067-NLR-NLR-V-57-THE-QUEEN-v.-M.-S.-PERERA-et-al.pdf
[Ik the Couet of Criminal Appeal]
Present: Nagalingam, S.P.J. (President), Gunasekara, J., and
Pulle, J.
THE QUEEN v. M. S. PERERA ct al.
Appeals 1G-17, with Applications 15-17, of 1953,S. C. 4S—Jf. C. Gampaha, 2,6S2
Evidence—Accused person’s statement to police—Admissibility—Exculpatory state-ment—Admission—Previous or subsequent conduct—Evidence in rebuttal—When permissible—Evidence Ordinance, ss. 8 (2), 17 (/), 21, 25.
Tho 1st and 2nd accused were charged with robbery, and fho 3rd accusedwas charged with abetment of that offence. Tho robbery was said to havobeen committed during the afternoon of the 7th September, 1051. Whenthe 3rd accused was taken into custody ho made two statements to tho officerin charge of the polico station. Evidence of tho contents of both these state-ments was adduced by tho prosecution at the trial. According to tire policoofficer’s version of the first statement, tho 3rd accused gave the polico an accountof how ho spent the afternoon of tho 7th September, 1051. Tho polico officer’sversion of tho second, statement was that tho 3rd accused had refused aninvitation on tho 31st August to join in a conspiracy with tho 1st and 2ndaccused to commit tho robbery on tho 7th September. If tho jury believedthat the 3rd accused had been invited on the 31st August to join in a conspiracywith tho 1st and 2nd accused and that after tho robbery ho gave tho police afalso account of how he spent tho afternoon of tho 7th September, they mightwell have found in thoso facts a ground for accepting tho evidence of twoaccomplices implicating the 3rd nccused, which they might otherwise havorejected.
It was contended that tho statements to the polico wero inadmissible on thogrounds that the ono relating to tho events of tho 7th September was notrclovant and that tho other was a confession to a polico officer and thereforebarred by section 2u of the Evidcnco Ordinance.
Held (by the majority of tho Court), that tho first statement was relevantunder section S (2) of tho Evidcnco Ordinance, and that tho second statementwas an exculpatory statement and not a confession, although it was a statementwhich suggested an inference ns to a relevant fact and was therefore an admissionns defined in section 17 (1). Eeing an admission tho second statement wasndmissiblc in evidcnco under section 21, to prove as against the 3rd nccusedthat a week before tho robbery ho had been invited to join the other two accusedin a conspiracy to commit that offcnco.
Held further, that evidence in rebuttal should not bo permitted except ina case where a matter has arisen ex improviso or tho evidence was not admissiblobeforo the prosecution was closed.
PPEALS, with applications for leave to appeal, against certainconvictions in a trial before the Supreme Court. –
1st accused-appellant in person.
Srimuih B. Lekanuje, for 2nd accused-appellant.
M.J/. A'umarakalasingha-m, with -J. C. Thurairatnam, for 3rd accused-appellant.
B. T. Premarainc, Crown Counsel, for the Attorney-General.
Cur. adv. vull.
June 1, 1953. Gusasekaba, J.—
The three accused were tried jointly at the Colombo Assizes on anindictment charging the first accused, Solomon Perera, and the secondaccused, Piyadasa alias Banda, with robbery of a bag containingRs. I2,2S3 70 in cash from one Dharmasena, and the 3rd accused Jajm-soma, with abetment of that offence. All three were convicted, the firstand second accused bj- a unanimous verdict of the jury and the thirdby a verdict of five to two, and they were sentenced to eight years’rigorous imprisonment each. At the close of the argument we dismissedthe appeals of the first and second accused and reserved our judgmenton that of the third.
