SINNIAH PALANIYANDY, Appellant, and THE STATE, Respondent

027-NLR-NLR-V-76-SINNIAH-PALANIYANDY-Appellant-and-THE-STATE-Respondent.pdf


Palaniyandy v. The State
145
[Court of Criminal Appeal]
1972 Present: Alles, J. (President), Thamotheram, J., and
Deheragoda, J.
SINNIAH PALANIYANDY, AppeUant, and THE STATE,Respondent
C. A. No. 7 of 1972, with Application No. 9S. C. 364/71—M. C. Nmuara Eliyd, 41809
Evidence Ordinance—Sectione 6, 32 (I), 118—Child of tender years—Competency totestify—Considerations applicable—Whether oath or affirmation is necessary—Oaths Ordinance, s. 4 (1)—Dying declaration of a child—Admissibility inevidence—Sense of impending death not necessary—Meaning of word“ statement ”—Weight to be attached to the statement—Whether the statementshould be corroborated—Effect of non-direction concerning it—Res gestae—Requirement of contemporaneousness—Court of Criminal Appeal—Scope ofits power to interfere with verdict of jury on the ground of its unreasonableness—Certificate of trial Judge—Effect of it—Court of Criminal Appeal Ordinance,s. 4 (6).
The accused-appellant was convicted of the murder of a woman and her sonwho was four years and one month old. According to the evidence, the hoy,while he was lying fatally injured, uttered the appellant’s name “ Palaniandy”when he was questioned by his father as to the the name of the assailant. Shortlyafter the boy uttered that single word, he died before he could be admitted tohospital. The most important item of evidence on which the conviction wasbased was that statement made by the hoy to his father when the latter cameto the scene during the afternoon when the boy was injured. The questionsfor consideration in the present appeal upon a certificate issued by the trialJudge under section 4 (6) of the Court of Criminal Appeal Ordinance were (1)whether the statement of the boy was properly received in evidence, and (2)whether, having regard to the age of the boy, a conviction based upon thestatement was unreasonable.
The factual position was that the boy, despite his tender years, had sufficientmental capacity to appreciate the nature of the question put to him by hisfather and give a rational answer to that question. The simplicity of thequestion which called for a simple answer was in itself a very relevant matterin the circumstances of the case. A Judge and Jury could well have come tothe conclusion that had the boy given evidence in Court he would have satisfiedthe tert of competency laid down in section 118 of the Evidence Ordinance.
Held, that the competency of the boy to testify as a witness having beenestablished under section 118 of the Evidence Ordinance, the fact that he wasnot available as a witness at the trial could not affect the admissibility inevidence, under section 32 (1) of the same Ordinance, of the declaration madeby him as to the cause of his death.
A witness who is otherwise competent and who understands the obligationto speak the truth is competent to testify even if he does not understand thenature of an oath or affirmation. Even if section 4 (1) of the Oaths Ordinance,which reauires an oath to be administered to all persons who may be lawfullyLXXVI—7
!*—A 00002—2,808 (0/78)
146
Palaniyandy v. The State
examined or required to give evidence before any Court, can be made applicableto a witness who is competent to testify under section 118 of the EvidenceOrdinance, such a requirement is not necessary in the case of a declarationfalling under section 32 (1) of the Evidence Ordinance.
In our law it iB not necessary for the admissibility of a dying declarationthat the deceased at the time of making it should have been under the expectationof death. The solemnity of the occasion would be a sufficient guarantee thatthe declaration may be fairly assumed to be relied upon for its truth.
The word “ Palaniandy ” uttered by the boy coidd properly be regarded asa “ statement ” within the meaning of section 32 (1) of the Evidence Ordinance.If one' renders the question put to the boy and the answer given by him in theform of a narrative, there is a clear oral statement to the effect that Palaniandyhad committed the murders. In Alisandiri v. The King (1937) A. C. 220 thePrivy Council went so far as to hold that a verbal statement inferred fromcertain gestures and signs made in answer to questions, as opposed to an oralstatement expressed in words, was admissible under section 32 (1).
The weight to be attached to a dying declaration of a child of tender yearswould depend on the circumstances of the particular case. But if, in spiteof an adequate warning by the Judge about the infirmities of such evidence, theJury choose to act upon the dying declaration, the Court of Criminal Appealwould not set aside the verdict as unreasonable on account only of the age of thechild. The unreasonableness of a jury verdict does not mean and cannot meanthat the Court of Criminal Appeal is entitled to substitute its own view of thefacts for that found by the jury.
In a case where the law requires corroborative evidence, but there is in factcorroboration of a substantial character, the failure of the Judge to direct thejury on the need for corroboration does not affect the decision of the jury.In the present case there is ample corroborative evidence of the boy’s dyingdeclaration.
Held further, (i) that the statement made by the boy was not part of theres gestae,inasmuch aB it was not substantially contemporaneous with thetransaction.
