074-NLR-NLR-V-64-THE-QUEEN-v.-MURUGAN-RAMASAMY.pdf
The Queen v. Murugan Ramaeamy
433
[In the Count of Criminal Appeal]
1982 Present: Basnayake, C.J. (President), Tambiah, J., Herat, J.,Abeyesnndere, J., and G. P. A. Silva, J.
THE QUEEN v. MURUGAN RAMAEAMY
Appeal No. 2 op 1962, with Application No. 2
S. C. 14—M. C. Gampola, 3,082Court of Criminal Appeal—Statement (oral or loritten) made by accused to police officerduring investigation of a cognizable offence—Deposition that a fact was therebydiscovered—Inadmissibility—Criminal Procedure Code, s. 122 (3)—EvidenceOrdinance, ss. 25, 25, 27, 59, 91—Court of Criminal Appeal Ordinance, provisoto 8. 5 (I).
; In a trial for attempted murder by shooting with a gun,- a statement made bythe accused to a Police Sergeant in the course of an inquiry under Chapter XII.of the Criminal Procedure Code was admitted in evidence. The statementwas as follows :— “ I am prepared to point out the place where the gun andthe cartridges are buried ”.
Held, that the statement fell within the prohibition in section 122 (3) of theCriminal Procedure Code and could not, therefore, be admitted in evidence.A statement by an accused person containing information in consequence ofwhich a fact is deposed to as discovered is not admissible in evidence if thestatement was made to. a police officer in the course of an inquiry under ChapterXII of the Criminal Procedure Code. A statement which cannot be usedunder section 122 (3) of the Criminal Procedure Code cannot be proved undersection 27 of the Evidence Ordinance.
Per Curiam : “In the case of Buddharakkita (63 N. L. R. 433) it was heldthat section 122 (3) extends to both oral and written statements made in thecourse of an inquiry under Chapter XXL The result of the decision in Buddha-rakkita'e case is that the oral statement made to a police officer in the course ofan inquiry under section 122 can no longer be proved under section 27 (of the-Evidence Ordinance). We are in entire agreement with that decision and weare unable to agree with the decision in Bex v. Jinadasa (51 N. L. R. 529) thatalthough the written statement falls within the prohibition in section 122 (3)the oral statement does not, and may be proved under section 27 of the Evidence
OrdinanceOur decision in the instant case is in accord with
that in Buddharakkita's case, and the decision in Jinadasa's case must not beregarded any longer as binding. ”
Held further, that the onus of satisfying the Court of Criminal Appeal that nosubstantial miscarriage of justice has actually occurred in a ease in whioh thepoint raised in appeal is decided in favour of the appellant is upon the Crown.
Quaere, whether, in the Evidence Ordinance, section 27 should be read asan exception to section 26 alone or to secijionf} 25 and 26,
LXIV
2—B, 7702—1,888 (2/63)
434
BASISTAYAJSJE, C.J.—The Queen v. Murugan Ramasamy
Appeal against a conviction in a trial before the Supreme Court.
Colvin R. de Silva, with. T. W. Rajaratnam, S. S. Basnayake, S. C.Crossette-Tdmbiah, R. Weeralcoon, K. Vi/cnarajah (assigned), for Accused-Appellant.
A. C. Alles, Solicitor-General, with V. S. A. Pullenayegum, CrownCounsel, H. L. de Silva, Crown. Counsel, and V. C. Gunatillake, CrownCounsel, for Attorney-General.
Cur. adv. vult.
December 17, 1962. Basnayaxe, C.J.—
The appellant Murugan Ramasamy alias Babun Ramasamy wasindicted on a charge of attempted murder of one KammahvattegederaPiyadasa by shooting him with a gun on 1st September, 1,960. A unani-mous verdict of guilty was returned by the jury and the appellant wassentenced to undergo ten years’ rigorous imprisonment. This appeal isagainst that conviction.
The main ground of appeal urged by learned counsel for the appellantis that the judgment of the Court before which the appellant was con-victed should be set aside on the ground that a statement made by theappellant to Police Sergeant Jayawardcne had been illegally admittedin evidence.
