030-NLR-NLR-V-61-THE-QUEEN-v.-R.-A.-WILBERT-PERERA-et-al.pdf
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BASNAYAKE, C.J.—The Queen v. Wilberl Perera
[ IN’ THE G-OTTRT OF CRIMINAL AfPBAL ]
Present: Basnayake, C. J. (President), Pnlle, J., and Sinnetamby, J.T h 1C QUEEN v. It. A. WILBERT PERERA et al.
Appeals 6-8 of 1957, with Applications 7-11
G. 29—M. G. Gampaha, 23,718
Confession—Procedure for recording it—Memorandum, at foot of record—Effect of notobserving prescribed form—Criminal Procedure Code, s. 13d.
Where a Magistrate purported to record a confession, under section 134 of theCriminal Procedure Code but omitted to read over the statement himself to theperson who made it and to state that the confession was voluntarily made—•
Meld, that the amission could be supplied by the oral testimony of theMagistrate. The memorandum prescribed under section 134 cannot beregarded as laying down an imperative procedure that must be observed to theletter.
A
xiPPEATiS against certain, convictions in a trial before the SupremeCourt.
Ivan Perera (Assigned), for the 1st Accused-Appellant and Applicant.
J.V. G. Nathaniel (Assigned), for 2nd Accused-Applicant.
Norman Abeysinghe (Assigned), for 3rd A ccused-Appellant and Applicant.Joseph St. George, for 4th Accused-Appellant and Applicant.
K.Charavanamuttu (Assigned), for 5th Accused-Applicant.
April 9, 1957. Basnayake, C.J.—
The five appellants were indicted on charges of conspiracy to commitrobbery on the 2nd of March 1955. The facts shortly are that theappellants waylaid a lorry in which one Samaradiwakara, the Manager ofa Co-operative Store, was travelling to Colombo with a sum ofBiS. 30,529 ■ 89 in cash to be deposited in the Bank and robbed the money.
The 1st accused's appeal does not raise any ground of law or factwhich may properly be urged in this Courb, nor does the 2nd accused'sappeal raise any such ground. We therefore dismiss their appeals.
In regard to the 3rd accused, learned counsel submits that the con-fession made by him to the Magistrate had not been recorded by him inthe manner prescribed by section 134 of the Criminal Procedure Code.
The appellant volunteered to make a statement to the Magistrate andwas given time to reflect. When even after reflection the appellantexpressed a desire to make a statement he was questioned by the learnedMagistrate as follows :—
Q.What is your object in making this statement %
Do you expect any benefit by making this statement ?
A. This is a plea for mitigation.
BASK"AYAKE, C.J.—The Queen v. Wilbert -Pcrera
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Q. Do you know that I am the Magistrate of Gam pah a ?
A. Yes.
Q. Are you making this statement ■voluntarily and of your own freewill ?
A. Yes.
The Magistrate thereupon proceeded to record the appellant’s statement.The statement was made in English, but the record does not show bywhom it was taken down. It was read over to the appellant by theInterpreter Mudaliyar and signed by the appellant. At the end theMagistrate appended the following certificate :—
I hereby certify that the above record is a statement made byG. Morawaka and that it contains the whole of the statement made byhim. The statement was made by the deponent in English and it wastaken down while he was making his statement. The statement wasread over by the Interpreter Mudaliyar to the deponent who admittedthat the statement was correctly recorded.”
The above certificate is not in accordance with that prescribed insection 134. The following words were omitted :■—
“ (a) I believe that this statement was voluntarily made.”
“ (6) It was taken in my presence and hearing and was read over byme to the person making it.”
It is not clear why the Magistrate departed from the prescribed form.The prosecution sought to supply the omission by calling the Magistrateas a witness. He testified to the fact that he believed that the statementwas voluntarily made.
Learned counsel for the 3rd accused contends that the omission of thewords at (a) above rendered the confession inadmissible. He relied onthe Indian case of Nazir Ahmad v. King Emperor 1, where it was held bythe Privy Council that a confession made to a Magistrate is inadmissibleunless it is recorded in conformity with section 164 of the Indian CriminalProcedure Code which is the section which corresponds to our section 134.
In the case on which counsel relies it was conceded that the Magistrateneither acted nor purported to act -under section 164 or section 364 of theIndian Criminal Procedure Code and nothing was tendered in evidence asrecorded or purporting to be recorded under either of those sections. Theinstant case is different. The Magistrate purported to and did in fact actunder section 134; but he failed to read .over the statement himselfto the appellant and make the memorandum prescribed therein. Thatomission was supplied by bis evidence and in our view the confession wasrightly admitted in evidence.
The case of Earn Sanchi v. Emperor 2 supports our view. There it washeld that when a Magistrate omitted to certify that he believed that aconfession recorded under the corresponding section of the IndianCriminal Procedure Code (section 164) had been voluntarily made theomission may be supplied by the oral testimony of the Magistrate.
(i936) A. I. B, Privy Council 253.
* {1911) 12 Criminal Law Journal 15.
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BASNATTAKZS, C. J.—The Queen v. Wilbert Per era
We -wish to add that Magistrates should tie diligent in the observanceof the provisions of the Criminal Procedure Code in this regard and thatin the instant case the failure of the Magistrate to do so has resulted inthe waste of a good deal of public time. Besides the provisions ofsection 134 are so designed that the statement properly recordtd there-under may be proffered in evidence without the Magistrate having to becalled as a witness.
On behalf of the 4th accused it was urged that the learned Magistratehad acted contrary to the provisions of section 134 of the CriminalProcedure Code in that he had not in fact himself read over to theaccused the confession made by him.
It is clear from the certificate attached to the recorded confession thatthe learned Magistrate had not himself read it over to the accused. Itwas the Interpreter Mudaliyar who had done so. Though it wouldappear mom the form of certificate prescribed in section 134 that theMagistrate himself should read over the confession to the accused, hisomission to do so himself is not in our view such a disregard of theprovisions of the section as would make the confession inadmissible inevidence.
The requirement of section 134 (3) is that the memorandum made atthe foot of the record of the confession should be to the effect prescribedin the section. The prescribed memorandum cannot be regarded aslaying down an imperative procedure that must be observed to the letter.
Learned counsel also sought to attack the finding against the 4thaccused on the ground of unreasonableness of the verdict having regardto the evidence led against him. Ee drew our attention to variouspassages in the transcript and submitted that there was no evidence onwhich the jury could have reasonably arrived at a verdict against him.We are unable to uphold this contention. Once the confession wasadmitted there was sufficient evidence before the jury which, if believed,would have rendered the 4th accused guilty of the offences with whichhe was indicted. This accused is not entitled to succeed in his appeal.
With regard to the 5th accused it was urged that the verdict wasunreasonable and the sentence excessive. It was submitted that thejury had taken an unreasonable view of the evidence against him ascertain convictions in which he had used a revolver had been led inevidence and that he was prejudiced thereby. These convictions wereput in by the 5th accused himself in liis defence to prove that he had beenfalsely implicated in the instant ease because a revolver had been usedand that the Police were aware that he had been previously convicted ofoffences in which a revolver was used. There is no substance in thisargument and we therefore refuse the application for leave to appeal bothon the ground of unreasonableness of the verdict and on the ground ofthe sentence being excessive.
In the result the applications of all the appellants are refused and theirappeals are dismissed.
Applications and Appeals dismissed.