(ii) that the fact that the trial Judge issued a certificate under section 4 (6)of the Court of Criminal Appeal Ordinance was not of itself a sufficient groundfor interfering with the verdict of the Jury. The questions that arose forconsideration on the certificate were confined to questions of mixed law andfact.
AlPPEAL against a conviction at a trial before the Supreme Court, witha certificate issued by the trial Judge under section 4 (b) of the Court ofCriminal Appeal Ordinance.
D. Quruswamy, with Wijaya Wickramaratne, Lai Wijenaike and
K.Kanag-Iswaran (assigned), for the accused-appellant.
Cecil Gunewardena, State Counsel, for the Attorney-General.
Cur. adv. vuti.
ALl.ES, 3.—Palaniyandy v. The State
147
October 9, 1972. Alles, J.—
The appellant, Sinniah Palaniyandy, was convicted by the unanimousverdict of the jury of the murders of Emmy, wife of Kitnan Ramaeamyand of their young son Dilran, aged 4 years and one month.
At the conclusion of the trial the learned Chief Justice, who presidedat the trial, issued a certificate under Section 4 (6) of the Court of CriminalAppeal Ordinance that this was a fit case for an appeal on the followinggrounds:—
“ The only evidence on which the conviction was based was a
statement alleged to have been made by the boy Dilran to his father.
Two important questions which therefore arise are whether—
the alleged statement was properly received in evidence at the
trial, and
whether, having regard to the age of the boy a conviction based
upon the statement was unreasonable.”
There are previous decisions of this Court in which certificates underSection 4 (b) of the Ordinance have been issued by the trial Judge—Vide The King v. Pablis 1 and The King v. De Alwis 2 and in both thesecases the Court of Criminal Appeal did interfere with the verdict becausethe Court held that, after a careful examination of the evidence, thereappeared to be a reasonable and substantial amount of doubt aboutthe guilt of the accused oh thfe facts particularly as the trial judge himselfconsidered the evidence to be unsatisfactory. However in the lattercase Wijeyewardene J. stated that “ the fact that the trial Judgedisapproved of the verdict of the Jury or has issued a certificate undersection 4 (b) is not of itself a sufficient ground for upsetting the verdictof the Jury.” In the present case there is no clear indication that thetrial judge disapproved of the verdict although he may have been surprisedat the ultimate result, and it would appear that the trial judge himselfentertained doubts in'regard to the admissibility of the statement, butdecided, as a question of law, that the statement was legally admissibleand that the jury were entitled to take that evidence into account ‘ ‘ subjectto certain observations ” that he proposed to make at a later stage.Therefore the questions that arise for consideration on this certificateare confined to questions of mixed law and fact.
The following facts were established at the trial by the prosecution :—
The deceased, Emmy, was a Sinhalese woman from the village ofPannala and had married Kitnan Ramasamy in 1965. Dilran was bornin June 1966. At the time of the tragedy on 23rd July 1970, Ramasamyhad been working on Waldemar Estate for 3£ years as a plucking Kanganyand used to be referred to as a Kanakapulle. Adjoining his houselived two other Kanakapulles—Palaniandi Ramasamy and Selvarajah—both of whom testified at the trial. The two Kanakapulles were
UP44) 45 N. L. B. 541.
(1946) 46 N. L. It. 422.
148
ALIrES, J.—Palaniyandy v. The State
unmarried and Selvarajah used to have his midday meals at the house ofKitnan Ramasamy. Another witness who gave evidence at the trial wasArumugam Palaniandy who was a labourer on Kondagala Division ofWaldemar Estate but who had never visited Kitnan Ramasamy’shouse. The appellant was a labourer working under Kitnan Ramasamyand has been referred to as a “ sack cooly ”—lie was in charge of thegunny bags for the pluckers. There were other “ sack coolies ” attachedto Ramasamy’s division—Karupiah, Perumal and Ramiah. They werein and out of Ramasamy’s house since they had constantly to takeaway and bring back and leave the weighing balances which were keptat Ramasamy’s quarters.
The Kanakapulles being attached to the staff grade were consideredto be on a higher social status than the labourers and there is evidencethat the little boy Dilran always referred to the Kanakapulles as “ Uncle”whereas he used to call the labourers by their name. He referred to hisfather as “ Daddy ” and his mother as “ Mummy ”.
It was suggested by the prosecution that the motive for the crimeswas robbery. It would appear that the appellant was engaged to bemarried and the motive suggested was that he wanted to steal Emmy’svaluable necklace. The learned trial Judge directed the jury that sucha motive had not been established and we must therefore proceed on thebasis that no motive has been proved by the prosecution for the killings.
