NEW LAW REPORTSOF CEYLONVOLUME LXVI
[In the Court of Criminal Appeal]
Present: Basnayake, C.J. (President), Herat, J., and G. P. A. Silva, J.THE QUEEN v. M. RATMAN FERNANDOAppeal No. 66 of 1962 with Application No. 70
S.C. 379jl961—M. C. Colombo South, 126431N
Evidence—Statement made by accused to police officer—Evidence oj omission to men-tion therein facts subsequently narrated by the accused from the witness-box—Admissibility—Evidence Ordinance, ss. 8 (2), 9. 155,—Criminal ProcedureCode, 8. 123.
Although, under section 155 of the Evidence Ordinance, the credit of a witnessmay be impeached by proof of a former statement inconsistent with any partof his evidence which is liable to be contradicted, omission to mention in theformer statement a relevant fact narrated by him in evidence subsequentlydoes not fall within the ambit of the expression “ former statement
In a trial for murder the accused, when he gave evidence, stated that he hadacted in self-defence. In cross-examination be was asked whether, in hisstatement to the police, he had mentioned about self-defence, and his answerwas that he had done so. At the close of the case for the defence, the prose-cution was permitted by the Court to call the police officer in question to giveevidence in rebuttal. In answer to questions put by Crown Counsel, thepolice officer denied that the accused, in the statement made by him, had madeany reference to having acted in self-defence.
Held, that the evidence of the failure of the accused to narrate to the policeofficer the facts which he narrated from the witness-box was not admissibleunder section 155 of the Evidence Ordinance. Nor was it admissible undersection 8 (2) or under section 9 of the Evidence Ordinance,
2R 17371—1,855 (4/64>
BASNAYAKE, C. J.—The Queen v. Rayman Fernando
Appeal against a conviction in a trial before the Supreme Court.
T.S. P. Senanayake, (assigned), for Accused-Appellant.
N. Tittawella, Crown Counsel, for Attorney-General.
October 17, 1962. Basnayake, C.J.—
The appellant was convicted of the murder of Potupitiyage MariyaIsabella Fernando, his mistress.
The evidence for the prosecution was that the accused stabbed thedeceased a number of times with a chisel he had. The defence of theaccused was that he was on his way to work and that he saw the deceasedtalking to a man on the pavement and as he approached her the man wentoff; that he questioned her, “ When the child is ill, do you do sucha thing and refuse to come also? ” ; that thereupon she started abusinghim in obscene language and afterwards seized him by his male organand squeezed it. He could not breathe in consequence and stabbed herin defence of his person a number of times.
In the course of the cross-examination of the accused he was askedwhether he, in his statement to the police, stated all the facts which hehad stated in his defence at the trial, and his answer was that he hadstated all those facts. At the close of the case for the defence the learnedCrown Counsel moved to call a witness in rebuttal. This was allowedand he called Sub-Inspector Abeysinghe. The following is the evidencegiven by him :—
“ 563. Q :You already told Court that you recorded the statement
made by this accused ?
A : Yes.
Q : When did you record this statement ?
A : On the 15th of April at 8.15 p.m.
Q : Did you record the entirety of what he had to say ?
A : Yes.
Q : Did you omit to record anything that he told you ?
A : No.
Q : Did you hear what he had to say ?
A : Yes.
Q: Did you, after recording the statement, read over the
statement to him, and explain it to him in Sinhalese ?
A : Yes.
Q : Did he admit it to be correct ?
4 * Yes.
BASNAYAKE, C. J.—The Queen v. Bayman Fernando
Q: I am referring to the statement as to what happened on
the 15th of April?
A : Yes.
Court: Bead the whole thing first. Never mind taking time,
and then answer the questions. Otherwise you might findyourself in difficulty ?
A : Yes.
Q : Has he mentioned to you that when that man was talking
to her and when he came there that man went away ?
Q : Has he also said he questioned his wife why she was talking
to people on the pavement when her child was ill ?
A : No.
Q : Has he also told you that he then went behind her and the
deceased had abused him saying f go and have intercoursewith your mother 5 ?
A : No.
Q: Did he tell you in the course of his statement that the
deceased held him by his male organ ?
A : No.
Q : Did he tell you that the deceased squeezed his private
Did he tell you that he was unable to breathe when thedeceased held him by his male organ ?
Did he mention anything about his dropping the hammerand a saw at the scene of the incident ?
A : He stated he had his carpentry tools with him.
Court: Q : Has he said anything about the hammer and saw ?
A : Yes.
Q : Did you find a hammer and a saw at the scene ?
Q : Did he complain of any pain in his private parts ?
Q • If he had complained of any pain would you have taken
him before a doctor ?
