142-NLR-NLR-V-43-THE-KING-v.-PUNCHI-BANDA.pdf
569
The King v. Punchi Banda.
1942• Present; Moseley S.P.J.
THE KING v. PUNCHI BANDA45—M. C. Dandagamuwa, 9,536a.
Admission by accused as witness—Admissible against him in subsequentcharge against him—Confession prompted by suggestion from PoliceSergeant—Hope of advantage—Evidence Ordinance, ss. 21 and 24.
A statement which is made by an accused person in the course ofproceedings against other parties in respect of the same incident andwhich amounts to a confession is admissible under section 21 of theEvidence Ordinance, unless it is otherwise tainted.
A confession which is prompted by a suggestion from a Police Sergeantthat some advantage would be gained by the accused if he spoke thetruth is obnoxious to section 24 of the Evidence Ordinance.
I
N this case the accused was charged with murder at the 1st MidlandCircuit, 1942, before Moseley S.P.J. and a Jury.
Nihal Gunesekera, C. C., for the Crown.
Sextus Coorey, Proctor, for accused.
Cur.' adv. vult.
570
MOSELEY S.P.J.—The King v. Punchi Banda.
July 14, 1942. Moseley S.P.J.—
The accused was charged with murder. At the outset, the juryhaving been asked to retire, Counsel for the defence objected to theadmission of two statements made by the accused, each of which is in thenature of a confession. The first (P 15). was made by him in the capacityof witness in the course of proceedings against other parties in respectof the same incident; the second (P 39), when he was subsequentlycharged with the offence. On the latter occasion, the Magistrate, whohad recorded the evidence of the accused* in the previous proceedings,had entered the witness box, with a view to testifying to the first state-ment of the accused, and had been affirmed, when the accused statedthat he was “ willing to make the same statement ”, Certain “ prelimi-nary precautions ” were taken, and upon the accused “ persistingthat he is anxious to make the statement” the acting Magistrate expressedhimself as “ inclined to belive ” that the statement about to be madewas to be made voluntarily. The statement was then recorded and aMemorandum made in the form prescribed by section 134 (3) of theCriminal Procedure Code.
In regard to the first statement, Counsel for the accused argued thatit is not the statement of an accused recorded in the course of an inquiryand does not, therefore, come within the scope of section 233 of theCriminal Procedure Code, but he was unable, on the facts then before him,to advance any further objection against its admission. Kis contentionis sound in regard to the inapplicability of section 233, but it seems tome that, unless the statement is otherwise tainted, it is clearly admissibleunder section 21 of the Evidence Ordinance as an admission by theaccused.
The point was then taken that the second statement, P 39, had beenmade in circumstances which offend the provisions of section 24 cf theEvidence Ordinance, which makes irrelevant any confession which hasbeen caused by any inducement, threat, or promise proceeding from, aperson in authority.
My attention was drawn to a passage towards the end of the statement,which is as follows:—“At the Police Station …. when I wasquestioned, I denied any knowledge about this matter. Then theSergeant told me tp tell the truth if I knew anything about this and to getout of it. Then I came out with the truth …. Then theSergeant asked me to tell the truth before the Magistrate and to beg forpardon. Therefore, I spoke the truth before the Magistrate Thesewords definitely imply that the confession was prompted by a suggestionby the Sergeant ihat some advantage would be gained by the aceuedif he told the truth. In the face of them, however, the learned ActingMagistrate expressed himself as believing that the statement wasvoluntarily made. Unfortunately, he was unaware of the rules issuedby the Legal' Secretary for the guidance of magistrates in recordingstatements and confessions under section 134 of the Criminal ProcedureCode_ Had he been- awarg; of the instructions, and as Abrahams C.J.said,-in The'‘King v. W. Mudiyanselage Ranhdmy and others', “probedvyith the greateist care into the motives which led the accused to make
' 2C.L. J. 104.
571
MOSELEY S.PJ.—The King v. Punchi Banda.
this statement ”, it is highly improbable that the statement would havebeen made. Moreover, the statement was recorded in the Magistrate’s.Chambers, and not in open Court, as advised in the Rules, and the accusedwas not given any time to reflect upon his position as is considereddesirable and advisable. I do not suggest that the Rules have any legis-lative sanction. They are, as described inanticipation by Abrahams C.J.,'• Rules of prudence But it seems to me that they set out theprecautions which, where practicable, should be regarded as a minimum.I may mention that, in the recent case of The King v. W. K. FranciscuAppuliamy ’, Wijeyewardene J. thought that the “ Magistrate shouldhave allowed a much longer interval than 45 minutes to elapse beforehe recorded the confession.” In the present case, no time at all wasallowed. It appears to me, to express myself no more strongly, that theconfession P 39 was caused by an inducement proceeding from a personin authority and is irrelevant and, therefore, inadmissible.
Having arrived at that conclusion at the close of the argument, itbecame necessary for me to consider whether the first statement P 15was tainted in similar manner. Counsel for the accused put the latterinto the witness box. He said that he was arrested on September 5 andkept in custody until the 11th, the date upon which he appeared as awitness and made the statement incriminating himself. He allegedthat he was assaulted by Sergeant Lewis Appuhamy and promised anacquittal if he would say what he was told to say.
A witness, Dingiri Banda, called in support, also alleged that he himselfwas knocked about by Sergeant N. X. Perera “ from 4.30 p!m. to 4 a.m. ”in order to induce him to tell the truth. The accused also alleged thathe spent the night before making the statement P 39 (i.e., October 13)at Kuliyapiliya Police Station and was there coached by InspectorSLvrsampu and Sergeant Lewis Appuhamy as to the statement whichthey wished him to make. It is noteworthy that on September 29Inspector Sivasampu had informed the Court that the 6th suspect(i.e., accused) wished to make a statement.
The latter informed the Court that he was not willing to makea'statement.
All these allegations were denied by the police officers concerned, andI should be very reluctant to believe that they were guilty of the conductimputed to them. In regard to the alleged incident on the night ofOctober 13. the Fiscal’s Marshal swore that the accused was broughtfrom Negombo remand goal to the M. C., Dandagamuwa, direct on themorning of October 14. In that case, the accused could not have beenat Kuliyapitiya Police Station as alleged by him. Moreover, SergeantLewis Appuhamy denied that accused was in custody until September 11,when he appeared as a witness. Be that as it may, it is conceded by theSergeant that he questioned the accused twice, viz., on September 5 and7, and that at that time the Police were at a complete loss in regard toevidence against any of the persons then suspected, including theaccused. The Sergeant says that accused then came to him on the 9thand said that he wished to tell the whole truth, and that he thereuponmade a statement which, it can be assumed, was on the lines of his
1 12 X. K. R. 553.
572
SOERTSZ J.—Silud v> Silvfl.
subsequent evidence. It should be noted that when he began to incri-minate himself in the witness box he was questioned by the Magistrateand warned that he was equally liable, with the other suspects, for theoffence. He said that he was giving evidence voluntarily and realizedthe implications. Even so, it is difficult to imagine why a person in theposition of the accused, who must have known that there was no evidenceagainst him, should deliberately provide that evidence, unless someinducement were offered to him. Seeing that his first public appearancein the proceedings was in the character of a witness, it is not difficult tobelieve that he had been told that that would be the part he would playthroughout the proceedings and that no harm would befall him. Thissupposition is confirmed by the passage from P 39, which I have quotedabove. I hold, therefore, that P 15, like P 39 and for the same reasons,is inadmissible.
Objection upheld.