On 23rd July 1970, Kitnan Ramasamy went to Avork at his field andreturned for his midday meal about 12.30 p.m. which he had in thecompany of Selvarajah, Emmy and Dilran. About l£ hours later Rama-samy again left for the field in the company of Selvarajah. AxumugamPalaniandy, the other Kanakapulle, had his meal at his house and thenleft for his field. This meal was cooked by Karupiah. Karupiah hadgone to the bazaar to buy some kerosene oil and returned about 3.45 p m.Finding no matches in the house he went to the house of Kitnan Ramasamyto borrow some matches and he found the infant daughter of KitnanRamasamy being carried by one Karuppen Arumugam, outside the houseon the compound. On questioning Arumugam, the latter told him f;hatthe child Avas outside and that the mother could not be seen. Karupiahthen entered the house and saw an extensive trail of blood near thekitchen. He got frightened and went immediately to inform the HeadKanakapulle. Not finding him at his house he then went to informKitnan Ramasamy and told him that his house was full of blood andrequested him to come immediately. Kitnan Ramasamy returned homeand reached his house about 4 p.m. He fixes the time by the soundingof the siren which he heard when he was approaching his house.
Although there was a large crowd outside, the evidence discloses thatKitnan Ramasamy was the first person to enter the bed room wherehe found his wife brutally done to death. She had 21 external injuriesall over her body caused Arith a sharp cutting weapon. Fatal injurieshad been caused to the chest cutting the ribs, penetrating the heart and
AXiLES, J.—Palaniyandy v. The State
149
the lungs, and the liver and the spleen had been cut. There cannot bethe shadow of a doubt that the intention of the assailant was to kill.Dilran had also been injured on the chest and parts of his liver, stomachand small intestines were protruding.
Kitnan Ramasamy found the door of the bed room half closed andas he opened it, he found his wife lying on the floor face downwards ina pool of blood. He went and fell on her bddy and tinned her upwards.He then heard the sound “ Daddy He looked in the direction of thesound and saw his son who was lying elose'fco his wife’s feet and questionedhim in the following terms: “ Babba, who has done this ? ” To this questionthe son uttered one word “Palaniandy”. Dilran died before he couldbe admitted to hospital. Quite apart from the fact that Dilran alwaysaddressed the labourers by their names there was evidence that theappellant besides being a “ sack cooly ”, whose duties required him tovisit Kitnan Ramasamy’s house frequently, also did some of the house-hold work—he used to buy provisions, chop firewood and pluck leavesfor the goats. He used to talk and play with Dilran. Apparently thelittle child was a pet of everybody and the “ sack coolies ” includingthe appellant were fond of the child. Ramasamy states that they usedto hide his toys, no doubt to tease him and the boy used to complain tohis father.
When the boy referred to Palaniyandy as being the assailant he couldnot have referred to Palaniandy Ramasamy whom he always addressedas “ Uncle ” and he could not have referred to Arumugam Palaniandywho was not known to him and who never visited Kitnan Ramasamy’shouse. Having regard to the evidence in’the case, therefore, the name" Palaniandy ” can only refer to the appellant. Dilran knew him welland the medical evidence is not inconsistent with the possibility of Dilranbeing sufficiently conscious to be able to understand his father’s questionand give a rational answer. The learned trial Judge adequately directedthe jury on the credibility to be attached to Ramasamy’s evidence, thepossibility of Dilran being alive at the time he mentioned the assailant’sname and stressed more than once in the course of his charge that it wasabsolutely essential that the jury should be satisfied beyond reasonabledoubt that the child did give that name and that the named person wasthe appellant.
At the argument before us, learned Counsel for the appellant stronglyurged, that Dilran could not be regarded as a competent witness if he wasavailable to testify in Court, and consequently any statement attributedto him would therefore not be admissible under Section 32 (1) of theEvidence Act. It was further urged on the ground of competency thathe could not have understood the nature of an oath or affirmation andthat this failure must necessarily affect his competency. The competencyof a witness to testify in Court under our law is governed by Section118 of the Evidence Act which reads as follows :—
“ All persons shall be competent to testify unless the court considers
that they are prevented from understanding the questions put to them,
150
A_LLES, J.—Palaniyandy v. The State
or from giving rational answers to those questions, by tender years,extreme old age, disease, whether of body or mind, or any other causeof the same kind.”
The test laid down in the Section in regard to the competency of a childwitness to testify is whether the Court considers that he is preventedfrom understanding the questions put to him or from giving rationalanswers to those questions. This is essentially a question of fact and doesnot depend on the age of the child and would necessarily vary with thenature of the statement made. Before examining the question of lawI propose to examine the factual position in order to determine whetherDilran had sufficient mental capacity to understand questions put tohim and give rational answers. He commenced to attend the estateschool from the beginning of 1970 ; he had learned about four lettersof the Tamil alphabet; he was able to call people by their names anddistinguish the Kanakapulle class from the labourer class ; he was ableto converse quite intelligently for a boy of his age in Tamil and English ;he used to speak to Selvarajah about his toys and requested him to buyhim a car or a bus and he used to describe how the Superintendents andAssistant Superintendents of the Estate talked and walked. We think,on this material, a Judge and jury would have found him quite capable ofsatisfying the requirements of Section 118 of the Act.