Briefly the material facts are as follows :Piyadasa the injured man
was shot on 1st September at Monte Cristo Estate, Nawalapitiya. Theestate had both Sinhala and Tamil labourers, a section of whom hadgone on strike a few days before the shooting. The appellant belongedto the group that had gone on strike while the injured man and theprosecution witnesses Heen Banda and Juwanis belonged to the groupthat had not. The road to Nawalapitiya runs through the estate. Theman or men who shot were in a place below the road which was knownas the £ wadiya ’. Piyadasa the injured man was working along withthe witnesses Heen Banda, Juwanis and about 24 others in a section ofthe estate above the road in field No. 25 in extent about 25 acres. Theinjured man and the witnesses claimed that they were engaged in weedingat the time the firing took place. This claim was challenged by thedefence as the witnesses were unable to give a satisfactory account ofwhat happened to their tools. The witnesses say that about 10.30 a.m.the sound of some sort of commotion from the ‘ wadiya ’ attracted theirattention. "When they looked in that direction they saw the appellantand two others named Muttiah and Sinniah. The appellant had a gunand the other two had stones in their hands. As the first shot was firedthey took cover. The second shot injured Piyadasa in the region of thechest as he moved from one position to another. A diary in his breastpocket saved Piyadasa’s life as the force of the slug which struck him was
BASNAYAKE, C. J.—The Queen v. MunufiamRamasamy- 435-
broken by it. The resulting injury is described; bj^He-idbctbrtlAS^LV. alacerated wound skin deep about 1/4° long carfhe left side of the chestabout the level of the sternum. There was an abrasion *1" lone 1 /2" widearound it”. Piyadasa, Heen Banda and Juwanis'^lfo'.were^called..bythe prosecution stated that it was the second shot that caused the injuryand that it was the appellant who fired it; but Heen Banda departed’ from that position in cross-examination. He said that he did not seeany action on the part of the appellant when he heard either the secondshot or the third shot.
Learned counsel maintained that these witnesses did not see the assai-lant as they took cover after they heard the first shot, and that they werefalsely implicating the appellant. They were all cross-examined atlength on the question of identification. In support of his contention •that they did not identify the assailant learned counsel pointed to thefact that Piyadasa’s pocket diary P4 contained under the date 1st Sep-tember, 1960, not the names of Muttiah and Sinniah, but those of Jaya-sena and Mendis. He also relied on Piyadasa’s evidence which threwdoubt on his claim that he identified his assailant. When asked why hewrote the names of Jayasena and Mendis he said : “I wrote down thenames of Jayasena and Mendis on the diary because another person whowas next bed to me (sic) told me that out of the three persons whom Isaw, two people, except for Hamasamy, must be Jayasena and Mendis,and not Muttiah and Sinniah ”. When asked further whether therewas a discussion at the hospital in regard to the identity of those whoshot, Piyadasa said :
“At the time I was in the hospital there was a man injured by gun• shots in the next bed. At the time Ramasamy shot me Muttiah andSinniah were with him. Then the man who was in the next bed saidthat he including others were shot by Jayasena and Mendis and thenI thought that I must be making a mistake. ”
Piyadasa finally sought to get out of the difficulty in which he foundhimself by saying that because the man in the adjoining bed had nopaper he wrote down in his diary the names of the persons who he saidwere his assailants. But he was unable to give any clue as to who thisman in the adjoining bed was. He neither knew his name nor his where-abouts. He was also positive that he was not William the man who died-The other point made against Piyadasa’s testimony was that his state-ment to the Police was not made till 7 p.m. on the night of the shooting-The defence also made a point of the delay in recording the statementsof Heen Banda and Juwanis.
In addition to the evidence of the three eye-witnesses the prosecutionsought to prove a statement made by the appellant to Police SergeantJayawardene in the course of his inquiry under Chapter XTT of the
430
BASNAYAKE, C.J.—The Queen v. Murugan Ramasamy
Criminal Procedure Code (hereinafter referred to as the Code), and thelearned trial Judge permitted Crown Counsel to elicit the followingevidence from Sergeant Jayawardene :
“ 839.
