119-NLR-NLR-V-44-THE-KING-v.-PETER-PERERA.pdf
The King v. Peter Perera.
481
[Court of Criminal Appeal.]
1943Present: Hearae, Keuneman and Jayetileke JJ.
THE KING v. PETER PERERA.
5—M. C. Kalutara, 17£74.
Evidence—Answers to questions put by Superintendent of Police—Subsequentcriminal charge against witness—Admissibility of evidence—Answernot given under compulsion—Evidence Ordinance, s. 132 (3).
Where questions are put to a witness by a Superintendent of BAlicein the course of an inquiry, and where the evidence given by the witnessis led against him in a subsequent criminal proceeding,—
Held that the protection afforded by section 132 (3) of the EvidenceOrdinance arises only when it appears that a Court makes a witnessunderstand impliedly or explicitly that he has no option but to answer,in other words, when he is constrained to answer.
The King v. Weerasinghe (8 C. L. Rec. 36) distinguished.
A
PPEAL from a conviction by a JudgeCircuit.
and Jury before the Western
N. Nadarajah, K.C. (with him B. Jayasooriya and H. Wanigatunge),for the accused, appellant.—The conviction in this case is based entirelyon circumstantial evidence. On the facts there was misdirection andnon-direction, in the summing-up, in regard to various material points.A judge in summing-up is bound to put every defence, however weak,before the jury—R. v. Dinnick Where a charge depends uponcircumstantial evidence, it ought not only to be consistent with theprisoner’s guilt, but inconsistent with any other rational conclusion,and it is a misdirection to fail to point out to the jury that an alternativeinnocent interpretation may be put on the proved facts—Hodge’s Case ’;Emperor v. Browning’; R. v. V assileva ‘; Taylor on Evidence, Vo l. I.,paragraph 68. On the evidence the finding is reasonably possible thatthe deceased was shot by a person other than the appellant.
At one stage of the preliminary inquiry it was one Siyaneris and notthe appellant who was charged with the commission of the offence.The Magistrate who conducted the inquiry admits in his evidence thateven at that stage he suspected the appellant when the latter gaveevidence as a witness. The answers to certain incriminating questionsput to the appellant when he was in the position of a witness have beenimproperly admitted as evidence in the present case (vide section 132 (2)of the Evidence Ordinance (Cap. 11) ). It is not clear whether it wasthe Magistrate or the police officer who put those questions. Even ifthe police officer put the questions he was only doing so on behalf of theMagistrate for, according to section 392 of the Criminal Procedure Code,it was the Magistrate who conducted the prosecution. In the circum-stances the appellant was bound to answer all questions. The questionof compulsion is one of fact. Before the witness was asked any •
• >3Cf. App. R. 77.* 16S E. R. 1136.
a 18 Cr. L. J. 482.* Cr. App. R. 228.
482
HE ARNE J.—The King v. Peter Per era.
incriminating question it was the duty of the Magistrate to have warnedhim as required by section 132 (3) of the Evidence Ordinance—The Kingv. Weerasinghe 1; Ganga Sahai v. Emperor *; The Queen v. Gopal Dosset al’. In India there are some conflicting decisions, all of which havebeen reviewed in Reddi v. ReddiThe position would be different wherea witness volunteers to give evidence—Rex v. Rahiman”. For meaningof “ incriminating question ” see. The Queen v. Boyes “ and Phipson onEvidence (8th ed.) 199.
, M. W. H. de Silva, K.C., A.-G. (with him H. W. R. Weerasooriya,C.C.) for the Crown, called upon to address on section 132 of theEvidence Ordinance.—The terms of section 132 are quite clear. Thesection is an attempt to reconcile three principles of law. In Englandthe third principle is sacrified for the second. The mere fact that aWitness is expected to answer questions does not mean compulsion byCourt. A witness is not compelled to answer every question put tohim by Counsel. It is only when a witness is definitely compelled byCourt to answer that the provisions of section 132 would be applicable—Emperor v. Banarsi7; Reg. v. Coote’. The statements made by theappellant to the Magistrate were made voluntarily and in the course ofan inquiry under section 153 of the'Criminal Procedure Code.
The appellant Was convicted of the murder, on June 5, 1942, of awoman he had married on April 28, about six weeks previously. Hehas appealed on the law and has sought leave to appeal on the facts.