In Sarlcar’s Commentary1 the commentator citing Queen Emperor v. LaiBahai,2 states—*
"In determining the question of competency, the court, under s. 118,has not to enter into inquiries as to the witness’s religious belief or asto .his knowledge of the consequences of falsehood in this world orthe next. The court is at liberty to test the capacity of a witness todepose by putting proper questions. It has to ascertain, in the bestway it can, whether from the extent of his intellectual capacity andunderstanding, he is able to give a rational account of what he hasseen or heard or done on a particular occasion. If a person of tenderyears or of very advanced age can satisfy these requirements, hiscompetency as a witness is established.”
Monir in his commentary on the Indian Evidence Act3 states—
" At one time the age of a child was considered as the criterion ofhis competency, and it was a general rule that none could be admittedunder the age of nine years, very few under ten. But of late years noparticular age is required in practice to render the evidence of a childadmissible. A more reasonable rule has been adopted and thecompetency of children is now regulated not by their age, but by thedegree of understanding which they appear to possess. A child maybe a competent witness to give evidence in Court if it appears thatshe can understand the questions put to her and give rational answers 1
1 Sarkar on Evidence (10th ed.) Vol. 2, p. 1045.
(1888) 11 Allahabad 545 at 546.
Principles and Digest of the Law of Evidence by Monir, pp. 791, 798.
A-LLiES, J.—Palaniyandy v. The State
161
thereto. No precise age is fixed by law, within which children areabsolutely excluded from giving evidence on the presumption thatthey have not sufficient understanding. Neither can any preciserule be laid-down respecting the degree of intelligence and knowledgewhich will render a child a competent witness. In all questions ofthis kind much must ever depend upon the good sense and discretionof the Judge.”
and again
“ No fixed rule can be laid down as to the credit that should beassigned to the evidence of a child witness. Obviously the questionwould depend on a number of circumstances.”
The same view has been expressed in Field's Law of Evidence1 when theauthor states that—
“ if the child, though of tender years, is sufficiently intelligent tounderstand the questions put to him and to give rational answers tothose questions, then his capacity to give evidence is on the samefooting as that of any other adult.”
When the witness is available in Court to give evidence, the preliminaryexamination to determine competency is known as the voire dire. Thisis done merely to save time because the Court can then decide at theoutset whether the witness is competent or not, but the failure of theJudge to do so does not affect the issue of competency and would amountto a mere irregularity. In the case of a person who cannot be calledas a witness and whose statement may become admissible under Section32 of the Evidence Act, the competency has necessarily to be determinedby other evidence. In the present case there was evidence on whichthe Judge and jury could have come to the conclusion that Dilran hadsufficient understanding to appreciate the nature of the question put tohim by his father and give a rational answer to that question. Thesimplicity of the question which called for a simple answer would in itselfbe a very relevant matter in the circumstances of the particular case.The learned trial Judge himself formed the view, no doubt tentatively,that the boy had sufficient understanding to give a rational answer tohis father’s question. Dealing particularly with the imaginative natureof a child’s evidence the learned trial judge drew the attention of thejury to the fact that this was not a case “ where there was some longdiscussion where the child was saying something to protect himself orto protect his father or mother” and that it was “an automatic remarkmade under the pressure of events which took place a little while beforein that room.” Thereafter he left the issue to the jury, who by theirunanimous verdict apparently endorsed the Judge’s view. In FatuJSantal v. Emperor1 2 the Patna High Court held that—
“ The mere fact that the evidence of the only eye-witness of a crimeis that of a child six years of age, is not a ground for not relying upon
1Field’s Law of Evidence (1967), Vol. VI, p. 4473.
2(1921) 22 Cr. L. J. 417.
J52
ALLES, J.—Palaniyandy v. The State
it, especially when the evidence is given without hesitation and withoutthe slightest suggestion of tutoring or anything of that sort, and thereis corroboration of the evidence in so far as it narrates the actual facts,and of the child’s subsequent conduct immediately afterwards.”
This was, of course, a case where the child was available as a witness,but the observations of the Court might well apply to the circumstancesin which Dilran made his statement in the present case.
The jury were entitled to come to the conclusion that had Dilrangiven evidence in Court, he would have satisfied the test of competencylaid down in Section 118. Undoubtedly one of the circumstances thata Court could take into account in an appropriate case in deciding thecompetency of a child witness is whether the child is able to understandthe nature of an oath or affirmation. There are however conflictingdecisions as to whether an oath or affirmation should be administeredafter the court has decided upon the competency of a witness. In TheQueen v. Bvsye Appux, The King v. Jeeris1 2 and The King v. Ramasamy 3 * 5 *whieh were followed by the Court of Criminal Appeal in The Queen v.Siripina4 the view was taken that it was obligatory to administer anoath or affirmation, when the Judge has decided that a person is acompetent witness. There are however two other decisions of this. Court supported by a decision of the Privy Council which have taken acontrary view. In The King v. Dingo5 Wijeyewardene A.C.J. followingthe Privy Council decision in Hohamed Sugal Esa Mamasan Rer Alalaha case from the Protectorate of Somaliland, held that there was noobligation on the Court to administer an oath or affirmation providedthe witness was competent to testify. This decision has recently beenfollowed in an unreported decision of this Court inReginav. Somasundaram7to which our attention has been drawn by learned Counsel for the State.We are inclined to follow the decisions in King v. Dingo and Regina v.Somasundaram and hold that a witness otherwise competent and whounderstands the obligation to speak the truth is competent to testifyeven if he does not understand the nature of an oath or affirmation.