840.
841.
842.
843.
844.
845.
846.
84S.
849.
850.
851.
Q : You told us yesterday that you took the accused intocustody?
A : Yes.
Q : And you recorded Iris statement?
A : On his volunteering to make a statement I recorded hisstatement.
Q : Please refresh your memory from the note-book ; didyou bring your note-book?
A : Yes.
(Witness refreshes his memory from the note-book.)
Q : Did the accused in the course of his statement tell youc I am prepared to point out the place where the gunand the cartridges are buried ’?
A : Yes.
Q : Thereafter did you and the accused go to a spot nearline No. 6?
A : Yes.
Q : Were the gun and the cartridges discovered?
A : Yes.
Q : Where were they discovered?
A : I took the accused to line No. 6 and the accused pointedout a spot to me. He unearthed some rubbish and Idiscovered the gun broken into three parts and a clothbag containing 12 cartridges—12 bore cartridges.
Q : Was the gun wrapped in anything?
A : It was wrapped in a gunny sack.
Q : (Shown P2). Was this the gunny bag? ,
A : Yes.
Q : It was produced in the lower Court marked P2?
A : Yes.
Q : You assembled the gun?
A : I did not assemble the gun. I examined the barrel andthere was fouling and there were signs of recent firing.
Q : You smelt the barrel?
A : Yes.
Q : It smelt fouling?
A : Yes. ”
It was suggested to Sergeant Jayawardene in cross-examination thatthe appellant did not volunteer a statement nor say that he was preparedto point out the place where the gun and cartridges were buried. It
BASKfAYAKE, C.J.—The Queen v. Murugan Ramasamy
437
was also suggested that he did not point out a spot or unearth, somerubbish as deposed to by him. The Sergeant repudiated those sugges-tions.
It was contended on behalf of the appellant that even if the statement:“ I,am prepared to point out the place where the gun and the cartridgesare buried ” had been made by him, its reception in evidence was illegal.Ijearned counsel rested his contention on the following grounds :
(а)The statement being a statement made to a police officer in the
course of an inquiry under Chapter XII cannot be used otherwisethan to prove that a witness made a different statement at adifferent time, or to refresh the memory of the person recordingit.
(б)That even where a fact is deposed to as discovered in consequence
of information contained in a statement made in the courseof an inquiry under Chapter XU, section 27 of the EvidenceOrdinance affords no authority for proving that statement.
That statements containing information in consequence of which
a fact is deposed to as discovered may not be proved in thefollowing cases :
where the statement is made in the course of an inquiry
under Chapter XU ; and
where the statement, not being one falling under (a) above,
is a confession to a police officer.
That in the instant case no fact was either discovered or deposed
to as discovered in consequence of the information received fromthe appellant and that the statement did not come within theambit of section 27.
Learned Solicitor-General contended that the gun was discovered inconsequence of the information. He submitted that although theappellant dug tip the heap of rubbish in the place where the gun was, itwas Police Sergeant Jayawardene who discovered it. He also contendedthat section. 122 (3) did not bar the proof of information, the proof ofwhich was permitted by section 27. He relied on the decisions of thisCourt in Rex v. Jinadasa 1, The Queen v. 0. A. Jinadasa 2, and Regina v.Mapitigama Buddharakkita Thera and 2 others 3.
The submissions of learned counsel for the appellant will now be dis-cussed. As they are all interconnected, they will be examined as a whole.The most important of them is that the statement being one made to apolice officer in the course of an inquiry under Chapter XH falls withinthe prohibition in section 122 (3) of the Code. We are of opinion that thatsubmission is sound and we hold that the statement “ I am prepared topoint out the place where the gun and the cartridges are buried ” comes
* (1950) 51 N. L. R. 529.8 (I960) 59 G. L. W. 97.
i3 (19G2) 63 N. L. R. 433.
