1939 Present: Abrahams C. J., Hearne and Keuneman JJ.

THE KING v. KIRIWASTHU et al.

38-P. C. Matale, 22,162.

Evidence-Confession to Police Officer-Inadmissible to prove that the accused contradicted himself-Criminal Procedure Code, s. 122 (3)-Evidence Ordinance, s. 25.

A confession made to a Police Officer is inadmissible as proof against the person making it whether as substantive evidence or in order to show that he has contradicted himself.

THE two accused were charged with having committed murder and with having caused evidence of the commission of the offence of murder to disappear and tried before a Judge and jury at the Midland Assizes. During the course of the trial the Counsel for the second accused wanted to elicit from the second accused in the course of his examination-in-chief portions of the statement made by him to a Police Sergeant under section 122 of the Criminal Procedure Code, 1898. The Counsel for the first accused suggested that the whole should be put to the second accused. When the statement was put to him, he admitted portions of it whilst he denied the rest. At the close of the defence the learned Judge permitted Crown Counsel to recall the Police Sergeant to discredit the evidence of the second accused. The jury returned a unanimous verdict finding both accused guilty of murder.

The Attorney-General acting under the provisions of section 355 (3) stated a case and submitted two questions of law, which are set out in- the judgment of His Lordship the Chief Justice.

H. V. Perera, K. C. (with him J. R. Jayawardana and C. C. Rasaratnam), for the two prisoners. -The questions of law to be decided are (i.) whether a confession made to a police officer could be used to discredit the story given by him in his own defence, and (ii.) whether the second accused could give oral evidence with respect to what he told the police officer or whether it could only be proved by the written statement taken down by the police.

Section 25 of the Evidence Ordinance says that no confession made to a police officer can be proved as against the accused.

[ABRAHAMS C. J. - Can it not be proved in his favour?]

No. Confessions are tainted and the prohibition is absolute. The mere fact of a confession would prejudice the jury. A tainted statement which the Legislature had discredited cannot be used to discredit the accused. A statement recorded under section 122 of the Criminal Procedure Code is a mere record of an investigation. The person who makes the statement does not take the responsibility of testifying to the accuracy. There is a distinction between a statement signed by a person and a record of a statement. Sections 91 and 92 of the Evidence Ordinance make the distinction clear. Once it is signed he adopts it to be his statement. The statement under this section must not be signed.

[ABRAHAMS C. J. - What about section 122 (3)?]

It must be read with section 25 of the Evidence Ordinance. The document can be used only for the purposes mentioned in section 122.

It cannot be used as evidence as held in Muthukumaraswami Pillai v. King Emperor 1. The primary object of that section is to get a record. The Indian Courts had held that oral evidence of the statement could be given. Section 145 of the Evidence Ordinance does not apply. If section 122 (3) of the Criminal Procedure Code was absent, the provisions of the Evidence Ordinance would apply. That section indicates that oral evidence could be given. The statement does not fall within section 91 of the Evidence Ordinance. It is relevant under section 8 of the Evidence Ordinance though its probative value may be very small. The effect of these sections was considered in Baby Nona v. Johana Perera 2. It was held in The King v. Gabriel 3, that oral evidence could be given by the police officer. A deposition is on a different footing because it is read over and signed by the witnes