, Where proof of statements made in the course of an inquiry underChapter XII is permitted, they can only be proved by documentaryevidence and not by oral evidence for the reasons that contents ofdocuments cannot be proved by oral evidence (S. 59 Evidence Ordinance),and that in all cases in which any matter is required by law to be reducedto,the form of a document, no evidence may be given in proof of the termsof such matter except the document itself or secondary evidence wheresecondary evidence is admissible (S. 91 Evidence Ordinance).
Learned counsel for the appellant sought to place a further limitationon section 27. He argued that it did not apply at all to statements whichamount to confessions made to a police officer. His reasoning was asfollows :—Section 25 bars proof, as against a person accused of an offence,of all confessions made to apolice officer whilst in custody or not. Section26 bars’proof, as against the person making them, of all confessions madeby him whilst in the custody of a police officer unless it be made in theimmediate presence of a Magistrate. As section 25 bars all confessionsmade to a police officer whilst in custody or not, the only confessions towhich section 26 can apply are confessions made to persons other, thanpolice officers. Proof of statements made to a police officer in the courseof an inquiry under Chapter XII of the Code, whether they are confessions
1 (1939) A. I. R. (P. O.) 47 at 52.
UASNAYAIvE, C.J.—The Quean v. Murwjan Ramasenny
or not, is barred by section 122 (3). Proof of all other confessions to apolice officer is barred by section 25 of the Evidence Ordinance. As theeffect of section 122 (3) of the Code and section 25 of the Evidence Ordi-nance is to bar the proof of confessions to a police officer regardless of thesituation in which they are made, and as section 27 is not among theexceptions to section 122 (3), a confession to a police officer cannot beproved thereunder. The words of section 27 “ in the custody of a policeofficer •” are a pointer to the fact that section 26 and not 25 is contemplatedtherein. The further condition imposed by section 27 is that the persongiving the information must not only be in the custody of a police officerbut must also be a person accused of an offence. In support of the firstpart of his contention, that sections 25 and 26 do not overlap in the sensethat the former bars all confessions to police officers whether made whilstin their custody or not and that the latter bars all confessions madewhilst in their custody, he relied on the decisions of the Indian Courts,the weight of winch is in his favour. The learned Solicitor-Generalconceded that it was so and did not contend that the two sections shouldbe given a different interpretation in Ceylon. He accepted the positionthat section 25 barred all confessions to a police officer whether madein custody or outside and that section 26 applied to confessions made toothers than police officers.
The Indian decisions are referred to in such well-known commentarieson the Indian Evidence Act as Sarkar on Evidence andMonir on Evidence.It is unnecessary to cite them in this judgment. It will be sufficientif reference is made to the recent decision of the Supreme Court of Indiain State of XJtlar Pradesh v. Deoman 1. In support of the second part ofhis contention, that section 27 was a proviso to section 26 alone and notalso to section 25, lie called in aid passages in the judgments of the PrivyCouncil in cases of Narayana Sivami v. Emperor (supra) and Kottaya v.Emperor 3 which are cited below in extenso. In the former case LordAtkin observed at p. 51 et seq.—
“ In this case the words themselves declare the intention of the Legis-lature. It therefore appears inadmissible to consider the advantages ordisadvantages of applying the plain meaning whether in the interestsof the prosecution or the accused. It would appear that one of thedifficulties that has been felt in some of the Courts in India in giving thewords their natural construction has been the supposed effect on Ss. 25,26 and 27, Evidence Act, 1S72. S. 25 provides that no confessionmade to a police officer shall be proved against an accused. S.26—Ho confession made by any person whilst he is in the custody of a policeofficer shall be proved as against such person. S. 27 is a proviso thatwhen any fact is discovered in consequence of information received froma person accused of any offence whilst in the custody of a police officerso much of such information whether it amounts to a confession or notmay be proved (Here occur the words quoted earlier in this judgment). .
. It only remains to add that any difficulties to which cither the* (I960) A. I. 11. (Supreme Court) <p. 1125.- (1947) A. I. R. (P. C.) 07.
BASNAYAKE, C.J.—The Queen v. Murugan Ramasamy
prosecution or the defence may be exposed by the construction nowplaced or S. 162 can in nearly every case be avoided by securing thatstatements and confessions are recorded under S. 164. ”
In the latter case Sir John Beaumont said at p. 70—
“ The second question, which involves the construction of S. 27,Evidence Act, will now be considered. That section and the two pre-ceding sections, with which it must be read, are in these terms : ”
(Sections 25, 26 and 27 are omitted as they are the same as our sections.)
