108-NLR-NLR-V-54-V.-THURAISAMY-Appellant-and-THE-QUEEN-Respondent.pdf
GT7XASEBLARA J.—Thuraisamy v. The Queen
440
[COURT OF CbIMETAL APPEAL]
1952Present: Gunasekara J. (President), Pulle J. and Swan J.
V. th 11 K.ATKAMV, Appellant, and THE QUEEN, RespondentAppeal 51 with Application 81S. G. 11.—M. C. Mannar, 13,646
Criminal Procedure Code—Evidence in rebuttal—Section 237(1)—Scope of—Evidence Ordinance, s. 155._
Accident—Burden of proof—Misdirection—Penal Code, s. 73.
Evidence of admissible admissions by the accused that could have been givenbefore the close of the case for the prosecution cannot be given subsequentlyas evidence in rebuttal to impeach the credit of the accused as a witness.
In a trial for murder by shooting the fact that the accused gives evidence tothe effect that the gun went off accidentally does not place on him a burdento satisfy the jury that his version is probably true. The question is not whetherthere are circumstances bringing the case within the exception of accidentbut whether the prosecution has proved that the accused fired the gnn intention-ally, and he is entitled to be acquitted if there is a reasonable doubt od thatpoint.
A
aA-PPEAL, with application for leave to appeal, against a convictionin a trial before the Supreme Court.
Y. S. A. Pullenayagam, for the accused appellant.
J. G. T. Weeraratne, Crown Counsel, for the Crown.
October 15, 1952. Gdnasekaea J.—
At the close of the argument in this case we quashed the convictionof the appellant and ordered a new trial, and we said that we wouldgive our reasons later.
The appellant, a man of 27, was convicted of the murder of a youngwoman of 17 named Mariyai by shooting her. He was a servant inthe employ of a landowner named Soosapillai living in the village ofManalkoddai in Mannar. The deceased too lived in that village withher parents ; and a young man named Subramaniam, to whom she wasengaged to be married, lived with them in the same house. At about8 a.m. on the 20th March last when the deceased was in her garden shewas fatally wounded by the discharge of a shotgun which belongedto Soosapillai’s father Roche and was in the appellant’s hands at thetime. Hearing the report of the gun and a cry of distress, Subramaniamran up from a vegetable plot close by, and the appellant shot at him,wounding him on a leg, and ran away. At the trial the appellant gaveevidence to the effect that the gun went off accidentally and woundedthe deceased, and that he shot at Subramaniam in- self-defence when
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GTTNASEK ABA J.—Thuraisamy v. The Queen
the latter came at him with an uplifted mammoty. The main groundsof appeal relate to the admission in evidence of certain statementsalleged to have been made by the appellant about his relations withthe deceased and' about a visit early that morning to Roche’s housewhere Soosapillai was living, and to the presiding judge’s directionson the effect and bearing of that evidence and on the burden of proof.
The prosecution closed its case without adducing evidence of anyfacts constituting a motive for the alleged murder. For proof thatthe appellant shot the deceased intentionally it relied in part uponevidence to the effect that on the morning of that day, before theshooting, the appellant had taken the gun from Roche’s bedroom inthe absence of both Roche and Soosapillai from their house. Thisevidence was given by a woman named Sinnamma, of Pallimunai, whoclaimed to have been at Roche’s house that morning. The appellantdenied the truth of this evidence and said that on the contrary Soosa-pillai himself had given him the gun and three cartridges early thatmorning and ordered him to go to Soosapillai’s fields and see if theyhad been damaged by cattle and elephants. In cross-examination itwas put to him by crown counsel that he had been on very friendlyterms with the deceased, that she had promised to marry him, and thattwo weeks before her death he had asked her to marry him. Hedenied these suggestions, and also denied a further suggestion that onthe 21st March he had made the statements in question to a police officer.After the close of the case for the defence the crown counsel, with theleave of the presiding judge, called a police sergeant named Jayawardeneto give evidence in rebuttal of this denial. This witness said that theappellant made a statement to him at 7.35 a.m. on the 21st March inthe course of which he said :
“ About 5 or 6 months ago I came into terms of intimacy withdeceased Maryai. She promised to come along with me. Abouttwo weeks ago I saw her passing my house and I questioned herwhether she would keep to her promise and come along with me.I asked this from her because I learn that she is to be given in marriageto one Suppramaniam who is staying in her house. She then toldme not to speak of any marriage or intimacy with her. I becamehurt and disappointed.”
and that later in the statement the appellant also said—
“ The following morning namely the 20th instant about 7 a.m.I went to the house of Soosapillai. He and his wife were not at home,there was only Pallimunai woman. Name not known to me.”