In view of the decisions referred to above, the necessity for administeringan oath or affirmation to Dilran does not arise, and having regard to histender years and the absence of any material from which the Court canassume that he woidd have been able to understand the nature of an oathor affirmation, we entertain no doubt that had he been alive and presentin Court to testify, no oath or affirmation would have been administered1to him. But, Dilran’s statement in this case is not one that is governedby Section 118 of the Act but one which is made admissible under
1 (1883) Wendt’s Reports, p. 136 at p. 140.
(1905) 1 Bal. Rep. 185.
(1941142 N. L. R. 529.
(1964) 65 N. L. R. 545.
5 (1948) 50 N. L. R. 193 at 194.
(1946) A. C. 57 ; (1946) A. I. R. (P. C.) 3.
7 S. O. 29j69 M. O. Nuwara Eliya 37749, decided on 2nd August, 1971.
[76 N. L. R. 10]
ALICES, J.—Palaniyandy v. The Stale
153
Section 32 (1). Therefore, even if Section 4 (1) of the Oaths Ordinance,which requires an oath to be administered to all persons who may belawfully examined or required to give evidence before any Court, canbe made applicable to a witness who is competent to testify underSection 118, such a requirement is not necessary in the case of a declarationunder Section 32 (1).
The English law certainly would not have permitted a child of suchtender years to testify, but the reason for this is quite different. In theleading case of Rex v. Pike1 it was held that a declaration in articulomortis, made by a child only four years old is not admissible in evidenceon the trial of an indictment for the murder of such child, because a childof such tender years could not have that idea of a future state which isnecessary to make such a declaration admissible. As Justice Parkremarked in that case—
“ We allow the declaration of persons in articulo mortis to be given. in evidence, if it appears that the person making such declaration was
then under the deep impression that he was soon to render an account
to his Maker.”
Similar, views were expressed by the Court in King v. Drummond2 where-the dying declaration of a convict was excluded, but this decision can nolonger be considered authoritative since a convict witness is now entitledto testify. If the English law as stated in Rex v. Pike applied, Dilran’sdeclaration would not have been admissible in evidence. This theologicalbelief—a belief in a punishment of a future state—is a conditionprerequisite for the acceptance of the declaration in England as well asin the United States. The principle enunciated in Rex v. Pike (supra)has been generally accepted in the United States—(Vide Wigmore onJBvidence).* As one American Judge remarked “ The vital inquirybefore the Court was as to the real condition of the mind of the deceasedwhen making the statement under consideration….”1 * * 4 *. In Englanda wider approach has since been recognised under the Oaths Act of 1961which entitled atheists and non Christians (i.e. those who did not believethat a God would punish for false swearing) to make dying declarations.Some of the commentators on the Indian Evidence Act appear to haveadopted the early English practice—Vide Amir Ali on Evidence,6Sarkar 6 and Field 7, but Monir8 doubts the applicability of the Englishlaw to the law in India and draws attention to Section 158 of the EvidenceAct which enables the credit to be attached to the dying declaration tobe impeached or confirmed in the same way as that of a witness actually
1 3 O. <b P. 597, 172 English Reports.
1 1 Leach 338. 168 E. B. 271.
Wigmore on Evidence, Vol. V, Section 1443.
‘ Per Mvlkey J. in Tracy v. The People (1880) 97 IU. 108.
Amir Ali on Evidence (1962), Ed. Vol. 1, p. 664.
■* Sarkar (10th Ed.) Vol. 1, p. 323.
7 J'ield’e Law of Evidence, Vol. 3, p. 1736.
Monir, Vol. 1, p. 218.
154
AXLE S, J.—Palaniyandy v. The State
examined in Court. In support, Monir relies on one of the earliestcommentaries on the Indian Evidence Act published by Sir HenryCunningham, a former Judge of the Calcutta High Court. Commentingon Section 32 Cunningham states in his commentary x) :
“ The English ruling in R. v. Pike, 3 C. & P., 598, according to •whichthe dying declaration of a child of such tender years that she could notunderstand the doctrine of a future state, was rejected, is not applicableunder the present section ; nor, it would seem, is the question of thecompetence of the person to bear testimony one which affects theadmissibility of the statement. If it complies with the requirementsof this section it is relevant, though, possibly, of small importance.”