“ Section 27, which is not artistically worded, provides an exceptionto the prohibition imposed by the preceding section, and enables certainstatements made by a person in police custody to be proved. Thecondition necessary to bring the section into operation is that discoveryof a fact in consequence of information received from a person accusedof any offence in the custody of a police officer must be deposed to, andthereupon so much of the information as relates distinctly to the fact
thereby discovered may be proved
Mr. Megaw, for the Crown, has argued that in such a
case the ‘fact discovered ’ is the physical object produced, and that anyinformation which relates distinctly to that object can be proved. Uponthis view information given by a person that the body produced is thatof a person murdered by him, that the weapon produced is the one usedby him in the commission of a murder, or that the ornaments producedwere stolen in a dacoity would all be admissible. If this be the effectof section 27, little substance would remain in the ban imposed by thetwo preceding sections on confessions made to the police, or by personsin police custody. The ban was presumably inspired by the fear of theLegislature that a person under police influence might be induced toconfess by the exercise of undue pressure. But if all that is required tolift the ban be the inclusion in the confession of information relating toan object subsequently produced, it seems reasonable to suppose that thepersuasive powers of the police will prove equal to the occasion, and thatin practice the ban will lose its effect. On normal principles of con-struction their Lordships think that the proviso to S. 26, added by S. 27,
should not be held to nullify the substance of the section
…. The difficulty, however great, of proving that a fact
discovered on information supplied by the accused is a relevant fact canafford no justification for reading into S. 27 something. which isnot there, and admitting in evidence a confession barred by S. 26.Except in cases in which the possession, or concealment, of an objectconstitutes the gist of the offence charged, it can seldom happen thatinformation relating to the discovery of a fact forms the foundation ofthe prosecution case. It is only one link in the chain of proof, and theother links must be forged in manner allowed by law. ”
442BASNAYAKE, C.J.—The Queen v. Murugan Ramasamy
The learned Solicitor-General maintained that the passages in the judg-ments of the Privy Council relied on by the appellant’s counsel were obiterand not binding on us, and he strenuously argued that section 27 was aproviso to both sections 25 and 26 and claimed that on that point theweight of Indian decisions was on his side. He referred us to some ofthem. Learned counsel for the appellant did not contend that it was notso. Those decisions too are collected in the Commentaries mentionedabove and need not be referred to here. The most recent pronouncementon the subject is in the judgment of the Supreme Court of India in the caseof State of Uttar Pradesh v. Dcoman (supra). As the question whether inour Evidence Ordinance too section 27 should be read as an exceptionto section 26 alone or to sections 25 and 26 does not arise for decision inthe instant case, we refrain from expressing our opinion on that questionalthough the matter was argued at length on both sides.
Before we part with this part of the case it would not be out of placeto refer to the decision of the Privy Council in Nazir Ahmad v. King-Emperor 1 which has a bearing on the words in section 26 “ unless it bemade in the immediate presence of a Magistrate ”. There Lord Rocheexpressed the view that under the Indian Code the only procedure forrecording a statement to a Magistrate before the commencement of aninquiry or trial was that prescribed in sections 164 (our section 134) and364 (our section 302). His reasons are illuminating and bear repetitionin extenso as they are germane to the matters discussed above. He said :
' “ …. where a power is given to do a certain tiling in a certain
way the thing must be done in that way or not at all. Other methodsof performance are necessarily forbidden. This doctrine has often beenapplied to Courts—Taylor v. Taylor, 1 Ch. D. 426 at p. 431—andalthough the Magistrate acting under this group of sections is not actingas a Court, yet he is a judicial officer and both as a matter of construc-tion and of good sense there are strong reasons for aj>plying the rulein question to S. 164.
On the matter of construction Ss. 164 and 364 must be looked at andconstrued together, and it would be an unnatural construction to holdthat any other procedure was permitted than that which is laid downwith such minute particularity in the sections themselves. Uponthe construction adopted by the Crown, the only effect of S. 164 is toallow evidence to be put in a form in which it can prove itself underSs. 74 and SO, Evidence Act. Their Lordships are satisfied that thescope and extent of the section is far other than this, and that it is asection conferring powers on Magistrates and delimiting them. It isalso to be observed that, if the construction contended for by the Crownbe correct, all the precautions and safeguards laid down by Ss. 164 and364 would be of such trifling value as to be almost idle. Any Magistrateof any rank could depose to a confession made by an accused so longas it was not induced by a threat or promise, without affirmativelysatisfying himself that it was made voluntarily and without showing
1 (1936) A. I. R. (Privy Council) 253.
