097-NLR-NLR-V-40-THE-KING-v.-APPUHAMY.pdf
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KEUNEMAN J.—The King v. Appuhamy.
1938Present: Keuneman J.
THE KING v. APPUHAMY.P. C. Avissawella, 17,963.
Evidence—Signs made by a deaf and dumb person—Interpretation of signs bywitnesses—Signs do not amount to oral testimony—Confession—Evi-dence Ordinance, s. 17.
The interpretation by a witness of the signs made by a deaf and dumbpei'son is not admissible evidence.
Such signs do not amount to an oral.statement within the meaning ofsection 17 (1) of the Evidence Ordinance.
T
HIS was a reference to the Supreme Court by the Police Court ofAvissawella* under section 288 of the Criminal Procedure Code.
. D. W. Fernando, as amicus curiae.
■ Marshall Pulle, C.C., for Attorney-General.
Cur. adv. vult.
September 18, 1938: Keuneman J.—
. This is a reference by the learned Magistrate under section 288 of theCriminal Procedure Code. The accused in the case was deaf and dumbfrom birth and is unable to read or write, and it has not been foundpossible to make him understand the nature of the proceedings or to findanyone who can interpret to him the evidence in the case. The accusedwas undefended. The charge is causing mischief by fire. The evidenceso far as it goes appears to negative insanity, but there is no medicalevidence in the case. The accused has been committed for trial in thehigher Court.
KEUNEMAN J.—The King v. Appuhamy.
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l set the matter down for hearing as I was not satisfied that there waslegal evidence on which the committal could be made, and I am indebtedto Counsel who appeared as amicus curiae and for the Crown for theirhelp in elucidating this matter.
The on^ evidence to justify the committal, as far as I can see, is theevidence off Ukkuhamy, the elder brother of the accused. “ On June 6,1938, at aboflt 1 a.m. this accused came to my house when I was asleepand put me tip by shouting loud and by means of signs he made meunderstand that he had set fire to the school, and called me to accom-pany him to the Kuruwita Police Station. He also made me understandthat he had set fire to the school as the boys in the school were teasing himas his hair had been cropped very short . . … Accused also mademe understand that he set fire to the school owing to another reason, viz.,because the Arachchi had failed to take any steps in the case where he hadbeen assaulted. This is what I understood from his signs as far as I wasable to do so ”.
The point for consideration is whether this evidence is admissibleevidence. The only evidence tendered is that a particular witnessinterpreted the signs made in a particular manner, but there is no evidencethat the witness reproduced those signs in Court, or that the Court madeany attempt to interpret these signs. I do not think that the interpre-tation of the signs given by Ukkuhamy is admissible evidence. InAlesandiri v. The King ’, Soertsz J. in dealing with a different matter, viz.,signs made by a dying person in answer to a question put to him, ruledthat evidence as to the signs made in reply to the question was admissiblebut that statements of witnesses as. to what interpretation they put on thesigns were not admissible. The Privy Council did not differ from orcriticise the correctness of this finding.
The further question is whether evidence of signs made by the accusedwould amount to an “ oral ” statement within the meaning of section 17of the Evidence Ordinance. Section 17 (1) speaks of an admission beinga statement “oral or documentary”. Section 17(2) states that a
confession is an admission.
In Alesandiri v. The King (supra) the. Privy Council had to interpretnot section 17 but section 32. They held that a sign made by a dyingperson in response to a question was a “ verbal ” statement under section32. They added:“ It is to be observed that in the section the word used
is * verbal1 and not ‘ oral ’ which is used elsewhere in the Ordinance, e.g.,in section 3 and section 119, in reference to evidence given in Court. Itis unnecessary to decide whether the question put ‘ was it Alesandiri ? ’and the nod of assent would have constituted an oral statement made bythe deceased, but their Lordships are clearly of opinion that it constituteda verbal statement made by her”.
In Queen Empress v. Abdulla *, Petheram C.J. said :“ ‘ Verval ’ means
by words. It is not necessary that the words should be spoken. If theterm used in the section was ‘ oral ’ it might be that the statement mustbe confined to words spoken by the" mouth. But the meaning of ‘ verbal ’is something wider”.
i 38 N. L. R. 257.
= I. L. R. 1 All. 385.
374’ WIJEYEWARDENE A.J.—Ibrahim Saibo v. Commissioner of Stamps.-
In this case there is a complete absence of evidence as to what the“ signs ” made by the accused to his brother were. It does not appearlikely that the statement of the accused was “ oral ” in the sense of“ words spoken by the mouth Even if “ oral ” can be given anextended meaning, there is no evidence of ‘ signs ’ which can comewithin such extended meaning.
Crown Counsel has referred me to section 8 of the Evidence Ordinanceand argued that the ‘ signs ’ if proved may be conduct within the meaningof that section and admissible as such.
In this case I cannot see that the conduct of the accused is relevant,once the alleged ‘ statement ’ is shut out, or points with any reasonablecertainty to his guilt.
I think the accused in this case is entitled to a discharge, and I orderthat he be discharged.