If a witness, when alive, is competent to testify under section 118 of theEvidence Act there is no reason in principle why the declaration of sucha witness, if he is dead, should not be held admissible under Section 32 (1)of the Act. In this respect there is a departure from the principles of thelaw in England from that which exists in India and Ceylon. In Englandthe declaration should have been made under the sense of impendingdeath. As Mr. Justice Park stated in I?, v. Pike, “ as this child was butfour years old, it is quite impossible that she, however precocious hermind, could have had that idea of a future state which is necessary tomake such a declaration admissible.” but in Regina v. Perkins2 thecircumstances indicated that a boy between 10 and 11 years of age wasaware that he would be punished if he said what was untrue and thedeclaration made by him at this time was receivable in evidence on thetrial of a person for killing him as being a declaration in articulo mortis.Under our law it is not necessary for the admissibility of a dying declarationthat the deceased at the time of making it should have been under theexpectation of death. The solemnity of the occasion would be a sufficientguarantee that the declaration may be fairly assumed to be reliedupon for its truth in spite of the absence of an oath,—a manifestationof the Latin maxim “ Nemo moriturus praesumitur mentiri.”
The competency of Dilran to testify as a witness being establishedunder Section 118 of the Evidence Act, the fact that he was not availableas a witness at the trial cannot affect the declaration made by him underSection 32 (1) of the Act. The further question can arise forconsideration whether Dilran’s answer might properly be regarded as a“statement” under Section 32 (1). In Alisandiri v. The King3 thePrivy Council went so far as to hold that a verbal statement inferredfrom certain gestures and signs made in answer to questions, as opposedto an oral statement expressed in words, was admissible under Section32 (1). In Dilran’s case, if one renders the question asked and theanswer given to the form of a narrative there is a clear oral statementto the effect that Palaniandy had committed the murders. Furthermorein view of the decisions of this Court in King v. Samarakoon Banda4 1
1 Ounningham’e Law of Evidence (1894), p. 155.
■ 9G.dk P. 395. 173 E. B. 884.
s (1937) A. O. 220.
* (1943) 44 N. L. B. 169
ALLES, J.—Palaniyandy v. The State
155
and Ratnayake v. the Queen* it could be argued that Dilran’s statementis one that is admissible not only in relation to the cause of his owndeath hut to Emmy’s death as well.
We would therefore hold that the dying declaration of Dilran was onethat was properly received in evidence at the trial.
It has been urged by learned Counsel for the State that this statementis also admissible under Section 6 as part of the res gestae. To makea statement admissible under this section the declaration must besubstantially contemporaneous with the facts they accompany. InRegina v. Bedingjield 2 a statement made by a deceased, who suddenlycame out of her room in which she left the prisoner and said somethingimmediately afterwards shortly before she died suggesting that the prisonerhad cut her neck, was held not to be a statement that was admissible aspart of the res gestae. In Lejzor Teper v. The Queen3 the Privy Councilheld “ that it is essential that the words sought to be proved by hearsayshould be, if not absolutely contemporaneous with the action or event,at least so clearly associated with it, in time, place and circumstances,that they are part of the thing being done, and, so an item or part of realevidence and not merely a reported statement.” To he admissible aspart of the res gestae the test of contemporaneousness must be strictlyfollowed. When Kitnan Ramasamy came to the house the transactionhad been completed and an interval of time had elapsed before Dilranmade his statement. We are therefore of the view that the statementis not admissible as part of the res gestae.
The weight to be attached to a dying declaration under Section 32 (1)is quite a different matter and would depend on a number of circumstances,particularly in the case of a child witness. The deponent being a personof tender age there is always the possibility of the statement beingtutored or the likelihood of the imaginative outlook of a child witnessaffecting the nature of the statement. The learned trial Judge did warnthe jury of these infirmities and there was an adequate caution in thewords of this Court in The Queen v. Anthonypillai 4 that there was a riskin acting on the statement of a person who is not a witness and it wasnecessary to consider with special care the question whether the statementcould be accepted as true and accurate. The infirmities referred to abovemay not have been present in the circumstances of the instant case, butnevertheless we are in agreement with the views of the trial Judge, thatthe appellant was entitled to be acquitted if the jury could not decidewith certainty that the appellant’s name was mentioned. In view ofthese directions we must assume that the jury acted on the dyingdeclaration, only because it was supported by other evidence to whichreference will presently be made. Since however, the learned trial 1
1 (1971) 73 N. L. B. 481.
(1879) 14 Cox's Criminal Law Cases, p. 841.
(1952) A. C. 480 at 487.
(1965) 69 N. L. B. 34 at 38.
166
ALLES, J.—Pcdaniyandy v. The Slate
Judge has posed the question in his certificate whether, having regardto the age of the boy, a conviction based upon the statement wasunreasonable it is incumbent on this Court to give an answer to thatquestion.
