The King v. Sgthasivam-
COTJBT OF CkCTMEfTAI, APPEAL
1948Present: Jayetileke S.P.J. (President), Canekeratne andGratiaen JJ.THE KING ». SATHASIVAMAppeal No. 72 of 1948
S. G. 8—M. C. Jaffna, 10,091
Court of Criminal Appeal—Charge of murder—Confession; of accused—Jury
may believe part and disbelieve rest.
Where an accused makes a statement, part of which incriminateshim while part is exculpatory, the whole confession must be taken andit is open to the jury to attach different degrees of credit to the differentparts.
1 (1919) 6 Geylon Weekly Reporter 89 at 91.
•——J. S'. A 86423 (2/49)
JAYETILEKE S.I*. J.—The King v. Sathasivam
-^^.PPEAT-i from a conviction in a trial before a Judge and Jury.
S. Sharvananda, with A. Jayasuriya and O. A. Thavaihuray, for theappellant.
J.A. P. Cherubim, Crown Counsel, for the Crown.
Cur. adv. vvlt.
September 24, 1948. Jayetieeke S.P.J.—
The appellant was convicted at the Jaffna Assizes on August 25, 1948,of murder and was sentenced to death.
The deceased was the wife of one KLandiah, a dhoby, who washed forthe appellant and the members of his family. The prosecution ledevidence to prove that the appellant went to Kandiah’s house on themorning of the tragedy with a message from his mother requesting thedeceased to come for her wages, and the deceased went with the appellant.A little later one Ponniah, a boutique-keeper, went into a palmyrahgrove hearing cries of murder and saw the appellant running away fromit and the deceased lying fallen in a dying condition. The prosecutionproved further a confession made by the appellant to one Suppiahpillaithat he had killed a woman, and another confession (P9) made by himto the magistrate. In P9 the appellant has stated that two or threedays before the tragedy the deceased abused him for not paying a sumof Rs. 2 which he owed her, and attempted to strike him with an ekelbroom. On the day of the tragedy he met the deceased when he wentto cut palmyrah leaves, and the deceased abused him again. He thenlost his temper and stabbed the deceased. The prosecution led evidenceto prove that there was no quarrel between the deceased and the appellanttwo or three days before the tragedy, but it was unable to lead anyevidence as to the circumstances under which the appellant inflictedinjuries on the deceased.
The presiding Judge in his charge to the jury pointed out that therewas no motive for the crime and invited the jury to consider whetherthe circumstances under which the appellant inflicted the injuries weresuch as to reduce the offence from one of murder to culpable homicidenot amounting to murder. He said :—
“ Once the Crown has discharged the burden, then prirna facieit will be a case of murder. Then you will go on to consider, on allthe evidence, that these blows were delivered upon grave and suddenprovocation while the accused was deprived of his power of self-control.And you will bear in mind that the only evidence as to the circum-stances in which they were delivered, is his confession to the Magistrate.But, of course, it is open to you, if you feel like that, to find that thatconfession was a fabrication, and you will hear in mind the evidence ofJCandiah, who certainly contradicts some of the earlier parts of thatconfession. Of course, nobody was in a position to contradict thepart which immediately dealt with the offence.”
J AYETILEKE S.P.J.—The King v. Sathaaivam
At the argument before us two points were taken, by Counsel for theappellant—
That the Court was bound to accept the confession (P9) as a whole
and that it could not reject a part of it as inherently incredible.
That the verdict of the jury is unreasonable.
On the first point Counsel relied on a judgment of a Divisional Benchin Balmakund v. Emperor1 in which it was held that where there is noother evidence to show affirmatively that any portion of the exculpatoryelement in the confession is false, the Court must accept or reject theconfession as a whole and cannot accept only the inculpatory elementwhile rejecting the exculpatory element as inherently incredible. Weare of opinion that this judgment does not apply to the facts of this casebecause there is evidence which, if accepted by the jury, would showthat a portion df the exculpatory element in P9 iB false. Even if itdoes apply, we are of opinion that we should not follow it because itseems to us that it is wrong in principle. The learned Judges have basedtheir decision on Rex v. Jones8 in which.it was held that if there be noother evidence in the case, or none which is incompatible with the confes-sion, it must be taken as true. This principle has not been acceptedin two later decisions which were cited to us in the argument. They.are R. v. Higgins 3 and R. v. Clewes*.
In R. v. Higgins the prisoner was charged with larceny in stealingtwo yards of woollen cloth. It appears that the prosecutor was at aninn at Berkeley, and that, having the piece of doth with him, he left iton a chair in one of the rooms in the inn while he went out, and that,on his return, he missed the doth. It was proved that about four hoursafter the loss of the cloth the prisoner sold it at a place about 8 milesdistant from Berkeley. The prosecution read as evidence the statementmade by the prisoner before the Magistrate. In it the prisoner said“ that the doth was honestly bought and paid for ”. In summing upParke J. said—
“ In this case the prosecutor has given evidence of what the prisonersaid before the Magistrate. Now, what a prisoner says is not evidence,unless the prosecutor choose to make it so, by using it as part of bis caseagainst the prisoner ; however, if the prosecutor makes the prisoner’sdeclaration evidence, it then becomes evidence for the prisoner, aswell as against him ; but still, like all evidence given in any case, itis for you to say whether you believe it. If you believe that theprisoner really bought and paid for this cloth, as he says he did, youought to acquit him ; but if from his selling the doth so very soonafter it was lost and that, too, at a distance of eight miles, you feelsatisfied that the statement of his buying it is all false, then you mustfind him guilty.”
In R. v. Glewes a confession made by the prisoner was read in evidenceiby the prosecution. In the course of his summing up Littledale J.- said-—
“ If a prisoner, charged with murder, says in a confession whichis read in evidence against, that he was present at the 'murder, but
1 A. I. R. (1931) Allahabad at pi.• (1929) 3 C. 'and P. 603.
• (1827) 2 C. and P. 629.1 (1930) 4 C. and%P. 221.
NAGALINGAM J.—Piyadaaa v. Eogallegama
took no part in the commission of it, this is evidence for him as well as-against him ; but the Judge will not direct an acquittal as the jurymay believe one part of the confession, and disbelieve another.”
Arohbold1 says that the better opinion is that expressed in J2. v. Higginsand R. v. Clewes. Phipson 2 takes the same view. He says that the wholeconfession must* in general, be taken even though containing matterfavourable to the prisoner though the jury may attach different degreesof credit to the different points.
On the second point we are unable to say that the verdict of the juryis unreasonable. The burden of proving the existence of circumstanceswhich would bring the case within exception 1 to section 296 of the PenalCode was upon the appellant, and the jury were obviously not satisfiedwith the evidence adduced by him. They may not have believed thatthere was any provocation or they may have thought that the allegedprovocation was not grave. We would, accordingly, dismiss the appeal,and the application.
THE KING v. SATHASIVAM