L. B. X>E SILVA, J.—The Queen v. Albert
1960Present: Sinnetamby, J., and L. B. de Silva, J.
THE QUEEN v. D. L. ALBERTS. O. 117/60—D. C. (Criminal) Panadura, 295/25103
Evidence Ordinance—Section 27 (I)—Meaning and effect of the words “ as relateddistinctly to the fact thereby discovered ”—Penal Code ss. 369, 394, 443.
Tho accused-appellant was convicted of house-breaking by night andretention of stclen property, offences under sections 443 and 394 of the PenalCode. The stolen goods were discovered by a Police Inspector in consequenceof a statement made to him by the accused when he was in custody. In hisevidence-in-chief at the trial the Inspector answered in the affirmative thequestion : “ Did the accused tell you that the articles that were subsequentlyrecovered by you were in his custody and thereafter take you and point themout to you ? ”,
Held, that the evidence of the statement of the accused to the police officerwas not admissible under section 27 (1) of the Evidence Ordinance. Thewords “ the property is in my custody ” in the statement of the accused werenot directly relevant to the discovery of the stolen goods nor could they besaid to relate distinctly to their discovery within the meaning of section 27 (1)of the Evidence Ordinance.
Appeal from a judgment of the District Court, Panadura.
Colvin R. de Silva, with Y. L. M. Mansoor, for the Accused-Appellant.S. S. Wijesinha, Crown Counsel, for the Crown.
Cur. adi. vult.
November 14, 1960. L. B. de Silva, J.—
The Accused-Appellant was indicted on three counts o^house-breakingby night, theft of articles and cash worth Rs. 4803’75 cts. and dishonestlyretaining stolen property worth Rs. 160.50 cts. belonging toMrs. S. P. Suripperuma, punishable under sections 443, 369 and 394 ofthe Penal Code respectively.
After trial the learned District Judge convicted the Appellant onthe 1st and 3rd counts but acquitted him on the 2nd count of committingtheft.
The house of Mrs. Suripperuma was burgled on the night of 10.3.59and cash, jewellery and other articles wore stolen from her house.The burglars were not identified by the inmates of the house.
On information received by the Police, Inspector Mendis searched thepremises of the Accused abcut 3.40 a.m. on 16/3/59. On a statementmade by him, the Inspector discovered three bangles, one ear stud and
L. B. DE SILVA, J.—The Queen v. Albert
some coins valued at Us. 160-50 in a cart shed in the compound of theaccused and some distanoe away from his kitchen. They were in atin which was kept on a plank about 6 feet from the ground.
The bangles and the ear stud (one) were identified by Mrs. Suripperumaas part of her stolen property. These articles were not included in thefirst list of stolen property (PI) given by her to the Police but had beenincluded in a second list furnished by her on the same day as the firstlist.
In the course of his evidence, the Inspector was asked—
Q.Did the Accused tell you that the articles that were subsequentlyrecovered by you were in his custody and thereafter take you and pointthem out to you ?
Counsel for the defence objected to this question as inadmissiblebut the learned Judge allowed the evidence under section 27 of theEvidence Ordinance. He relied on the case repoited in 51 1ST. L. R.at p. 529.
The Inspector answered “ Yes ,J to the question.
The conviction of the accused was based solely on the finding thatpart of the stolen property was found in the possession of the accusedsoon after the theft and the presumption drawn by the Judge undersection 114 (a) of the Evidence Ordinance.
In his judgment the learned District Judge has made no referenceto the confession by the Accused that the stolen property was in hiscustodj'. He has stated in the judgment “Within five days cf thisoccurrence these articles or some of them are found in the possessionof the accused in the house in which ho lives at 4 a.m. in the morning
The vital question for consideration in this case is whether the evidenceof the Inspector of Police that the Accused told him that these articleswhich were subsequently identified as part of the stolen property, werein his custody, is admissible as evidence under section 27. There is noquestion tnat this statement is a confession. A confession to a PoliceOfficer may be admitted in evidence if it falls within the provisionsof Section 27 of the Evidence Ordinance.
Under tliis section, when a fact is discovered in consequence ofinformation received from a person accused of any offence, in the custodyof a Police Officer, “ so much of such information, whether it amountsto a confession or not, as relates distinctly to the fact thereby discovered,may be proved
The Courts have laid special emphasis on the word “ distinctly ”in this section. Otherwise the door will be thrown wide open to admita number of confessions which did not directly relate to the discover vof such fact.
L. B. DE SILVA, J.—The Queen v. Albert
In Fernando v. S. I. Police, tilave Island 1, a stolen bicycle was recoveredon a statement to the Police. It was elicited in the cross-examinationof a Police Officer that the Accused stated that he had stolen a cycleat the City Dispensary and had later sold it to a carter.
It was held that the statement that he had stolen the cycle, did notrelate distinctly to the discovery of the cycle.
