117-NLR-NLR-V-58-THE-QUEEN-v.-S.-H.-CICILIN.pdf
[Assize Court-]
1958
Present : Gunasekara, J.
THE QUEEN v. S. H. CICILIN
<S'. G. 1 (Southern Circuit, 2nd Criminal Sessions)—M. G. Balapitiya, 14,S32
Confession—Criminal Procedure Code—Section 134 (3)—“ Voluntarily ”—EvidenceOrdinance, s. 24.■
A confession is made “ voluntarily ” within tho meaning of section 134 (3)of the Criminal Procedure Code if it is made in circumstances that do notrender it inadmissible by reason of the provisions of section 24 of the EvidenceOrdinance.
OrUER- made ill the course of a trial before the Supreme Court-.
II. C. Jayalilcika, Crown Counsel, for the Crown.'
Siva Rajarainam, with Douglas Wijeratne, for the accused.
Cxir, adv. vult.
September 26, 1956. Ggxasekara, J.—
The accused woman is being tried on a charge of having committedthe murder of a woman named Sirimal Nona on the 2Gth February last atHirikumbura-Mcegaspitiya in the judicial division of JBalapitiya. Thelearned counsel for the defence objected to the admission of tho documentP16, which is a record of a proceeding under section 134 of the CriminalProcedure Code, in which the accused made a confession to the Magis-trate of Balapitiya. I overruled the objection and said that X wouldgive my reasons later.
The section provides in subsection (1) that any magistrate may recordany statement made to him at any time before the commencement of aninquiry or trial, and in subsection (3) that no magistrate shall record anysuch statement being a confession unless upon questioning the personmaking it he has reason to believe that it was made voluntarily. Theground of the objection was that the magistrate did not probe sufficientlythe accused’s motive for making the confession before he concluded thatit was made voluntarily. It was contended that if the magistrate in hisquestioning of the accused had investigated her motive in the light of thefacts that were already befox-e him it might well have turned out that herconfession was not voluntarily made.
These facts, so far as they had been elicited in evidence at the time ofmy order, were as follows. The homicide was reported to the magistrateby the Uragaha police on the 26th February, and he visited the scene at3.15 p.m. on the same day. The deceased’s body lay in a pool of bloodon the floor of her house with a cut wound on the nape of the neck. Themagistrate recorded the available evidence and directed that the caseshould be called before him on the next day. On the same afternoon thepolice took into their custody the accused’s father Kaluneris and herhusband Addin (or Edwin) as persons suspected of the murder. Theywere produced before the magistrate on the 27th and remanded to thecustody of the fiscal until the 6th March. On the 27th the police alsoproduced before the magistrate what they alleged was a bloodstainedshirt that had been found in Addin’s house, a specimen of the deceased’sblood and scrapings from the floor of the room in which her body wasfound. These things were ordered to be sent to the Government Analystfor a report, by tho 19th March, as to whether the shirt was stained withblood of the same group as the deceased’s and whether it was also stainedwitfi a substance of the same kind as a substance alleged to be presentin the scrapings. In the early hours of the morning of the next day theaccused was arrested in her parents’ house at Hirikumbura and taken toher own house and thence to the Uragaha police station, a few milesaway. Later, at 9.30 a.m. she was produced -before the magistrateat the court-house in Balapitiya by an assistant superintendent of police,who told the magistrate that she "wished to make a confession.
It was as a result of information given to tho police by a brother ofKaluneris, a man named Charlis, that the accused was arrested. Itappears that on the night of the 27th February, at some time after 8.30p.m., Charlis interviewed her at the house of her parents, where she wasstaying after her husband’s arrest, and then went to tho Uragaha police
station with a brother of hers and made a statement- to the effect that shehad confessed to him that the deceased had been killed by her. Charlis’sstatement was recorded by a sub-inspector of police, Ibrahim, at 11.40p.in. The sub-inspector then went to the accused’s parents’ house atHirikumbura, which he reached at 1.45 a.m., and arrested her there.It- appears from evidence given by Mr. Ibrahim before me, in the absenceof the jury, that before he took her into custody he questioned her and shemade a long and circumstantial statement to him in which she confessedthat she had killed the deceased.