The point is taken in the grounds of appeal that the admission ofthis evidence was obnoxious to the provision in section 25 (1) of theEvidence Ordinance (Cap. 11) that no confession made to a police officershall be proved as against a person accused of any offence. Mr. Pulle-nayagam preferred however to base his case upon an argument thateven otherwise the use that was made of the evidence resulted in amiscarriage of justice.
GUXASEKAItA J.—Thuraiaamy v. The Queen
451
If the admission of these statements was obnoxious to section 25 (1)there can be no question that the conviction could no't stand. If it wasnot, then it was open to the prosecution, under section 21, to prove themas admissions of relevant facts, and the question arises whether in viewof this circumstance there was a proper exercise of the learned judge’sdiscretion when he granted the crown counsel leave to call a witnessto prove them after the close of the case for the defence.
After the defence has closed its case the prosecuting counsel may,in terms of section 237 (1) of the Criminal Procedure Code (Cap. 16),by leave of the judge, call witnesses in rebuttal. The principles uponwhich a judge should exercise his discretion to grant or refuse such leave,or should of his own motion take any evidence after the close of thecase for the prosecution, have been laid down in several cases. It hasbeen observed more than once, as was said by Abrahams C. J. in Vanden-driesen v. Houwa Umma,1 “ that evidence for the prosecution shouldnot be taken after the case for the prosecution has been closed, whensuch evidence will have the effect either of filling in a gap left in theevidence or resolving some doubt in favour of the prosecution”. Evi-dence in rebuttal should be permitted only in a case where a matterhas arisen ex improviso (12. v. Charles.2) or the evidence was not admis-sible before the prosecution case was closed (R. v. Ahamadu Ismail 3).
The ground upon which the prosecution was allowed to call a witnessin rebuttal in the present ease is stated in the learned judge’s order asfollows :
“ In the interests of justice the court should allow this evidenceto be led because the court must see that such evidence as is permis-sible is led which would promote the cause of justice in seeing thatthe guilty are punished and the innocent are acquitted.”
It seems, however, to be manifestly unjust that the prosecution shouldhave been permitted to adduce at that stage evidence which, if it wasadmissible at all, could have been adduced before the appellant enteredupon his defence : for the prosecution was thereby enabled to withholduntil after the close of the case for the defence an important part of itsown case, consisting of the whole of the evidence of a motive and a partof the evidence of preparation for the commission of the offence charged.This aspect of the admissibility of the statements in question, as sub-stantive evidence of relevant facts, appears to have escaped the atten-tion of the learned judge when he made this order, and he refers thereonly to a less important aspect of their admissibility, as evidence ad-missible under section 155 of the Ordinance to impeach the credit ofthe appellant as a witness. Had the time character of the statementsbeen appreciated it would have been apparent that it was not possibleto deprive them of their evidentiary value as admissions when theywere used for the purpose of impeaching the appellant’s credit as awitness. This is demonstrated by what the learned judge himself hassaid in his summing up. He explained to the jury at an early stage
1 {1937) 39 N. L. R. 65 at 66.2 {1941) 42 N. L. R. 409.
3 {1940) 42 N. L. R. 297,
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GrUJSTASEKAIRA J.—Thuraiaamy v. The Queen
that evidence of these statements “ was allowed to be led because tl^atevidence was sought to be led here in order to impeach the credibilityof the accused when he stated that he had nothing to do with that girl Mariyai,who is the deceased in this case He next referred to that evidenceas having a bearing on the issue as to whether the appellant fired thegun intentionally :
“ Now how can you find out whether the accused did have amurderous intention or not when he fired this gun 1 If you acceptthe evidence for the prosecution that (then ?) it was a deliberate artof shooting which the accused committed because of certain reasonswhich according to the case for the Crown the accused himself had statedto that 'Police Sergeant Jayawardene.