BASNAYAISLE, C.J.—The Queen v. Rayman Fernando
It was submitted by the learned counsel for the appellant that the abovequestions should not have been allowed as there is no provision of theEvidence Ordinance which permits them. Omission to state a factdeposed to in evidence does not fall within the ambit of the expression“ former statement Under section 155 of the Evidence Ordinancethe credit of a witness may be impeached by proof of former statementsinconsistent with any part of his evidence which is liable to be contradicted.The questions put to the witness are not admissible under that section.Section 155 or any other section of the Evidence Ordinance lends noauthority for the course adopted by Crown Counsel. Learned CrownCounsel sought to call in aid sections 8 (2) and 9 of ^he EvidenceOrdinance on the ground that it was proof of conduct. The formerprovision reads—
“ The conduct of any party, or of any agent to any party, to anysuit or proceeding in reference to such suit or proceeding, or in refer-ence to any fact in issue therein or relevant thereto, and the conductof any person an offence against whom is the subject of any proceeding,is relevant, if such conduct influences or is influenced by any fact inissue of relevant fact, and whether it was previous or subsequentthereto.”
and the latter reads—
“ Facts necessary to explain or introduce a fact in issue or relevantfacts, or which support or rebut an inference suggested by a fact inissue or relevant fact, or which establish the identity of anything orperson whose identity is relevant, or fix the time or place at which anyfact in issue or relevant fact happened, or which show the relationof parties by whom any such fact was transacted, are relevant in sofar as they are necessary for that purpose.”
In the instant case the- failure of the accused to narrate to theSub-Inspector the facts which he narrated from the witness-box cannotbe said to be “ conduct which influences or is influenced by any fact* in issue ”. This evidence given by the Sub-Inspector was not relevantunder section 8 (2) or under section 9 of the Evidence Ordinance.
The learned Commissioner in the course of his charge to the juryemphasised the failure of the accused to state to the police the defencewhich he sought to place before Court thus :
; “ His suggestion is that this was a clandestine affair, because, onseeing him, that man quietly slipped away. Then if that be so, wouldyou expect the accused to inform the Police about it ? He says hetold the Police, but you have the evidence of the Inspector,Sub-Inspector Abeysinghe, that the accused did not mention that factto him. Has the Sub-Inspector any reason to omit to record sucha thing if the accused had told him this ? The accused himself admitsthat he can assign no reason for the Police to omit to record it if he
BASNAYAJHD, C. J.—The Queen v. Rayman Fernando
had mentioned it. He also tried to tell you that the Inspector may nothave heard it. Did this Inspector strike you as a person who is deaf ?He has given evidence in this Court. He may have a little voicewhich may not carry very far but is he deaf—that is the Inspector?That is the question.”
The learned Commissioner later on in his charge reverted to the sametopic and stated—
“ Then the accused says that he related to the Police all this aboutthe man, what that woman did to him, about the use of indecent wordsand also her holding him by the testicles and squeezing, but you haveheard Sub-Inspector Abeysinghe’s evidence that even those matterswere not mentioned by the accused to the Inspector. Were these notimportant matters which he should have mentioned % He says thathe mentioned them. Are you prepared to accept this man’s evidencein preference to that of Sub-Inspector Abeysinghe who has no reasonto omit to record these things ? Then, is this all false or an invention,as submitted by the Crown, in order to raise a defence of an exculpa-tory or mitigatory plea ? That is a question for you. If you dis-believe the accused, when he says that these things happened on thisday before the incident, then, of course, he is not entitled to the benefitof any of the exceptions pleaded by him, either the general exceptionthat he acted within the rights given to him by law of acting in theexercise of the right of private defence, or of exceeding the right ofprivate defence, or acting under grave and Budden provocation, oracting in the course of a sudden fight.”
We are unable to hold that the jury were uninfluenced by so forciblea direction as to the effect of the evidence illegally admitted.
Apart from the fact that it is doubtful whether an accused person maybe examined by^ an officer inquiring into an offence under Chapter XIIan accused person is not bound to make a statement in the course of aninvestigation under Chapter XII. Section 123 expressly provides—
“ No inquirer or police officer shall offer or make or cause to beoffered or made any inducement, threat, or promise to any person chargedwith an offence to induce such person to make any statement withreference to the charge against such person. But no inquirer or policeofficer shall prevent or discourage by any caution or otherwise anyperson from making in the course of any investigation under thisChapter any statement which he may be disposed to make of his ownfree will.”
Were it not for the wrong direction, it was open to the jury to acceptthe version of the accused. If they were given the correct direction andthe jury were allowed to return their verdict on such a direction,
2*R 17371 (4/64)
Stratheden Tea Co. Ltd. v. Selvadurai
the verdict might have been one of culpable homicide not amountingto murder. We accordingly substitute a verdict of culpable homicidenot amounting to murder for the verdict of murder.
In view of the ferocity of the attack on the deceased, we think nothingshort of 12 years’ rigorous imprisonment would meet the ends of justiceand we accordingly substitute for the sentence of death the sentence of.12 years’ rigorous imprisonment.
THE QUEEN v. RAYMAN FERNANDO