King V. Kalu Banda

[Crown Case reserved.]

Present: Lascelles C.J. and Pereira and Ennis JJ.

KING v. KALU BANDA.

11-P. C. Kegalla, 16,189.

 [Second Criminal Sessions, Midland Circuit, 1912.]

Confession-Plea of self-defence-Evidence of police officer that accused did not in his statement to him set up plea of self-defence-Evidence Ordinance, s. 25.

The accused, who was charged with having caused grievous hurt to one Balahamy, set up the defence that he was acting in self-defence.

The prosecution proved that the accused had made a certain statement to a police officer, and that in that statement he had not charged Balahamy with having attacked or threatened to attack him.

Held, that this evidence of the police officer was not admissible. The police officer was allowed to give evidence of what was in substance a confession by the accused.

" If police officers are allowed to go into the box and say, 'The accused, soon after the crime, made a statement to me, but in that statement he said not one word of the defence he set up before the Magistrate,' the object of the Legislature will be to some extent frustrated."

THE facts are set out in the judgment of the Chief Justice.

Elliott (with him Gurusamy and B. F. de Silva), for the accused.- The headman was called to prove that the accused did not plead self-defence when he made a statement to him. The effect of that evidence on the jury would have been tantamount to a confession by the accused that he did not act in self-defence. This evidence is therefore inadmissible; if admitted, the provisions of the Evidence Ordinance re admissibility of confessions to police officers would be valueless. [Lascelles C.J.-The statement is a self-exculpatory excused.] Even a self exculpatory excuse may amount to a confession. (Reg. v. Pandharinath;1 Ameer Ali on Evidence 435.) Even if the point was raised in cross-examination, the prosecution has no right to clear it up in re-examination by eliciting an incriminating statement by the prisoner. (Queen Empress v. Mathews.2)

1 6 Bom. 34. 2 10 Cal. 1022.

Although the statement made by the accused was not admitted, what he did not say was elicited. It would have been more fair if the whole statement of the accused was put in evidence. (Queen Empress v. Jamcharam.1)

It has been held in Deonis v. Peris Appu2 that evidence of this kind is inadmissible.

Bawa, K.C., Acting S.-G., for the Crown.-The Evidence Ordinance does not expressly exclude this evidence. The fact that accused did not make a statement is not a confession.

This is evidence of conduct only; it is not evidence oral or documentary. See King v. Francis Perera.3

[Ennis J.-Without proving the statement of the accused, you are seeking to prove the effect of it.]

In all the cases cited the statement made by the accused was elicited in evidence. We are only seeking to prove the conduct of the accused in this case.

Cur. adv. vult.

September 23, 1912. Lascelles C.J.-

This is a question with regard to the admissibility of evidence which has been reserved for the decision of this Court under section 855 of the Criminal Procedure Code. The circumstances upon which the question has arisen are fully set out in the case stated by my brother Wood Renton, and it is only necessary here to refer to them briefly. The accused was convicted of causing grievous hurt to one Balahamy. The defence set up by the accused in his statutory declaration in the Police Court, and also in the Supreme Court, was that he had struck Balahamy with a mamoty, but that he had done so whilst defending himself against an attack which Balahamy was making upon him with a knife. The question which we have to determine arose in connection with the statements which the accused made to the police headmen shortly after Balahamy was injured. Counsel for the Crown asked the headmen whether the accused had made a statement to them. The answer to this question was in the affirmative. He then proposed

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