According to Charlis’s evidence the accused made a confession to himin reply to a question as to whether she knew anything about SirimalNona’s death. He denied that he had said anything to her with theobject of inducing her to confess. But according to Ibrahim, in thestatement that Charlis made to him at the police station Charlis said thathe had asked the accused “ to speak the truth if she had committed themurder ”, and had said that if she spoke the truth lie would “ saveher from that ”. Charlis denied that he had said such a thing in hisstatement to the police. I accept Ibrahim’s evidence on this point,but there is no evidence .of the truth of what Charlis stated to him.There is no evidence that Charlis asked the accused to speak tho truthif she had committed the murder or that, he said he would save her ifshe spoke the truth.
It was suggested to Charlis in cross-examination that he had advisedthe accused “ that she should confess to this murder ”, and had told herthat if she did so her father and her husband would be released, insteadof being hanged for murder, and she, being a woman, would be sentencedto a year’s imprisonment, and also that he himself and Kaluneris andAddin would “ save her ”. These suggestions were denied by Charlisand there is no evidence that contradicts his denial. The burden is onthe prosecution, however, to show that the'making of a confession that itseeks to prove has not been caused by suck an inducement, threat orpromise as is referred to in section 24 of the Evidence Ordinance, and lamnot satisfied with Charlis’s denial. It- seems to me that it is not unlikelythat Charlis did seek to induce the accused to make a confession bypointing out to her the advantages of such a course and by telling herthat he and her father and her husband would t; save her ”. But Charliswas not a person in authority ” within the meaning of section 24 of theEvidence Ordinance. Therefore an inducement or promise proceedingfrom him cannot render the confession obnoxious to this section unlessit proceeded from him “ in the presence of a person in authority and withhis sanction ”.
Tho suggestions to which I have referred were mafic in the cross-examination of Charlis on his evidence about the confession alleged to havebeen made to him on the night of the 27th February, and they relate towhat passed between him and the accused before the latter was interviewedby sub-inspector Ibrahim. There is no evidence that he offered anyinducement or made any threat- or promise to the accused in the presence ofany person in authority. It was not even suggested in cross-examinationthat any such thing happened ; although both he and Ibrahim admitted
that lie was present when the accused’s statement was taken byIbrahim, and he further admitted that he had gone to the magistrate’s■court later that morning with the accused in the police van that took herthere. According to the evidence of the sub-inspector, from the time■when he met the accused at 1.45 a.m. on the 2Gth February until hoproduced her before the magistrate at about 9.30 a.m. she was withinhis view practically all the time, and no one offered her any inducementor threat or promise. In the absence of any evidence or even a-suggestion to the contrary I see no reason to doubt the truth ofwhat Ibrahim has said on this point. On the material before me I am ofopinion that the making of the confession was not caused by such aninducement, threat or promise as would render it inadmissible in terms•of section 24 of the Evidence Ordinance.
Mr. Rajaratnam contended that an adequate probing of the accused’smotive for making the confession might well have revealed that whatmoved her to confess was a belief that if she did so her father and herhusband would be released and she herself would be dealt with leniently.
I agree with this contention, but I do not agree that a confession so moti-vated would not be one made “ voluntarily ” within the meaning of•section 134 of the Criminal Procedure Code. The learned counsel wasnot able to refer mo to any authority on the question of the meaning ofthe term as used in this section. In my opinion a confession is made<< voluntarily ” if it is made in circumstances that do not render itinadmissible by reason of the provisions of section 24 of the EvidenceOrdinance, which enacts a principle of the English law that a confessionis admissible in evidence only if it is made voluntarily. In the onlycase that was cited to me, R. v. Rankamy , there appears to be nothingthat conflicts with this view. It was held upon the facts of that■case that a magistrate who purported to record a confession undersection 134 of the Criminal Procedure Code “ should have probed withthe greatest care into the motives which led the accused to make thisstatement ” ; apparently for the reason that there was a possibility thatthe hope of a conditional pardon had been held out to him by the policeto induce him to make a confession. A confession which might wellhave been procured by such an inducement would have been inadmissibleby reason of the provisions of section 24 of the Evidence Ordinance.
It does not appear from the report of the case whether any evidencewas led at the trial to explude that possibility. In the present case, asI have already said, I am of opinion that the confession is not obnoxious•to section 24 of the Evidence Ordinance.
For these reasons I admitted the document PI6 in evidence.
Object ion. overruled