034-SLLR-SLLR-1983-2-WIJEWANTHA-AND-ANOTHER-v.-ATTORNEY-GENERAL.pdf
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[1983] 2 Sri L. R.
WIJEWANTHA AND ANOTHER
v.ATTORNEY-GENERAL
COURT OF APPEAL
H. A. G. DE SILVA, J„ ABEYWARDENE. J. AND G. P. S. DE SILVA. J.
C.A. 92-93/81
C. MATARA 57/79NOVEMBER 22. 1982.
Criminal Law — Evidence Ordinance. Section 27 — Confession to a witness —Recovery of weapons.
According to a witness, G (not a police officer) at a murder trial the 1 st accusedhad told him " We have come after killing a man The Police Inspector in hisevidence had stated he recorded the statement of the 2nd accused andthereafter found a katty in a heap of rubbish in a jungle. He thereafter arrestedthe 1 st accused and recorded his statement. Subsequently he found a knife anda sword under a decayed tree in a jungle. It was not the Inspector's evidence thatthe accused pointed out where the weapons were or that the discovery of theweapons was by reason of the information received from the accused. It wassubmitted that the confession to G would have been more readily believed by thejury because of the recovery of the weapons as the judge had failed to warn thejury that they should not draw the inference that the accused had made aconfession to the Police Inspector. Whenever a statement which is proved undersection 27 of the Evidence Ordinance can reasonably lead the jury to infer that aconfession may have been made to a Police Officer, the trial judge should warnthe Jury that the law prohibits such an inference being reached.
Held —
In this case no statement of the accused was sought to be proved under section27 of the Evidence Ordinance. Hence the judge was under no duty to warn thejury against acting on the footing that a confession had been made to a PoliceOfficer. It is only in respect of an accused's proved statement to the Police thatsuch a warning should be given.
Cases referred to
Krishnapiiiai v. The Queen 74 NLR438, 439APPEAL from judgment of High Court of Matara.
R. K. Sureschandra for accused-appellants.
H. S. Yapa. S.S.C. for Attorney-General
Cur. adv. vult
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'January 12. 1983
P. S. DE SILVA. J.
The two accused in this case were indicted on twocharges
That on or about 23rd May, 1976, they committed themurder of one Somapala.
That, in the course of the same transaction, theycommitted the murder of one Gunadasa.
By the unanimous verdict of the jury, both accused were foundguilty of murder on the first charge and they were both foundguilty of culpable homicide not amounting to murder on thesecond charge. They were sentenced to death on count (1) andon count (2), each of the accused was sentenced to a term ofseven years' rigorous imprisonment. Both, the first accused andsecond accused, have now appealed against their convictionsand sentences.
The case for the prosecution rested upon the evidence of threewitnesses, namely, Somaweera. Maryhamy and Gunapala.Neither the first nor the second accused gave evidence, nor didthey make a statement from the dock.
According to Somaweera, on 23rd May, 1976 at about 11.30a.m., he along with one Loku Mahathya, the deceased Somapala,and the 1st accused were returning home having purchasedcigarettes at a boutique. They were walking along a foot path insingle file. The 1st accused was walking behind the deceasedSomapala. When they had walked some distance, at the turn-offto the house of the 1st accused, the 1st accused jumped on tothe bund of a channel. Somaweera had looked back and seen the1st accused armed with a pointed knife and the deceasedSomapala had a bleeding injury on the back of his chest.Somaweera and Loku Mahathya had asked Somapala to runaway. Somapala then jumped into the stream and ran. The 1staccused pursued Somapala and intercepted him. Thereupon, the
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2nd accused came on the scene, armed with a sword, andproceeded to strike Somapala several blows with the sword. Itwas the position of this witness that prior to the attack, there wasno exchange of words between either of the accused and thedeceased.
The other witness Maryhamy stated in evidence that at aboutnoon, while she was bathing at a tank, she saw the deceasedSomapala being chased by the 1 st accused who was armed witha knife. Somapala came running to a spot close to the tank andwas unable to proceed further. At that stage, the 2nd accusedcame running with a sword and struck Somapala with the sword.Somapala thereupon fell on the ground and the 1st and 2ndaccused ran in the direction of their house. Thereafter, she sawthe deceased Gunadasa coming from the direction of his housetowards the tank. It was her evidence that she saw the 1st andthe 2nd accused striking the deceased Gunadasa with somethingwhich had a white-coloured handle and with a sword. On receiptof the blows, the deceased Gunadasa fell on the ground.
Thus it is seen, that the testimony of Somaweera andMaryhamy clearly implicate both accused in the attack upon thetwo deceased persons. Somapala and Gunadasa. The medicalevidence revealed that the deceased Somapala had elevenexternal incised injuries, two of which were necessarily fatal.Gunadasa. however, had no injuries which were necessarily fatalbut had fourteen external injuries, three of which were fatal in theordinary course of nature. Some of the injuries on the deceasedpersons could have been caused with a sword while the otherscould have been caused with a knife or a katty.
