[IN THE PRIVY COUNCIL.]

1936 Present : Lord Roche, Sir John Wallis, and

Sir George Rankin.

ALISANDIRI v. THE KING.

 Dying declaration-Evidence of signs made by person unable to speak-Nod of assent to question-Verbal statement-Evidence Ordinance, s. 32 (1).

Where a nod of assent was given by a person, who was unable to speak, to a question whether it was the accused that cut her neck,-

Held, that there was sufficient evidence of a verbal statement by the deceased within the meaning of section 32 (1) of the Evidence Ordinance.

Held, further, that evidence as to signs made in answer to questions put to the deceased was admissible but statements of witnesses as to what interpretation they put upon the signs were inadmissible.

Where apart from the evidence proceeding from the deceased woman, the other evidence was not sufficient to warrant a conviction but at the same time that other evidence was not merely consistent with the deceased's statement but pointed in the same direction,-

Held, that the conviction was justified.

THIS was an application for special leave to appeal against a judgment and sentence of the Supreme Court.

L. M. D. de Silva, K.C. (Ceylon), for appellant.

Sir D. B. Somervell, K.C, A.-G. (with him Kenelm Preedy), for the Crown.

November 12, 1936. Delivered by LORD ROCHE.

This is an appeal by special leave against a judgment and sentence of the Supreme Court of the Island of Ceylon dated May 1, 1935, whereby, after a trial before a Commissioner and a jury, the appellant was sentenced to death for the murder of a woman named Salami Nadatchi on May 15, 1934. The jury had returned a verdict of guilty by a majority of six to one. The main point raised in the appeal was whether information given by the deceased woman before her death was a statement within the meaning of section 32 of the Ceylon Evidence Ordinance, No. 14 of 1895, and as such was admissible in evidence by virtue of that section. This information was admitted in evidence and directly implicated the appellant. The material part of the section is as follows : -



 

The facts of the case as proved by evidence not the subject of objection were as follows :-

The deceased was a widow living alone in a two-roomed one-storied house on a plot of land lying between the estates of one Stanley Jayawardene and one Collin Silva. The deceased's house was about 150 yards from the estate bungalow of Collin Silva where a witness named Rengam Arumugam, watcher of the estate, lived with his wife. The accused man had worked as a carter for Stanley Jayawardene's estate and lived in the neighbourhood, but recently and until shortly before May 15, 1934, he had been in the employment of two brothers Mohamadu a few miles away. He had been discharged from this employment some days before May 15 and was then unemployed. On the day in question he had been to the place of business of the brothers Mohamadu, had borrowed a bicycle from one of them, and gone home on it to dinner at his house, which he left after dinner about 2 P.M. Between 2 and 3 P.M. he was seen near the house of the deceased woman in conversation with her. Between 3 and 4 P.M. he was seen riding the bicycle away from that locality and was described by a witness (Charles) as dismounting and as going into a thicket and lurking there and behaving in a suspicious and excited manner. He then, after bathing in a stream, went back on the bicycle to the place of business of the brothers Mohamadu where he was later arrested. Meanwhile at about 4 P.M. the deceased had come in a terribly wounded condition to the bungalow of Collin Silva occupied by Arumugam. The principal wound was one about 4 inches in length extending from the right side of her neck across the throat to about 4 an inch on the left side of the middle line. There were minor wounds on the face and head and her ears were severed and torn. She had evidently made her way una