BASNAYAKJE, C.J.—The Queen v. Murugan Ramasamy443.
or reading to tlie accused any version of what he was supposed tohave said or asking for the confession to be vouched by any signature.The range of magisterial confessions would be so enlarged by thisprocess that the provisions of S. 164 would almost inevitably bewidely disregarded in the same manner as they were disregarded in. the present case. ”
The next question that arises for decision is whether the convictionshould be set aside on the ground of the improper admission of SergeantJayawardene’s evidence, or whether, while upholding the point taken bylearned counsel, the appeal should be dismissed on the ground that nosubstantial miscarriage of justice has actually occurred. The onus ofsatisfying us that no substantial miscarriage of justice has actuallyoccurred in a case in which the point raised in appeal is decided in favourof the appellant is upon the Crown. In the instant case the Crown hasfailed to satisfy us that no substantial miscarriage of justice has actuallyoccurred. What is more—the material before us discloses that a substan-tial miscarriage of justice has actually occurred.
. We now turn to that aspect of the case. In the first place there is noevidence that the parts of a gun dug up from a rubbish heap near line No. 6are the parts of the crime gun. Sergeant Jayawardene who says herecovered the gun from the rubbish heap says that he did not at any stagetry to rc-assemble the gun and that he produced it in the Magistrate’sCourt in three parts. The analyst’s evidence is that PI which wasproduced at the trial was received by him in a parcel marked ‘ X ’ andwas in working order. There is no evidence that the parts of a gun recover-ed by Sergeant Jayawardene constituted a gun that could be fired. Noris there, any evidence that PI constitutes a gun formed from the partsrecovered from the rubbish heap. In the absence of such evidencethere cannot be said to be proof that the gun PI consists of the parts of agun recovered from the spot pointed out by the appellant and no inferenceagainst him can be drawn from the circumstance of his pointing out anddigging up the rubbish heap near line No. 6. What is more—Jayawardene’sevidence that the appellant said in, a statement ■which he volunteered,“ I am prepared to point out the place where the gun and the cartridgesare buried ”, has gone to the jury as containing a reference to the crimegun. In his surdming-up the learned Judge said :
“ … in the afternoon of 1st September this accused, after he
had been arrested, took Jayawardana along to some place near lineset No. 6 and there dug up the earth underneath which Jayawardanafound this gun Pi, at that time in tliree parts along -with some bagcontaining 14 live cartridges. ”
Again later on in his summing-up he said :
“ …. Jayawardana took the accused away and according to
Jayawardana, the accused made a certain statement to him in thecourse of which, the accused told him that he could point out the place
BASNAYAKE, C.J.—The Queen v. Murugan Ramasamy
where the gun and cartridges were buried. If you believe Jayawardanathat is a question of fact, you can understand the police not wastingany time thereafter. Jayawardana says he at once took him to lineISTo. G and at a certain spot which was indicated by the police, theaccused himself dug up the earth and underneath that there was thisgun in a gunny bag in three parts and there was another bag containing14 live cartridges which are productions in this case
Well, the defence has challenged Jayawardana and said he is nothingmore than a liar in uniform. That is the suggestion. The defencealternatively argues, even if that suggestion of the defence is notaccepted, but Jayawardana is believed when he says that the accusedpointed out the gun, the statement of the accused is that he couldpoint out a place where a gun and cartridges are buried. The defencetherefore argues, that means nothing more than that the accusedwas aware of where a gun and cartridges were buried, not necessarilyburied by him. I did not understand the prosecution as placing the caseany higher than placed by the defence counsel himself. The prosecu-tion does not say that it proves anything more than showing a placewhere a gun and 14 cartridges were buried, and this was about 3-25 or3-30 that the cartridges were unearthed. ”
It was urged by learned counsel that the repeated reference both inthe evidence and the summing-up to the gun and this gun was gravelyprejudicial to the appellant if Jayawardcnc’s evidence was meant toprove nothing more than that the appellant was aware of where a gunand cartridges were buried, not necessarily buried by him. He furthersubmitted that the way in which the evidence was presented to the juryis likely to have had the effect of influencing the jurors to attach thatamount of weight which they might not otherwise have attached to theevidence of Piyadasa, Heen Banda and Juwanis. In our opinion thissubmission is well-founded.
In the course of the argument there emerged a fact which, if it receivedsufficient attention at the trial, is likely to have altered the whole courseof events. Sergeant Jayawardene in his examination-in-chief, which isreproduced earlier in this judgment in connexion with the discussion of theadmissibility of the appellant’s statement to him, stated that it was afterhe had recorded the statement which the appellant volunteered to makethat he took him to line No. 6, that the appellant pointed out a spot tohim and dug up a heap of rubbish in which he discovered a gun brokeninto three parts and a cloth bag containing twelve 12-bore cartridges.In cross-examination he gave an entirely different version as would appearfrom the following questions and answers :
“ 934. Q : At what time did you commence to record the accused’sstatement 1
A : After the discovery of the gun and cartridges.