In an Indian Case—Amiruddin v. Emperor 2—it was held by ShamsulHuda J. at Page 93 that “ If, therefore, an accused person were to stateto a Police Officer that he killed A with a knife and concealed the deadbody at a particular place, all that is admissible is the information thathe had concealed the dead body in that place but the further informationthat he himself had killed A is not admissible under section 27 ”.
It was also held ir> Queen Emperor v. Babu Lai3 by Staight J. “ Wherea statement is being detailed by a Constable as having been made byan accused in consequence of which he discovered a certain fact or facts,the strictest precision should be enjoined on the witness so that theremay be no room for mistakes or misunderstanding ”.
We have referred to this Allahabad Case as it appears to us that theInspector cf Police has paraphrased the statement of the Accused andnot given the actual words used by him. It appears to be very desirable,almost necessary, that the actual words used by the accused which ledto the discovery of the relevant fact, should be disclosed in the evidenceof the Police Officer. That would nelp the Court to a great extent indeciding wnether the statement related distinctly to the fact therebydiscovered.
In the case of Rex v. Jinadasa4, the accused had told the PoliceSergeant “I can point out the place where I threw it” meaning theHatty that was subsequently discovered. The Accused took the Policeto the spot where he had thrown it. This evidence was admitted.
In the present case, the statement of the accused that the propertywhich was subsequently recovered, was in his custody, could not besaid to have been distinctly related to the discovery of that property.The property may well have been kept anywhere but still be in hiscustody. He may very well have said something further before hetook the Police to the Cart Shed where the property was found. Hemay have said “ I have kept the property or hidden the property in theCart Shed ” or “I can point out the place where I kept them or hidthem ” or words to that effect.
In this context the words “ the property is in my custody ” are notdirectly relevant to the discovery nor could the)7 be said to relatedistinctly to the discovery.
We are handicapped in this case as the very words used by the accuseddo not appear to be given by the Inspector in his evidence. If as aresult any reasonable doubt arises ir> our minds as to the admissibilityof such evidence, the Accused is entitled to the benefit of such doubt.
(1945) 46 N. L. R. 158.3 (1884) 6 Allahabad 509.
A. 1.7?. (1918) Calcutta—*(1950) 51 N.R.R. 529.
L. R. 45 Calcutta page 88.
L. B. BE SILVA, J.—The Queen v. Albert
In this case, a reasonable doubt arises in our minds, as to theadmissibility of the evidence and we therefore hold that the evidenceis inadmissible.
It would be a question of fact in ea ch case if the statement distinctlyrelated to the fact thereby discovered, keeping in mind the significancegiven to the word “ distinctly ”. It may be pointed out that the learnedDistrict Judge has not referred at all to the confession of the accusedto the Inspector of Police that the property (later identified as partof the stolen property) was in his custody. The learned Judge hasalso misdirected himself in the judgment by stating that the stolenproperty was found in the possession of the Accused in the house inwnich he lives. The property was in fact found in a Cart Shed and theInspector has stated in evidence that he did not know if this Shed belo igedto the accused though he had stated earlier that it was in the compoundof the accused.
The learned Crown Counsel argued that even if the statement of theaccused to the Police Inspector was excluded, it may be inferred from theevidence that the stolen property was in the possession of the accused ashe pointed out the place where the property was kept.
This submission is covered by authority. In Edioin Singho v. Inspectorof Police, Ghilaw1 Gratiaen J. held, ** It seems to me that, giving fulleffect to the appellant’s alleged admission that be knew where the skin ofthe stolen goat was buried, this admission falls short of proof that hehimself had at any time possessed the skin before the burial took place(Vide also the case reported at 44 C. L. W. 42.'
We hold in this case that the Crown has failed to prove that the stolenproperty which was recovered by the Police in the Cart Shed, was inthe possession of the accused and no presumption can be drawn againsthim under Sec. 114 of tbe Evidence Ordinance.
We also wish to point out that in this case, the learned District Judgeacquitted the accused on the charge of theft but convicted him on thecharges of house breaking and retaining stolen property. If the learnedJ udge had convicted the accused of the theft, acting under the presumptiondrawn from Section 114 of the Evidence Ordinance, he was fully justifiedin convicting him of the house-breaking as well because the theft wascommitted in the course of the house-breaking. iBut it is illogical toacquit him of the charge of theft but convict him only of retaining stolenproperty and thereafter proceed to convict him of the house-breakingbecause the property has been stolen as a consequence of the house-breaking. We appreciate the difficulty in which the learned DistrictJudge was placed in this case as the charge of theft as set out in Count2 of the Indictment did not include the property discovered in the CartShed near Accused’s house. Put this defect in the Indictment doesnot justify the course he has taken.
1 46 G. L. W. 6? at page 53.
TAMBIAH, J.—Bardeen v. de Silva
It is not necessary to deal with the other points raised by the learnedCounsel for the Appellant in this case as ths questions that we havedealt with, go to the root of this case. For these reasons, we haveallowed this appeal and acquitted the accused.
Sihnetamby. J.—I p£Tee.
THE QUEEN v. D. L. ALBERT