Dharmasena was the manager of a co-operative wholesale store whichhad a depot in Veyangoda and had its head office at Mudun<roda inGampaha. Goods were sold at the Veyangoda depot on Tuesdays andFridays, and the money received on each day was taken by Dharmasenaon the same day to the head office at Mudungoda. It was his practiceto take a train that left Veyangoda at 3 p.m., and he used to carry themoney in a bag, in which he carried also a bill-book and two accountbooks. The robbery is said to have been committed oil the 7th September1951, which was a Friday, when he was taking the clay’s collection bythis train as usual.*
Dharmasena and another passenger, Gunawardana, gave evidenceabout the robbery. According to them, when the train was slowingdown at an unprotected level crossing, about two miles from the Veyan-goda railway station, the first and second accused, who had got in at thatstation, set upon Dharxnasena and pulled at the, bag of monev that wasin his hands, and the second accused managed to wrest it from his grasp
Dharmasena released Ills hold, according to him, after the first accusedhad struck him a blow on the chest with some weapon that was clenchedin Ills fist. (A doctor who exnmined Dharmnsena on the next day foundan abrasion and contusion that could have been caused by such a blow.)Dharmasena stopped the train by pulling the communication cord, butthe two accused had already got out and were running along afoot-path.He chased them for some distance but failed to overtake them, and hereturned to the train and reported the incident to the guard.
. The foot-path falls into the high road at a spot beyond the level crossing,about a third of a mile from where the train was stopped. Accordingto the case for- the prosecution, the third accused had arrived at thatspot shortly before tire robbery in a Morris Eight ear driven by oneSubasinglia and waited for the other two, with the engine of the carrunning, and as soon as they turned up with the bag of money all of themleft together in the car. Subasinglia, who gave this evidence, also saidthat on the way the three accused divided the money among themselvesbefore they got out at their several destinations, and that the thirdaccused gave him Its. 50 at the end of the trip, sav ing 1; Keep this Rs. 50.Don’t tell anybody that 1 travelled in this car. ” He added that at thethird accused’s request lie secretly threw into the jungle a hag that hadbeen left on the rear scat. The third accused told him, he said, :: Throwit into the jungle without letting anybody sec you. ” He did so, buthe later pointed it out- to the police, and it turned out to be the stolenba" with the bill-book and the two account books still inside it. Hisevidence about the third accused’s share in the arrangement that is saidto have been made for the departure of the other two from the scene ofthe offence was supported by that of another witness, Ebert.
The learned presiding judge expressed the view that •Subasinglia andEbert were accomplices. Upon a consideration of all the evidence werespectfully agree with that view and we do not doubt that it must have ■been shared by the jury. The case against the third accused dependedon the credibility of these two witnesses, while against the first andsecond accused there was an entirely independent ease. Against thefirst accused there was, besides the evidence of Dharmasena and Gima-wardana, the evidence of a man named Karunaralna, who lived in a houseby the foot-path and who stated that the first accused was one of thetwo men who were chased by Dharmasena. The first accused waspointed out by each of these witnesses at an identification parade thatwas held on the 10th September, 11)51. His defence consisted in astatement from the dock to the effect that before the parade a policeofficer had shown him to the witnesses. He had not made such a com-plaint before the trial. The second accused was pointed out by Dhar-masena and Gunnwardana at an identification parade held on the 1stOctober. He did not give evidence at the trial or make a statementfrom the dock….
The third accused was an assistant teacher at. a Central School atDcwalapola, in the neighbourhood of Vcyangoda. On the 7tii September,1951, he left the school at- noon, an hour before it closed, with the head-master’s permission, and on the morning of the following Monday ho
wired to the headmaster from Colombo asking for- a day’s leave on theground of ill-health. In the meantime the police had looked for himin his house afc-Veyangoda on the night of the 8th and failed to find him.He presente<l himself at the Veyangoda police station at 1.15 p.m., on the10th and ivas taken into custody, and on that occasion he made twostatements to Inspector Hickman, the oiliccr in charge of the station.
.Evidence of the contents of both these statements was adduced by thenrosccution. The inspector’s version of the first statement is as follows :
1 do not know anything about the robbery of casli of Rs. 12,000on End ay. I u as at Vc3-angoda at my house at 2.30 p.m. I wentto Hinuwangoda Central School Sports ground. I was with Ranatungaa teacher of the school from 3 p.m. to G p.m. I then returned homeat G.30 2>.m. by bus. I slept at home. On Saturday I was at homeanti stayed there till Sunday morning.