935. Q : At what time did you record it ?
A : At 3.10 immediately on arrival at the estate.
BASNAYAKE, C.J.—The Queen v. Murugan Ramxsamy
930. Q : That is before or after the discovery of the gun 1A : Before the discovery of the gun.
Q : You know now that it was after the discovery of the gun ?
A : That was a mistake when I said that.
Q : I make a further allegation against you. I say that the
accused never produced this gun to you ?
A : No.
Q : He never pointed it out to you ?
A : He did.
Q : He never made a statement to that effect to you ?
A : He did. ”
Later on in answer to the presiding Judge he said :
“ 991. Q : Have you made an entry in regard to the finding of thegun by you ?
A : Yes.
Q : Before that have you made an entry in regard to any
statement made to you by the accused ?
A : Yes.
Q : Can you refresh your memory from what you have
recorded and say whether it was after the accusedhad told you that he could point out the place wherethe gun and cartridges were buried or before he toldyou that he could point out the place where the gunand cartridges were buried that you went to a certainplace near line No. 6 ?
A : Before the discovery of the gun and cartridges.
Q : After the discovery of the gun I take it that you made a
record of that fact in your diary ?
A : Yes.
Q : After that was done did you take statement of the
accused “?
A: No.
Q : After making a record of the finding of the gun did
you settle down to recording a statement of theaccused ?
.A : Not after the discovery.
(The Sergeant’s diary is marked C by Court.)
44GBASNAYAKE, C.J.—The Queen v. Mururjan Ramasawy
Q : At page 144 of your diary did you begin making a state-ment in regard to the circumstances in which the gunwas discovered by you ?
A : Yes.
99S. Q : And does that entry in regard to the discovery of theguu run into page 145 as well ?
A : Yes.
Q : And after that entry has been concluded did you record
the statement of the accused as well ?
• A : Yes.
Q : Before the discovery of the gun had you questioned
the accused ?
A : I have.
Q : And have j ou recorded that fact before you began
making statement in regard to the discovery of thegun ?
A : Yes. ”
Under examination by the learned Judge, Sergeant Jayawardene wentback on the position he had stoutly maintained in cross-examination.The repeated reversal of his evidence as to the sequence of events in regardto the finding of the gun and recording of the appellant's statementgreatly impaired the value of Sergeant Jayawardene’s evidence. Whatis more—even this final version is contradicted by his own notes of theinquiry which were produced and marked in the proceedings at the in-stance of the learned trial Judge. The record begins :
“ On Monte Cristo Estate I interrogated the suspect at length andsuspect says that he could point out the place where the gun andcartridges used for the shooting arc buried and volunteers to make astatement : ”
This record contradicts his evidence given in examination-in-chief thatthe appellant volunteered to make a statement. The record then proce eds:
“ I am now leaving with the P. CC. 4358. 7320, 5617, and suspectBamasamy to trace the gun.
9.60 at 3.25 p.m. Monte Cristo Estate. Line No. 0. SuspectBamasamy points out to me a place in the garden opposite line No. 6and dug out the spot. Here I find a Wembley and Scott S. B. B. L.12-bore gun barrel No. 10973 in three parts wrapped in an old gunnysack and 14 cartriges 12-borc in an oil cloth bag ranging as follows :2 S. G., 2 No. G, 2 No. 3, 7 No. 4 and 1 E. N. filled 12-bore eartriges.I smelt the b err el and there is a smell of gun powder and re cent foulingin the berrel. I tied both ends covered with paper. I here take charge
BASNAYAKE, C.J.—The Queen v. Murugan JRamasamy
447 .