2*R 7702 (2/03)
43S
BASIs AYAKE, C.J.—The Queen v. Murugan liamasamy
'within that prohibition and cannot "be admitted in evidence. Certainprovisions of law are expressly saved from the operation of section 122 (3)by tlie words :
“Nothing in this subsection shall be deemed to apply to anystatement falling within the provisions of section 32(1) of the EvidenceOrdinance, or to prevent such statement being used as evidence in acharge under section ISO of the Penal Code. ”
The rules of interpretation will not countenance the reading of section27 into, the exception created by those words. Besides such a coursecannot be adopted without violating such well-known maxims applicableto the interpretation of statutes as “ expressio unius esl exclusio alterius **(the express mention of one tiling implies the exclusion of another),“ Quando aliquid prohibetur, prohibetur et omne per quod devenitur adillud ” (when anything is prohibited, everything relating to it is prohi-bited), and “Quando aliquid prohibet ur ex directo prohibetur et per obliquum”(when anything is prohibited directly, it is also prohibited indirectly).Section 27 of the Evidence Ordinance should therefore be read as per-mitting the proof of only statements that do not fall within the prohibitionin section 122(3). In the case of Buddharahhita {supra) it was held thatsection 122 (3) extends to both oral and written statements made hi thecourse of an inquiry under Chapter XII. The result of the decision hiBuddharahhita’s case is that the oral statement made to a police officer inthe course of an inquiry under section 122 can no longer be proved undersection 27. We are in entire agreement with that decision and we arcunable to agree with the decision in Rex v. Jinadu-sa {supra) that althoughthe written statement falls within the prohibition in section 122 (3) theoral statement does not, and may he proved under section 27 of theEvidence Ordinance. The learned Solicitor-General relied on the foliowr-ing passage in the judgment of Buddharahhita’s case as approvingBex v. Jinadasa {supra) :
“ … .no decision of the Supreme Court or of this Court has
been cited to us in which it was argued and expressly decided thatstatements made by an accused person to an officer investigating acognizable offence midcr Chapter XII may be proved contrary to theprohibition hi section 122 (3) except in a case to which section 27 of theEvidence Ordinance applies. ”
We are unable to agree with his view of that passage. If the languagelends itself to such an impression, we wash, to make it clear that it shouldnot be understood as implying that the Court held that a statementwhich cannot be used under section 122 (3) may be proved under section27. Our decision in the instant case is in accord with that in Buddha-rahhita’s case, and the decision in Jinadasa’s case must not he regardedany longer as binding. It is convenient at this point to dispose ofThe Queen v. O. A. Jinadasa {supra), the other case on which the learned♦Solicitor-General relied. The questions that arise for decision here did
BASNAYAKE, C.J.—The Queen v. Murugan Ramasamy
439
not arise there, and if any passage in that judgment is in conflict withour:decision in the instant case, that case should, to that extent, beregarded as overruled.
The opinion we have formed herein is consistent with the view takenby the Privy Council on the corresponding provisions of the IndianEvidence Act and CWminal Procedure Code. In Narayana Swami v.Emperor1 Lord Atkin stated :
“ It is said that to give S. 162 of the Code the construction contendedfor would be to repeal S. 27, Evidence Act, for a statement giving riseto a discovery could not then be proved. It is obvious that the twosections can in some circumstances stand together. Section 162 isconfined to statements made to a police officer in course of an investiga-tion. S. 25 covers a confession made to a police officer before anyinvestigation has begun or otherwise not in the course of an investi-gation. S. 27 seems to be intended to be a proviso to S. 26 whichincludes any statement made by a person whilst in custody of the policeand appears to apply to such statements to whomsoever made, e.g., toa fellow prisoner, a doctor or a visitor. Such statements are notcovered by S. 162….
…. The words 6f S. 162 are in their Lordships’ view, plainly
wide enough to exclude any confession made to a police officer in courseof investigation whether a discovery is made or not. ”
In India all controversy on this topic has been silenced by the additionof section 27 to the exceptions in section 162 which is the corresponding
section of the Indian Code.
, 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.
440
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
441
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
M4
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
445
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
44S
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.