Ranatunga, who too was an assistant teacher at the Dewalapola school,gave evidence for the prosecution denying that the third accused hadbeen in his company from 3 p.m. to G p.m. He said that lie himselfhad been present at the sports meet of the jVIinuwangoda Central Schoolfrom about 3 p.m. till about 5.30 p.m. but he had not- seen the thirdaCcusecl there. The third accused giving evidence denied the accuracyof the inspector’s version of his statement, although the inspector hadnot been cross-examined. He alleged that what he had said aboutRanatunga was merely that he had seen him, and also that lie had notsaid that lie had been at home on Saturday and had been there tillSunday morning.
The inspector’s version of the second statement is as follows :
£: On Friday the 31st August I went to the' Dominion Hotel at nbout–.12 noon aiul I saw Wilbert the Dominion Hotel Mudalali, Solomon and.Banda- who ■were upstairs. I went- there to see William as he is wellknown to me. The" were drinking arrack and discussing about somemoney case. Then Wilbert- told me that they were talking aboutrobbing the Co-op manager the following Friday when he takes themoney of the Co-op stores to Gampaha. He asked me whether Iwould assist in keeping the money safe and I refused. ' The two servantbo3's, one about 7 and the other about 15 who were cmplo3’cd there cantestifr to this meeting. ”
Solomon and Banda arc the. names of the first and second accused.
If the majority of the jury believed that the third accused had beeninvited on the 31st August to join in a conspiracy with the first and secondaccused to rob Dharmasena on the following Friday, that on the 7thSeptember he left the school earlier than usual at a time that wouldhave enabled him to help in the robbery at 3 p.m., and that after therobbery lie gave the police a false account .of how he spent that afternoon,
they might well have found in those facts a ground for accepting theevidence of Subasinglia and Ebert, implicating the thud accused, whichthey might otherwise have rejected. It is contended for the appellantsthat the statements that are said to have been made to Inspector Dickmanare inadmissible, on the grounds that the one relating to the events of the7th September is not relevant and that the other is a confession to a policeofficer and therefore barred by section 25 of the Evidence Ordinance.The majority of the court are of the view that the former is relevantunder section S (2) of the Evidence Ordinance, and that the latter is anexculpatory statement anti not a confession, although it is a statementwhich suggests an inference as to a relevant fact and is therefore anadmission as defined in section 17 (1).
Being an admission the second statement was, in the opinion of themajority of us, admissible in evidence under section 21, to prove as againstthe third accused that a week before the robbery he had been invited tojoin the other two in a conspiracy to commit that offence, and it wastherefore open to the crown counsel to adduce evidence of it before theprosecution case was closed. He did not adopt this course, however,but adduced the evidence only after the close of the case for the thirdaccused. The ground upon winch this procedure was permitted appearsto have been that the third accused had denied under cross-examinationthat he had made this statement, and the inspector was bciig called torebut the denial with the sole object of discrediting the third accusedas a witness. It does not appear to have been appreciated that the modebv which the prosecution sought to discredit him was by proving a rele-vant fact, namely an admission, which could have been proved beforethe close of the case for the prosecution. As this court pointed out inthe ease of R. r. Thiuaisamy 1, to permit such a procedure would be. awrong exercise of tlic presiding judge's discretion ; for evidence in rebuttalshould not be permitted except in a ease where a matter has arisen cximproviso or the evidence was not admissible before the prosecutionease was closed. But for the evidence that was improperly admitted inrebuttal the majority of the jury may well have agreed with the twojurors who were not prepared to accept the evidence of Subasinglia andEbert against the fluid accused. Though, not agreed upon the gromuls,wo are unanimously of the opinion that the conviction of the third accusedcannot be sustained ; we therefore cjunsh the conviction of the thirdaccused and set aside the sentence that lias been passed on him.
We arc also unanimously of opinion that the admission of evidenceof the third accused’s second statement to the inspector caused noprejudice to the other two accused.
Convictions of 1st and 2nd accused affirmed.
Conviction of 3rd accused quashed.
1 (I0o2) S4 -V. r,. It. 440.