The prosecution established that he had a motive for murdering hisWife, To. that part of the case against the appellant it is unnecessaryto refer in. detail.' It depended in the main not on oral but on docu-. mentary evidence, and in our opinion it established that, if the appellant■murdered his wife, he certainly had a motive for doing so, inadequateno doubt as any motive for murder must be taken to be.
Opportunity was also proved. The appellant was in close proximityto the deceased at the time of her" death and she was shot beyonddoupt with a Weapon, a shot gun, which had up to the 21st May admittedlybeen in his possession.
One of the points the Jury had to consider was whether the gun hadthereafter passed out of his control or not. It had been, kept by theappellant under his bed in a room occupied by him and his wife in thehouse of Marcelina. Cooray. If a thief had entered the appellant’s roomon the night of the 21st May when the gun was found to be missing, ithad certainly passed put, of the appellant’s control: if, on the other hand,as the prosecution suggested, the appellant had himself removed thegun and there had been no intrusion into his room by a thief, it had not.‘There were indications that the “ burglary ’’ had been faked or “ staged”but they were not by themselves conclusive. At no time subsequentto the 21st May had- the gun been traced to the appellant’s possession.It Was not found till after the tragedy which cost his young wife her life.
Cur. adv. vult.
September 16, 1S43. Hearne J.—
. * A. I. R. {1929) Mad. 236.
*' (1926) 8 O. L. Rec. 36.
* A. I. R. (1920) All. UO.
3 1. i. R. (1881)'3 Mad. 271 at 284-5.
(1905) 9 N. L. R. 71.
(1861) I B A S 311 at 329-330.’ 25 Or. L. J. 477.
‘ L.R. 4 P. C. 599.
HEAjRNE J.—The King v. Peter Perera.
483
It was found close, very close to tfie scene of the crime. There can belittle, if any, doubt that the person who placed it there was the personwho shot the deceased with it. Was that person the appellant ?Ultimately that question can only be answered, not by reference to thecircumstances surrounding the “ burglary ” for they are, at the most,circumstances of suspicion, but by a consideration of the happenings onthe night of the 5th June.
It is difficult to refer to these happenings without reference to the sketch.The deceased went into the front compound on the left hand side ofMarcelina’s house where she and the appellant were living. The latterwas on the right hand side of the verandah at the point marked A. FromA to X where the appellant had originally said the deceased had squattedto ease herself is 12 feet. Maria, one of the inmates of the house, wasin the hall. On hearing the report of a gun or shortly thereafter, as theJudge for reasons he gave suggested was probably the case, she cameout on to the verandah and saw the deceased lying fallen and theappellant moving towards her. At the- outset of the trial the prosecutiontheory had been that the appellant had shot the deceased .on the verandahwhen she bad returned there after easing herself outside. But as thecase progressed and medical evidence was called, it transpired that,although the deceased had a serious injury to her heart, the possibilityof her having been shot in the compound and of having walked or runto the verandah could not be excluded.
The Judge told the Jury the exact circumstances of which they wouldhave to be satisfied before they could conclude that the shooting had takenplace in accordance with the first theory propounded by the prosecution.That portion of the charge, if we may say so with respect, wasunexceptionable and no objection was taken to it.
The argument that was .addressed to us was of a twofold nature. Inthe first place it was argued that, as it was reasonably possible for thedeceased to have been shot by a person other than the appellant over thefence on the left hand side of the house close to where she had squatted,the appellant should have been acquitted : and, in the second place, thatthe Judge did not in fact leave it to the Jury to decide the question ofwhether it was reasonably possible.
Assuming the deceased had been shot as she squatted at X, 12 feet -fromthe fence, the possibility of her having been shot by a person on the otherside of and over the fence is, on the face of it, negatived by the positionof the slugs found at M and N as well as by the fact that the muzzle of thegun had been brought, according to the expert evidence, to a distanceof one foot from the body of the deceased. It is unnecessary to examineall the data. It is enough to say that if the Jury had acquitted theappellant on the ground that the deceased may have been shot over thefence it would have been in our opinion an unreasonable verdict. On.the contrary the conclusion is irresistible that, if she was not shot on theverandah but at X, she was shot by a person close up to, and on' theverandah side, not the fence side of her. That person could only havebeen the appellant. If anqther person had been there, the appellantwould have seen him, and he says he saw nobody.'
484
HEAHNE J.—The King v. Peter Perera.
