminal ProcedureCode. He accordingly, at 2 a.m. of August 31, – made a furtherendorsement at the foot of the evidence: “ Before taking this state*ment, after this man told me that he wished to tell the Magistratewhat he knew, I said that I was prepared to hear anything he hadto say. I believe that statement was voluntarily made, and I certifythat it is an accurate one. He admitted its accuracy.”
There can be no doubt from the evidence of the Police Inspectorthat at the time Mudianse’s evidence was taken, although he hadnot been formally charged before the Magistrate, he was an accusedperson, and as such was incompetent as a witness at the magisterialinquiry. The statement having been taken on oath as that of awitness, it was not in accordance with the provisions of sections 134and 302 of the Criminal Procedure Code, and therefore would, hadnothing further taken place, have been inadmissible against theaccused at the trial.
In the afternoon of August 31 the Magistrate resumed his inquiry,and Mudianse' was.formally charged with the crime and dulyaddressed by the Magistrate, according to the provisions of section155 of the Code. He then stated: “ Yesterday I made a full state-ment to the Police Magistrate at his bungalow, and that is thestatement I wish to make now. I wish to state that statement isaccurate. I have nothing further to add.” The Magistrate thenhad the statement previously recorded read to the accused, andmade the further endorsement to it; “Bead oyer and inter-preted to the accused in open Court, and admitted by the accusedto be correct, ” “and signed and dated the statement “August31, 1917, 4.30 p.m.”. He also endorsed the statutory statementmade under section 155:“ Statement referred to is herewith
attached.”
At the trial the counsel for the prosecution proposed to open tothe jury and to read in evidence the two statements. This wasobjected to by the counsel on behalf of the accused, and the Judgereserved the question of the admissibility of the evidence for theopinion of this Court. At the trial it did not transpire that theprevious statement had been read over to the accused at the' time hemade the statement under section 155, which only became appar-ent when tire previous statement was referred to at the presenthearing, and this fact differentiates the case from The ImbuldeniyaDouble Murder Case, reported in the Ceylonese newspaper ofDecember 12, 1914, cited at the sessions.
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I am of opinion that the statements are admissible in evidence.Whether the mere reference in the statutory statement of anaccused to a previous inadmissible statement would render evidenceof the contents of such statement admissible may be open to somedoubt, but in the present case the previous statement was againread over to the accused and identified by him as being the statementhe wished to make under section 155 of the Code, and it was attachedby the Magistrate to that statement. The effect of what occurredappears to me to be the same as if the accused had himself repeatedthe words of the previous statement and the Magistrate had writtenthem down afresh.
If**-
SHAWtJ.
TheKipg/p.
Mudiape*
The previous statement has become incorporated with the statu-tory statement under section 155, and is, therefore, not merelyadmissible, but must be put in at the trial under the privisions ofsection 233 of the Code.
Ennis J.—I agree.De Sampayo J.—
For the reasons given in the judgement of my Brother Shaw, Ialso think that the statement recorded by the Police Magistrateon August 30, 1917, is admissible as an integral part of the statementmade by the accused under section 155 during the inquiry.*