[Crown Case Reserved]

1927 Present: Garvin and Lyall Grant JJ. and Maartensz A. J

 KING v. ARNOLIS PERERA.

28-P. C. Negombo, 46,211.

Evidence-Statement by a deceased person-Circumstances of the transaction resulting in death-Evidence Ordinance, ss. 6, 8, 32 (1)

M, who was living in the house of her parents near the Botanic  Gardens, Henaratgoda, disappeared on the night of June 30, and her corpse was found, in the afternoon of the following day, lying on a mat in a threshing floor about half a mile from the house. At the trial of A, who was a watcher at the Botanic Gardens, for the murder of M, evidence was led of circumstances, which, it was alleged, proved that M was murdered by A, and it was sought to give in evidence a statement alleged to have been made by M to her daughter Jane on June 30 to the effect that she was going away with the accused to Rambukkana.

Held, that evidence of the alleged statement of the deceased to the daughter was not admissible. Section 32 (1) of the Evidence Ordinance is limited to statements made by a person after the event which resulted in his death.

CASE referred by the Attorney-General under section 355 (3)  of the Criminal Procedure Code. The facts are stated in the reference as follows:-

The accused in this case was charged with murdering a woman named Dingiri Menika on June 30, 1926. He was tried before Mr. Justice Schneider and an English-speaking jury composed of three Europeans and four Ceylonese. He was found guilty by, a verdict of 6 to 1. He was accordingly sentenced to be hanged.

Dingiri Menika was a widow, who lived with her brothers and; sisters in a house inherited from her parents adjoining the Botanic Gardens at Henaratgoda. She disappeared on the night of June 30. When her disappearance was discovered at about 10 or 11 p.m., it was found that her clothing and jewellery and also certain jewellery belonging to one of her sisters was missing. Her corpse was discovered at about 3.30 p.m. on the afternoon of July 1 lying on a mat and pillow in a threshing floor about half a mile from her house which that time of year was not much frequented.

The circumstances which point to the accused as the murderer of Dingiri Menika are the following: -

(a) The accused is a married man. He was intimate with Dingiri Menika, and she was five months with child

(b) Dingiri Menika told her little daughter Jane on June 30 that she was going away with the accused to Rambukkana to open a boutique there.

(c) Dingiri Menika disappeared from her house between 9 and 11 p.m. on June 30, and the accused (who ought to have been on duty at the Botanic Gardens at Henaratgoda from 5 p.m. on the 30th to 5 a.m. on July 1) was not at his post on the night of June 30, when search was made for him from about 3 a.m. till daybreak.

(d) The accused, when questioned on the morning of July 1 regarding his absence from the Gardens on the night previous, said first, that he had gone for his dinner at 9 p.m. and had returned at 1 a.m., and then that he had returned at 3 a.m.

(e) The accused fainted when he heard that the Police Headman had searched for him on the night of June 30 in connection with the disappearance of Dingiri Menika.

(f) The witness Samaneris saw the accused at about 11 p.m. on June 30 going with Dingiri Menika in the direction of the threshing floor on which later Dingiri Menika's corpse was discovered.

(g) The witness Siappu saw the accused about midnight returning homewards from the direction of the Botanic Gardens and the threshing floor.

(h) The witness Theirs identifies the mat and pillow on which the corpse was found lying as the property of the accused.

(i) The witness Bastian Sinno identifies certain pieces of jewellery which were found on the night of July 1 at the accused's house (in a box of the accused's wife) as his sister Ruihamy's jewellery which was in his box and which Dingiri Menika took away.

(j) Th