The unreasonableness of a jury verdict does not mean and cannot meanthat this Court is entitled to substitute its view of the facts for thatfound by the jury. Numerous decisions of this Court have laid downthis principle in unmistakable terms—Andris Silva x, Wegodapola 2,Don Andrayas cfc Atapattu 3, Musthapa Lebbe 4. These are early decisionsof this Court which have hitherto been consistently followed, but thisis a principle that does not appear to be sufficiently appreciated today.When, for instance, there has been a unanimous verdict of a jury whohave accepted the evidence of direct eye witnesses, even if there arecriticisms that can be made about that evidence, these are matters thatmust necessarily have been brought to the notice of the jury by competentCounsel and if the jury, in spite of these infirmities, have chosen to acceptthe evidence of the eye witnesses, it would be a usurpation of the functionsof the jury, for this Court to substitute its verdict for the verdict of thejury. The only exception to this rule would be if the misdirections ornon-directions are of such a substantial nature which might have affectedthe jury’s verdict resulting in a miscarriage of justice or it can bedemonstrated that the verdict of the jury is perverse, and not merelybecause the members of this Court feel some doubt about the correctnessof the verdict. In the present case the question posed by the trial Judgeis purely academic, but since the law permitted the declaration of Dilranto be received in evidence, in spite of his tender years, the jury wereentitled to act on the declaration in arriving at the conclusion that theappellant was the assailant.
Evidence in support of Dilran’s statement consisted mainly of two itemsof evidence, to which reference has been made by the learned trial Judge.There was firstly a statement made by the appellant to Police ConstableBanda in which the appellant stated that he had the knife in the drainbehind Ramasamy’s house. In consequence of this statement the Policerecovered the pointed knife P 1 from the drain. The murders couldhave been committed with this knife. The point of this knife was bent.It is in evidence that a portion of the cement floor was chipped closeto the place where Emmy’s body lay, and the doctor was of the opinionthat this could have been the result of the knife coming into contactwith the cement floor after causing a penetrating injury which he foundabove Emmy’s wrist-joint. On an examination of P 1 by the Analystit revealed a preliminary positive reaction for blood in the crevicesbetween the hilt and the guard of the knife. There was some criticismabout the manner in which Banda recorded the appellant’s statement 1
1 (1940) 41 N. L. R. 433.
(1941) 42 N. L. R. 459 at 469.
(1941) 21 Ct L. ff. 93.
(1943) 44 N. L. R. 505 at. 507.
ALLES, J.—Palaniyandy v. The State
157
Because he had to obtain the assistance of a labourer to record the statement.Banda admitted that he understood a little Tamil but not sufficientto record the translation of what the appellant stated. The trial•Judge drew the attention of the jury to these infirmities in the recordingof the statement, but in spite of these infirmities the jury were apparentlysatisfied that the record of the statement was accurate. The little Tamilwhich the Constable knew would have been sufficient for him to understandthe appellant’s statement in regard to the discovery of the knife. Thisevidence established the fact that the appellant had himself knowledgeof the location of the “murder” weapon. Another item of circumstantialevidence relied upon by the prosecution was given by the witness Palanywho stated that about 3.30 p.m. on the day in question the appellantasked her for a bucket and put a sarong in it to be washed. The waterin the bucket was blood-stained. True it is that the sarong has notbeen identified as that of the appellant, but there is no reason why theappellant should busy himself with washing other people’s sarongs.Another item of circumstantial evidence in the case, which howeverwas not referred to by the trial Judge, was the presence of an injuryon the right little finger of the appellant at the inter phalangial jointwhich the doctor stated could have been caused if the appellant usedP 1 and the knife slipped in the course of the stabbing. The Doctor■discounted the possibility of the injury being caused with a sickle asstated by the appellant in his- dock statement. These items of■circumstantial evidence amply support the dying declaration of Dilran.
Counsel for the appellant has criticised the charge on the ground that-the directions to the jury in regard to the weight to be attached to thedying declaration were inadequate. It has been submitted that therewere no directions that the declaration was not made on oath; that itwas subject to the infirmity resulting from the lack of cross-examinationand that no reference was made in the charge that the weight to beattached to it depended on whether the declaration was corroboratedby other evidence. These criticisms are justified and the matters mentionedby Counsel have not been referred to in the charge. At one stage we■contemplated directing a fresh trial of the appellant on the same chargesin view of these omissions, but on further consideration we think, thatin the circumstances of this case, no useful purpose will be served bydoing so, as in our opinion no substantial miscarriage of justice has takenplace.
It is essential in the case of a dying declaration that the jury shouldbe warned of the danger of acting on a dying declaration and that theyshould be cautious in accepting it, but the adequacy of the warningmust necessarily vary with the nature of the declaration. In Monir’scommentary1 the learned author states—
“ In India, a dying declaration assumes a character very widely
different from what it has under the English Law, and is relevant
1 Monir, Vol. l,p. 226.
168
ALLES, J.—Palaniyandy v. The State
whether the person who made it was or was not at the time he madeit under expectation of death ; the weight to be attached to it depends,not upon the expectation of death which is a guarantee of its truth,but upon the circumstances and surroundings under which it was made,and very much also upon the nature of the record that has been made ofit. It is almost a question of fact whether it should be relied upon ornot, and, therefore, a matter entirely within the province of the jury.”