Mr. Sureshchandra, Counsel for the 1st and 2nd accused-appellants. did not at the hearing before us. seriously dhallengethe evidence of either Somaweera or Maryhamy. There is nodoubt that upon the testimony of these two witnesses, it wasclearly proved that both accused-appellants had participated inthe attack upon Somapala and Gunadasa.
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The next witness whose evidence is of an incriminating naturewas that of Gunapala who stated that on the day in question, atabout 12.30 p.m. or 1.00 p.m., the 1 st and 2nd accused came tohis house and the 2nd accused asked him for.Rs. 2/-. Gunapalahad questioned the 2nd accused as to why he wanted Rs. 2/-and thereupon, the 2nd accused had replied that he wanted togo to the Police Station. Gunapala had told him that he had nomoney. Then, the 1st accused pleaded with him to somehow orother give him the money. According to Gunapala. the 1staccused had also said : " We have come after killing a man." Itwas also the evidence of Gunapala that the 2nd accused wascarrying a knife and a katty.
Mr. Sureshchandra, contended that the evidence that theappellants had made a confession to witness Gunapala was morelikely to have been believed by the jury in view of the evidencegiven by the Police Inspector in regard to the recovery of theknife P1. the sword P2 and the katty P3. It was the submission ofMr. Sureshchandra that the prosecution purported to lead theevidence of the Police Inspector in regard to the " discovery " ofP1, P2 and P3 under section 27 of the Evidence Ordinance.Mr. Sureshchandra, relying strongly on the case of Krishnapillaiv. The Queen (1), contended that the trial Judge failed to warnthe jury that they should not draw the inference that theaccused-appellants had made a confession to a Police Officer. It wasMr. Sureshchandra's submission that this was a non-direction ona vital matter and therefore, such non-direction amounted to amisdirection which vitiated the verdict of the jury.
In view of Counsel's submission, it is necessary to closelyexamine the evidence of Inspector Sarathchandra. The Inspectorstated that he first took into custody the 2nd accused at about5.45 a.m. on 24th May. 1976. He explained the charge to the2nd accused and recorded his statement. The Inspector'sevidence is that thereafter he found the katty P3 in a heap ofrubbish in a jungle. The Inspector goes on to state that the 1staccused was arrested at 7.00 a.m. on the same day.Subsequently, he found the knife P1 and the sword P2 whichwere under a decayed tree in a jungle. In cross-examination, the
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Inspector stated that he recovered the weapons after he recordedthe statements of the two accused. On a scrutiny of the aboveevidence given by the Police Inspector, I am of the view that itdoes not warrant a direction by the trial Judge that the juryshould not infer that a confession has been made by theaccused-appellants to the Police Officer. It is relevant to notethat
the Inspector does not state that the accused-appellantspointed out the spot where the weapons were ;
nor does the Inspector state that the discovery of theweapons was by reason of the information received fromthe accused-appellants.
In other words, it is not the case for the prosecution that the" discovery" of the weapons was " in consequence ofinformation " received- from the accused-appellants. It must benoted that in Krishnapi/lai's Case (supra), the Inspector of Policehad stated in evidence that the accused, in the course of hisstatement, had stated: " I put the knife into the well. The banianand sarorig were also burned near the well. I can point out that tothe Police.'' Further, the Inspector's evidence was. ” that inconsequence of this statement, he discovered a knife in a well,some little distance away from Subramaniam's house and alsothe remnants of some burnt clothes. " (74 NLR 438 at 439). It isin this context that H. N. G. Fernando. C.J.. in the course of thejudgment, stated :—
" We hold therefore that whenever a statement which isproved under section 27 can reasonably lead the jury toinfer that a confession may have been made to a PoliceOfficer, the trial Judge should clearly warn the jury that thelaw prohibits such an inference being reached. Since thesumming-up in the instant case lacked any directions ofthe nature which we hold were necessary, there wasnon-direction which amounted to misdirection. Thiswas a material point, because of the important item of
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circumstantial evidence that the accused is alleged to havemade a confession to the witness Sivarasa. An unfairconstruction of. or illegitimate inference from, theaccused's proved statement to the Police, could well haveled the jury too easily into belief of Sivarasa's testimony."(The emphasis is mine.)
Since no statement was sought to be proved under section 27 ofthe Evidence Ordinance in the instant case, I am of the view thatthe principle laid down in Krishnapillai's Case (supra) has littlerelevance.
What is more, in the present case, the learned trial Judge hasexpressly directed the jury
that there is no connection whatever between theweapons recovered and the accused ;
that on the basis of the recovery of the weapons, noconclusion whatever adverse to the accused, should bearrived at.
As rightly submitted by Mr. Hector Yapa, Senior State Counsel,this direction was more than adequate to ensure that noprejudice whatever would be caused to the accused-appellantsby the evidence of the Inspector in regard to the recovery of theweapons.
For the above reasons. I hold that Mr. Sureshchandra'ssubmission based on Krishnapillai's Case (supra), is not entitledto succeed. In the result, the convictions and sentences of bothaccused-appellants are affirmed and their appeals are dismissed.
A. G. DE, SILVA, J. — I agree.ABEYWARDENE, J. — I agree.
Appeal dismissed.