In regard to the second point it is true that the Judge did not say tothe Jury “ it is for you to consider whether the deceased, if she was at X,as the appellant at a very early stage said she was, could have been shotby a person outside and over the fence But the matter must belooked at realistically. No doubt the defence had been stressed, evenif on an examination of it, it appears to be fantastic, and Ihe Judge hadtold the Jury, not once but at the beginning as well as at the end of hischarge, that the appellant was entitled to be acquitted upon anyhypothesis other than guilt. In fact, in one portion of his charge, hereferred to the possibility of an assailant other than the appellant havingcome.into the compound, it is true he discounted this possibility by thefact that the appellant did not claim to have seen anybody, but he wenton to say that perhaps the Jury might accept what the appellant had saidin Court, viz., that he did not really know where the deceased had beensquatting. On this basis another hypothesis (and indeed a more reason-able one than shooting from the fence) consistent with the appellant’sinnocence was left to the Jury.
In our opinion, in the course-of an exhaustive charge the case for thedefence was dealt with adequately.
After the deceased had been killed the identical gun which had beenstolen from the appellant’s room on 21st May, or of which, according to theprosecution theory, he had retained possession, was found on the lefthand side of the house beyond the fence to which I have referred. If theappellant had been his wife’s murderer he could have thrown the gun asfar as the spot where it was found. “ The gun bore the mark of themuzzle having struck into the ground ”. In his charge the Judge said :
“ A gun if merely dropped muzzle downwards would hardly make ahole two inches deep ….”. That, however, is precisely what the
Government Analyst apparently thought it could do. “ A personleaning over the corner of the fence ” he said “ could have thrown thegun to cause the mark on the ground. It could, however, have beencaused by the dropping of the gun by a person when running ….”.
The omission to refer to the Government Analyst’s evidence has beendescribed as misdirection. In the passage that was- cited the Judge nodoubt expressed his own personal opinion and it is to be noted that hetold the Jury “ they might form an entirely different view ”. Butalthough in that particular passage no reference was made to the opinionexpressed by the Government Analyst it is wrong, I think, to supposethat the possibility of the gun having been dropped was not present to theminds of the Jury to whom the report of the Analyst had been reacf. Infact, as would appear from another passage in the charge, it was emphasizedthat there were two views of the matter. The Judge referred to CrownCounsel’s remark that “ whoever threw the gun to the spot or placed itat the spot where it was found had the object of connecting up theshooting with the burglary^ . . . .”. I do not think there wasmisdirection. It is not for a Court of Appeal so to hold on an isolatedpassage. The charge must be considered as a whole.
It was further argued that the reception at the trial of the evidencegiven by the appellant before the Magistrate was illegal and vitiated theconviction. It was stressed that the Magistrate “ prosecuted ” (section
Rahim, and Elisahamy.
485
392, Criminal Procedure Code), that the appellant was bound or at leastfelt bound to answer dl1 questions put to him and for these reasons hisevidence could not be proved by reason of the provisions of section 132of tbe Evidence Ordinance.
It has been held in India in a large number of cases that if a witnesswishes to prevent his statement from being thereafter used he must.object to answer the question put to him. In a case decided by the HighCourt of Allahabad, however, it was held that “ an answer given bya witness in a criminal case to a question put to him either by the Court orCounsel on either side, is within the protection afforded by the section ”—Emperor v. Chatur Singh *. More recently it has been held that “ thecompulsion contemplated in the section is something more than beingput into the witness box and being sworn to give evidence. Thecompulsion refers to compulsion by Court and not compulsion under thelaw. The compulsion may be implied or explicit, and in every case it is aquestion of fact whether there was or was not compulsion ”.(A. I. R.
1929 Mad. 236). If I may say so with respect, this appears to representthe correct view of section 132, Evidence Ordinance. The protectionarises only when it appears that the Court makes a witness understandimpliedly or explicitly that he has no option but to answer, inother words when he is constrained to answer. In The King v. Weerasinghe Maartensz J. held that as the question put to the accused, when a witness,had been put by the Judge, he no doubt felt bound to answer the question.It was accordingly held that he had been compelled to answer. In thepresent case the appellant had been questioned by the Superintendent ofPolice and the Magistrate in fact put on questions. In our opinion therewas no misreception of evidence:
Arguments were addressed to us on other matters but they are withoutsubstance.
The application for leave to appeal is refused and the appeal on thelaw is dismissed.
Appeal dismissed.