The accused denies that there is any ill-feeling between this womanMariyai and himself. But this part of the accused’s evidence theCrown sought to impeach by calling the evidence of Police SergeantJayawardene who stated that the accused told him that he has beenloved by this girl Mariyai and Mariyai asked him not to have any-thing to do with her or talk to her. That evidence was led and allowedto be led because the Crown is entitled to do that. The accused saysthere is no reason whatsoever and it was a sheer accident on his part.In order that you may attach the proper weight to that evidence theCrown led the evidence of another witness Police Sergeant Jayawardeneto whom the accused had said something different soon after his arrest.”
There is in this passage a clear direction that there was evidence of anadmission by the appellant of facts constituting a motive for the shooting.The same direction is contained in the next reference to this evidencewhere, in his discussion of the evidence given by Subramaniam, thelearned judge says—
“ According to the prosecution he was regarded as a more suitablehusband than the accused who too wanted the girl to go with him andshe refused.”
The only evidence that the appellant wanted the girl to go with himand she refused is his admission. Finally, the learned judge directedthe jury that the exception of grave and sudden provocation had notbeen established ; and what he said involved a direction that theappellant’s statement to the sergeant was evidence that the deceasedhad broken a promise of marriage :
“ Another matter that may just occur to your mind is whetherthere was any provocation. The only provocation is that the girl hasjilted the accused. If there was any provocation it must be bothgrave and sudden provocation. If the girl had refused to marry the accusedtwo weeks ago, you cannot say it was a sudden provocation because the onlykind of provocation that is known to us which has the effect of reducingwhat would otherwise be murder to culpable homicide not amountingto murder is grave and sudden provocation. There is no suddenprovocation in this case.”
GTXN'ASEKLAftA J.—Thuraisamy v. The Queen
453
In*our opinion there has been a miscarriage of justice resulting froma ■wrong exercise of the presiding Judge’s discretion to allow the prose-cution to call evidence in rebuttal. The evidence in question, con-stituting as it did the only evidence of a motive for the alleged offenceand corroboration of the evidence of preparation, may well have tippedthe scale against the appellant, even if the jury did not infer from allthe evidence adduced by the prosecution that he made a confessionto the police sergeant.
We also agree with the contention that there has been a misdirectionon the burden of proof. Although several passages in the summing-upcontain a correct direction it seems to us that the jury may well havebeen misled by the language used in some of the references to theappellant’s evidence that the gun was discharged accidentally. Thelearned judge said, for instance,—
“ According to section 73 of the Penal Code, a person in the positionof an accused is not responsible for any injury caused to another if itcan be 'proved that such injury was the result of an accident overwhich he had no control.”
The appellant would have been entitled to an acquittal, however, evenif it was not proved that the injury was the result of an accident butthere was a reasonable doubt on that point. The question for the jurywas not whether there were circumstances that brought the case withinan exception but whether the prosecution had discharged the burdenthat lay on it to prove beyond reasonable doubt that the firing of thegun was not accidental. The learned judge also said—
“ On this question of intention there is a commonsense principlethat is always called in by the prosecution in order to prove murderousintention against any prisoner, that is every sane adult is presumedto intend the natural and probable consequences of his voluntaryacts—mind you voluntary. If you accept the evidence of the accusedthat the gun went off involuntarily, then of course this principle willnot apply.”
Again he said, after he had discussed the case for the prosecution,—
“ As against this evidence we must consider the evidence of theaccused. In the case of his evidence he has got to satisfy you on abalance of probability that what he says is true not beyond a reasonabledoubt but on a balance of probability what the accused says isacceptable to you.”
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As in the case of It. v. Dionis 1, it was a misdirection to tell the jurythat there was a burden on the appellant to satisfy them that his versionwas probably true. _
New trial ordered.
i {1951) 52 N. £. B, 547.