In Alisandiri’s case {1937) A. G. 220 (supra) in which the facts are somewhatsimilar to the facts of the present case the directions of the learned trialJudge were unfortunately not available, but the Privy Council assumedthat the jury were adequately and properly directed on the weight ofthe evidence. In the present case the learned trial Judge stressed thefact that the dying declaration was the most important item of evidencein the case and that the jury had to be absolutely certain that the childhad given the name of the assailant. In our view, in the circumstancesand the surroundings in which that statement was made, this was anadequate direction. We must not be misunderstood thereby to meanthat in every case where the jury have to consider a dying declarationsuch a direction would be adequate. We would, with respect, agreewith the general principles set out in the decisions of this Court in TheKing v. Asirvadan Nadar x, Lewis Fernando v. The Queen 1 2, and Justinpalav. The Queen3. In Asirvadan Nadar the statements contained in thedying deposition, which formed the foundation of the prosecution case,were lengthy statements relating to the circumstances in which thedeceased came by his death and Gratiaen J. held that the jury shouldappreciate that the statements of the deponent had not been tested bycross-examination. The learned Judge stated that in the opinion ofthe Court it was imperative that such a warning should be given, a viewthat was endorsed by Gunasekara J. in the later case of Lewis Fernando.This same view was also followed by T. S. Fernando J. in Justinpala. Inall these cases there were lengthy statements made by the deponentand it was essential that the jury should have been adequately warnedthat the statements had not been tested by cross-examination. In thepresent case the statement consists of an answer to a simple questionmade almost immediately after the transaction was completed and adirection in the terms of Asirvadan Nadar was strictly unnecessary.
The necessity for a direction to the jury that the declaration hasnot been tested by cross-examination arises not only in a case wherethere has been a lengthy statement but also in the case of an incompletestatement. In the latter case the direction is all the more necessarybecause one can only speculate as to what the deponent would havesaid if he was able to complete his statement. In Waugh v. The King 4cited by Gratiaen J. in Asirvadan Nadar the Privy Council took the
1 (1950) 51 N. L. B. 322.
(1952) 54 N. L. B. 274 at 277.
(1964) 66 N. L. B. 409.
4 Privy Council. Weekly Notes of 31.3.50., p. 173.
AI-.LES, J.—Palaniyandy e. The State
15&
view “ that the dying declaration was inadmissible because on its faceit was incomplete and no one could tell what the deceased was about taadd; that it was in any event a serious error to admit it in part; andthat it was a further and even more serious error not to point out to thejury that it had not been liable to cross-examination.”
In regard to the failure of the Judge to draw the attention of the juryto the fact that the statement was not made on oath or affirmation,we do not think any prejudice has been caused. Any intelligent jurymust know that an oath cannot be administered to a child of such tenderyears.
Finally there is the criticism that the trial Judge did not direct thejury that it was necessary that the dying declaration should becorroborated. Monir in his Commentary1 states that—
“ Corroboration of a dying declaration is not necessary as a rule oflaw, but where a dying declaration is not made in expectation of deathand is not made in the presence of the accused, prudence requiresthat it should be corroborated before it is acted upon.”
This view has been adopted by Basnayake C.J. in The Queen v. VincentFernando 2. I agree with the observations of T. S. Fernando J. howeverin Justinpala that on the facts in Vincent Fernando it was necessaryfor the trial Judge to direct the jury on the need for corroboration andalso draw attention to the inherent weakness in the declaration that ithad not been tested by cross-examination. It is also a well knownprinciple of law that where there is in fact corroboration, the failureof the Judge to give a direction does not affect the decision of the jury.
In other fields where the law requires corroboration, the Court ofCriminal Appeal has held that “ if there is corroboration of a substantialcharacter the warning is not required ”—The King v. Ana Sheriffs(a case of Rape). Similarly it was held in The King v. Piyasena 4 inregard to the evidence of an accomplice that if there is in fact corroborationof an accomplice’s evidence the Court will not interfere even when theproper caution to the jury has not been given. In principle, we do notsee why the same considerations should not apply to the case of a dyingdeclaration. There was ample corroborative evidence of Dilran’sstatement in the present case.
For the above reasons we are of the view that the verdict of the juryin this case was based on admissible evidence and that it was notunreasonable for the jury to act upon the statement of Dilran, which inthis case was supported by other items of circumstantial evidence.
The appeal is therefore dismissed and the application refused.
Appeal dismissed.
1 Monir, Vol. 1, p. 226.
* (1064) 65 N. L. B. 265 at 27J.
8 (1941) 42 N. L. B. 169.
* (1948) 49 N. L. B. 389 at 390.