of them as productions. Here there is (?) a shrub (sic) jungle in the vici-nity. I now proceed to record his statement. Ramasamy alias BabunRamasamy, s/o Murugan, age 48 years, labourer of line No. 9 MonteCristo Estate states :‘ This morning about 8 a.m. I was in my line
room. At this time I heard the shouts of people towards the upperline where I am residing. I came out and saw about 50 to 100 peoplecollected outside the lines and there was pelting of stones. Just thenI heard the report of a gun in the direction of Dhoby’s line. I thencame running to line No. 6 through fear. As X came running to lineNo. 61 again heard the report of a gun towards the line of the mechanic.At the time I saw about 40 to 50 men and women including strikersand non-strikers shouting. As I come to the (verandah) back veran-dah 1 found a 12-bore gun broken lying on ground and some cartridgesin an oil cloth bag. I broke the gun into three pieces, picked up agunny sack and wrapped the parts of the gun with the bag ofcartridges buried in the garden opposite line No. 6. I am prepared topoint out the place where the gun and cartridges are buried. I denyhaving shot at anyone. I am one of the strikers. This is all I haveto state. Read over and explained and admitted to be correct. ’
I am now leaving with P.CC. 4358, 7326 and 5617 and suspectRamasamy to trace the gun. 3.25 p.m. Monte Cristo Estate oppositeline No. 6. On the statement made by Ramasamy I recovered oneS. B. B. L. 12-bore Wembley & Scott gun No. 10973 broken in threeparts, barrel, butt and hand guard wrapped in an old gunny sack andone oil cloth bag containing 14 cartridges 12-bore ranging as follows :
2 S. G., 2 No. 6, 2 No. 3, 7 No. 4 and one F.N. filled 12-bore cartridges.
> I found them buried in the garden where shrub jungle is found. Ismelt the barrel. It is smelling of fouling and gun powder. I find thebarrel fouled and signs (?) of recent firing. I have (tied) covered andtied both ends and taken charge as productions. At 4.20 p.m. I pro-: ducedthe productions, gun and cartridges, and the suspect Ramasamybefore I. P. ”
– Sergeant Jayawardene’s evidence when c ompared with what is recordedin his note-book discloses a reprehensible attempt on his part at suggestio.falsi et suppressio veri. His notes speak of the. same gun being discoveredtwice, once before and a second time after the appellant’s statementwas recorded. In the first case he says that the appellant pointed outthe spot where the gun lay buried and in the second case he purports tohave discovered the gun on the information received from him. Thetwo statements are irreconcilable and his evidence on the point far fromsolving the confusion makes •“ confusion worse confounded”. In exa-mination-in-chief he said that he found the gun after recording thestatement of the appellant. In cross-examination he first said that hecommenced to record the appellant’s statement after the discovery ofthe gun and cartridges (Q. 934). He next said that he recorded thestatement before the discovery of the gun (Q. 936). He then said thathe made a mistake when he said that, the statement was recorded after
BASKA.YAKE, C.J.—The Queen v. Murugan Ramasainy
the discovery of the gun (Q. 937). In answer to the question (Q. 993),whether it was after the appellant had told him that he could point outthe place where the gun and cartridges were buried or before he told himthat he could point out the place where the gun and cartridges wereburied that he went to a certain place near line No. 6, he said that it wasbefore the discoveiy of the gun and cartridges and that after the dis-covery he made a record of that fact in his diary. Further answeringhe also said that he did not take a statement of the appellant after hemade the record relating to the discovery of the gun (Q. 995) and thathe did not after making a record of the finding of the gun settle down torecording a statement of the appellant after the discovery of the gunand cartridges (Q. 996). In answer to questions 997, 998, 999, 1000 and1001 he reversed what he had said before. All this shows what an un-reliable witness the Sergeant is. He was either deliberately misleadingthe Court by giving his evidence a complexion which was prejudicial tothe appellant or was so confused that he was unable even with theassistance of the written record to give a consistent and unbiased accountof what he did that day. Now the learned Judge omitted to warn the jurythat they should approach his evidence with caution as he had contra-dicted liimself so many times in the course of his evidence on a vitalpoint in the case. Of the two statements recorded as coming from theappellant in regard to the gun and cartridges, one does not indicate thatthe appellant was the person who used the gun while the other carriesthat implication. Tire Crown sought to prove the one implying guiltwhen in the course of that very statement the appellant had stated thecircumstances in which he found the gun and denied that he shot anyone.'
It is difficult to escape the conclusion that the prosecution has notbeen conducted in the instant case noth that fairness and detachmentwith which prosecutions by the Crown should be conducted. With thestatement of the appellant, in which he had expressly denied that heshot, before Iiim, learned Crown Counsel, despite the learned trial Judge’swarning of the perils of the course he was seeking to adopt, insidiouslypersisted in placing before the jury a statement alleged to be made bythe appellant which, when taken out of its context, tended to createthe impression that lie had confessed to the crime and that he had hiddenthe crime gun himself after the shooting by him.
That, officers on whom the Court is entitled to rely for assistance inthe administration of Justice should consciously seek to mislead it, isdeplorable. There is no question that the appeal must be allowed andthe conviction quashed, and we accordingly do so and direct a Judgmentof acquittal to be entered.
Accused acquitted.