1926 Present: Garvin A. C. J., Dalton and Lyall Grant  J. J.

KING v. COORAY et al.

13- P. C. Colombo, 18,147.

Confession-Statement to police constable-Inference of guilt-Contradicted by recorded statement-Use of information book-Evidence Ordinance, ss. 17 and 25.

The accused were charged with the murder of an Inspector of Police. At the trial the Presiding Judge, at the instance of the jury, called a witness, who, it was alleged, had heard the accused call to a police constable, travelling in a passing 'bus, to the following effect: " There, your Inspector is killed." When the witness denied that he heard such a statement, the Judge read out the statement made by him and recorded in the Police Information Book.

Held, that the statement did not amount to a confession within the meaning of section 25 of the Evidence Ordinance.

An admission, which is not a confession, does not become obnoxious to section 25 merely because it is found to be at conflict with a defence set up later.

Dal Singh v. King Emperor l followed.

 King v. Kalu Banda 2 considered.

Observations as to the purposes for which a Court may use the Police Information Book during an inquiry or trial.

CASE referred on a certificate by the Attorney-General under section 355 (3) of the Criminal Procedure Code.

Thomas Cooray, the first accused, along with Elias Dabrera were charged and convicted of the first, with the murder of Sub- Inspector Nambiar; and the second, with abetting the, murder. The following defences were taken on behalf of the first accused: -

(a) That he did not commit the assault on the Inspector and was not on the scene when the Inspector was killed.

(b) That he killed the Inspector when acting under grave and sudden provocation and at a time when he was under the influence of liquor.

(c) That the intention essential to the offence of murder cannot be ascribed to him as he did the act in a state of intoxication.

At the close of the case for the prosecution the jury expressed a wish to hear the evidence of one Martin Cooray, to whom information of the accident was given by the driver of the omnibus in which

1 (1917) 86 L. J. 140.  2 (1912) 15 N. L. R. 422.

Nambiar and the two accused were traveling. Martin Cooray was called and stated that he saw the accused going in a bus in one direction and a police constable in another bus going in the opposite direction, but he did not hear the accused screaming out anything to the police constable. At this stage the Presiding Judge read the witness's statement recorded in the Police Information Book: " As the 'bus passed, Thomas and Elias screamed out. ' There, your Inspector is killed,' and pointed at the constable. " The witness denied having made this statement. Counsel for the defence objected to the statement being read, submitting that the statement was in effect a confession and was inadmissible under section 25 of the Evidence Ordinance.

In view of the witness's denial, the Judge stated in open Court that there was no evidence that the accused made such a statement.

Hayley (with Garvin and Crossette Thambiah), for accused.-The grounds of objection could be formulated as follows: -

(1) If it is a confession under section 17 of the Evidence Ordinance, it would be obnoxious to section 25 of the same Ordinance as being irrelevant.

(2) If it was inadmissible, whether it was properly placed before the jury, and whether the jury were influenced in their verdict by the reading out of the statement.

(3) Whether the reading out of the statement was done under conditions contrary to section 122 (3) of the Criminal Procedure Code.

Section 17 of the Evidence Ordinance joins up " confession " with " admission. " Sub-section (2) of section 17 is not contained in the Indian Act, and is added in our Act to convey some particular meaning. Under this sub-section a " confession is an admission "; so that the definition of " admission " sho