036-NLR-NLR-V-43-THE-KING-v.-ALLIS-SINGHO-et-al.pdf
The King v. Allis Singho.
149
[Court of Criminal Appeal.]
1942Present: Howard C.J., Moseley S.P.J. and Hearne J.
THE KING u. ALLIS SINGHO et al.
6—M. C. Kalutara, 8,338.
Charge to the Jwry—Judge is not bound to refer to minor contradictions in theevidence—Statement put in corroboration of testimony of witness—Evidence Ordinance, s. 157.
A Judge is bound to refer in his summing-up only to such contra-dictions that may arise in the course of a case as are or paramountimportance that the absence of any specific reference to them would
cause injustice or prejudice to the accused.
A statement of a witness relating to the offence- made at or about thetime when the offence took place, which is put In corroboration of histestimony under section 157 of the Evidence Ordinance, is admissible,even where the statement contradicts the evidence of the witness in onerespect.
T
HIS was a case heard before a Judge and Jury in the fourth WesternCircuit, 1941.
C. Suntharalingam, for first accused, appellant.
D. Athulathmudali, for second accused, appellant,
H. T. Gunasekera, C.C., for the Crown.
150HOWARD C.J.—The King v. Allis Singho.
February 2, 1942. Howard C.J.—
The Court in this case granted leave to the appellants to appeal againsttheir conviction on charges of attempted murder and causing grievoushurt at Kalutara Assizes on October 16, 1941. They were separatelyrepresented on the hearing of this appeal. Counsel on their behalf have,however, to some extent relied on the same grounds of appeal. It hasbeen contended that a statement made by the first appellant to inspectorPotger was wrongly admitted in evidence. Inspecor Potger was calledby the Crown at the close of the case for the defence in order to put in thisstatement of the first appellant by way of rebuttal. It is argued that thisstatement amounts in law to a confession, in which case it is clearly in-admissible. In this connection we have been referred to the judgmentof Lord Atkin in Narayana Swami v. Emperor.1 In this judgment LordAtkin dealt with the meaning that must be attached to the word“ confession ” and held that, so far as the law in India is concerned,
“ confession ” could not be constructed as a statement by an accused“ suggesting the inference that he committed ” the crime. The IndianEvidence Act does not contain the definition that is to be found in section17 (2) of the Ceylon Evidence Ordinance. The case to which I havereferred is of no relevance in this case inasmuch as the statement madeby the first appellant to Inspector Potger did not in any way state orsuggest the inference that he committed the offence and hence cannotbe regarded as a confession. It was therefore clearly admissible.
The next point taken by Counsel for the appellants was that thedocument P 2 was improperly admitted in evidence. P 2 was a state-ment made by the witness Albert to the Village Headman soon after thecommission of the offence. We are of opinion that this statement wasclearly admissible under section 157 of the Evidence Ordinance. It wasa statement put in evidence by the Crown to corroborate the testimonyof Albert, a witness, relating to the offence at or about the time when theoffence took place. The fact that the statement contradicted the testi-mony of Albert in regard to one matter is immaterial so far as theadmissibility of the statement is concerned.
On behalf of the first appellant the point was taken that the learnedJudge did not in his charge direct the Jury to consider whether the firstappellant acted under grave and sudden provocation. The charge diddirect the Jury to consider whether the first appellant was exercisingxtheright of private defence or whether the offence was committed in a suddenfight. In fact, having regard to the fact that the lawplaPes on an accusedperson against whom there is a prima facie charge of attempted murderthe burden of establishing either of these defences, the summing-up asregards these defences may be regarded as unduly favourable to the firstappellant. We do not think that the first appellant has suffered anyinjustice by the omission of any reference to a possible defence based ongrave and sudden provocation. The charge asked the Jury to decidewhether they accepted the evidence of Lihinis. By their verdict theyindicated that they did accept his evidence. If the evidence of Lihinis
> (19-19) .4. I. B. (Privy Council) 47.
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HOWARD C-I.—The King v. Allis Singho.
is accepted, no question of grave and sudden provocation could arise-inasmuch as a long interval of time intervened between the allegedprovocation and the commission of the offences with which the firstappellant was charged. In these circumstances the complaint that thecharge made no reference to a possible defence based on grave and suddenprovocation is without substance.
Both Counsel have taken the point that the learned Judge in his chargeto the Jury did not bring some facts and contradictions to the knowledgeof the Jury. So far as the knowledge of the Jury of these facts andcontradictions is concerned, it must be borne in mind that they arecontained in the evidence which was before the Jury. It is not necessarythat the Judge in his summing up should make specific reference to everyfact and every contradiction and discrepancy that may arise in the courseof a case. In this connection I would invite attention to the dictum ofLord Esher in Abrath v. North Eastern Railway Company 1 cited withapproval in Rex v. Joseph Stoddart Counsel for the appellants haveinvited our attention to several contradictions that were not made thesubject of specific reference in the summing up. We do not considerthat these contradictions were of such paramount importance that theomission of specific reference thereto could occasion injustice or prejudiceto the appellants.
In addition to the grounds to which reference has been made Counselfor the second appellant invited our attention to the following-grounds:—
That the evidence against the second appellant did not establish.
attempted murder.
That there was no clear direction to the Jury with regard to the
exercise by the second accused of the right of privatedefence.
Ground (a) was based on the supposition that in law a person cannot besaid to have a murderous intention if he assails his victim with a club..We are unable to accept such a contention.
There is no substance in ground (b) inasmuch as there is no evidence tosuggest that this appellant was exercising the right of private defence.A different situation might have arisen if he had elected to go into thewitness box and given evidence on his own behalf. In this connectionit must be borne in mind that the burden of establishing such a defencelay on him.
We see no reason for interfering with the sentence passed by thelearned Judge. For the reasons I have given the appeals are dismissed.
Appeals dismissed.
5 2 Criminal Appeal R> ports 240.
r 11 Q. B. D. 462.