079-NLR-NLR-V-43-THE-KING-v.-NADARAJAH.pdf
360
HOWARD C.J.—The King v. Nadarajah.
[Court of Criminal Appkal.]
1942Present: Howard C.J., Moseley and Keuneman JJ.
THE KING v. NADARAJAH. .15—M. C. Jaffna, 17,593.
Statement by accused in the course of Police investigation—Use of statementto contradict accused—Criminal Procedure Code, s. 122 (3)—EvidenceOrdinancej ss. 145 and 155.
A statement-»made by an accused person in the course of an investi-gation under Chapter XII. of the Criminal Procedure Code may beused to contradict him under section 122 (3).
If the statement was not made under Chapter XII. it is admissibleunder sections 145 and 155 of the Evidence Ordinance.
The King v. Emanis (.42 N. L. R. 166) followed.
/"I ASE heard before a Judge and Jurv at the 1st Northern Circuit.
C. Santheralingam, for accused, appellant, who is also applicant in theapplication.
E. H. T. Gunasekera, C.C., for the Crown.
Cur. adv. milt.
May 11, 1942. Howard C.J.—
This case involves an appeal on grounds of law and an application forleave to appeal on grounds involving questions of fact or of mixed law'and fact or on any other grounds under section 4 (b) of the Court ofCriminal Appeal Ordinance. The grounds on which the applicationfor leave to appeal is based are not of any substance and in these, cir-cumstances do not call for comment. The first ground of appeal'basedon law maintains that the verdict of the Jury was unreasonable andcannot be supported by the evidence, especially as the second accusedwas acquitted on the same evidence. The case against the second accusedwas not that he used a weapon agayist the injured man, but thathe held the latter whilst the appellant stabbed him. It cannot, ■therefore, be urged that the second accused was acquitted on the sameevidence. Nor, in view of the volume of evidence supplied by eye-witnesses as to what took place, can the verdict of the Jury be regardedas unreasonable. This ground of appeal has no substance.
The second ground of appeal complains that the learned Judge didnot give in regard to the facts of this case an adequate explanation of theexercise of the. right of private defence. It is true that the explanationgiven by the learned Judge of thisright isnot ascomprehensive asit
. might have been. In particular, itdealt with 'therightof a personto
defend himself'when attacked, butomittedall mentionof the exercise
of the right to come to the aid ofanotherpersonwhois attacked.It
was in reference to such a right that the alternative defence of the'appel-lant was based. On the other hand, it seems to us that the omission ofthe learned Judge to deal with such a right was of no consequence. Infact; it .was supererogatory on his part to invite the Jury to give con-sideration to a plea based on the exercise of the right of private defence.
HOWARD CJ.—The King v. Nadarajah.
351
It is true, as was held in The King v. Bellana Vitanage Eddin1 and TheKing v. Vidanclage ~Lanty2, that the fact that a defence had not beenraised nor relied upon at the trial was not in itself sufficient to relievetne Judge of the duty bf putting this alternative to the Jury, “ if therewas any basis for such a finding in the evidence in the record”. Inthis case we think there is no basis for a finding on the evidence that theappellant in stabbing the injured man was exercising the right of de-fending Ramanathan. Neither the appellant nor his witnesses so testified,nor did cueh evidence merge from the testimony of those who' gaveevidence for the Crown. This ground of appeal therefore fails.
The only other ground of appeal was based on the contention that thestatement made by the appellant to Sergeant P. K. Narayanapillaishould not have been admitted in evidence. This statement wasadmitted under the provisions of section 122 (3). of the Criminal ProcedureCode “ to prove that a witness made a different statement at a differenttime ”. Counsel for the appellant contended that this provision did notapply inasmuch as the accused had been charged when the statementwas made and hence any investigation undertaken by the Police underChapter XII. of the Criminal Procedure Code had come to an end.If section 122 (3) did not apply, the statement was not. so he contended,admissible under any other provision of the law. If, on the other hand,the investigation by the Police was. not concluded and section 122 (3)did apply, he maintained that “ witness ” in that section did not includean accused person. In this connection he referred us to the case ofBaby Nona v. Johana Per era In that case, Soertsz J. decided interalia, that" the word “ witness ” in section 122 (3) of the Criminal ProcedureCode must be strictly construed as meaning a witness pure and simpleand does not include an accused person who testifies on his own behalf.Our attention was also invited to the other decisions, namely, The King v.Emanis* and The King v. Ahamadu Ismail2 where in each case it washeld that a statement made by an accused person in the course of an •investigation under section 122 (3) of the Criminal Procedure Code maybe used to contradict him, provided the statement is not a confessionwithin the meaning of section^25 of the Evidence Ordinance. In decidingwhether the law is as formulated in these two cases or by Soertsz J.,in the earlier case, we have taken' into consideration section 120 (b) ofthe' Evidence Ordinance, which provides that an accused person inavgive evidence in the same manner and with the like effect and conse-quences as any other witness. The case to which I have referred wasdecided by Soertsz J. without argument. It' may be that at the timehe was unmindful of this provision of the Evidence Ordinance. More-over, hig dictum on this point was obiter inasmuch as the statement inquestion was a" confession and therefore inadmissible under section 25of the Evidence Ordinance. We think the two later cases correctlyinterpreted the law and a statement if made in the course of a Policeinvestigation under Chapter XII. of the Criminal Procedure Code, :s
»s c.l. w. c>
■* 42 .V. L. It. 120
» 41 N. L. R. 34S* 42 N. L. R. 317
* 12 .V.7?. 207
352 HOWARD C. J.—Palaniappa Che tty v. Mercantile Bank of India.
admissible under section 122 (3). If not made under this Chapter, wethink it is still admissible under sections 145 and 155 of the EvidenceOrdinance. This ground of appeal also fails.
We think it only right to say that even if the appeal had been basedon weightier grounds we should, having regard to the verdict of theJury, have felt constrained to apply the proviso to section 5 (1) «£ theCriminal Appeal Ordinance and to dismiss the appeal as no substantialinjustice had actually occurred.
For the reasons given, .the appeal and application are dismissed.
Appeal and application dismissed.