1939     Present: Soertsz J.

THE KING v. FERNANDO. 22-M. C. Panadure, 1937.

[4th Western Circuit at Kalutara.] 

Evidence-Statement to Police different from evidence in Court-Right of Crown to put the statement to accused-Statement not exculpatory- Evidence Ordinance, s. 25 (Cap. 11).

The accused, giving evidence, said that he shot in the direction of Peduru, the witness, taking care not to hurt him, when he was on a suriya tree with a katty in his hand and about to leap on to the land of the accused. In his statement to the Police having admitted that he fired a shot, the accused said " I do not know where it went. I had proceeded about 4 or 5 yards from the latrine towards my house when I fired. I fired as I was running into my house. After firing I got into my house and slept. Later, a Police Constable came and told me that I killed a man. Till then I did not know that I had shot anyone ".

Held, that the Crown was not entitled to cross-examine the accused on the statement as it was obnoxious to section 25 of the Evidence Ordinance.

Held, further, that the statement could not be regarded as an exculpa­tory statement, as it was capable of being construed as establishing a prima facie case against the accused.

King v. Attygalle (39 N. L. R. 60) and King v. Cooray (28 N. L. R. 4) distinguished.

THE accused in this case was charged with murder before the fourth Western Circuit at Kalutara.

R. L. Pereira, K.C. (with him D. D. Athulathmudali), for accused.

E. H. T. Gunasekera, C.C., for the Crown.

November 23, 1939. SOERTSZ J.-

Crown Counsel proposes to question the accused on a statement he is said to have made to the Police, in which he does not appear to have said what he now says in the witness box, namely, that he shot in the direction of Peduru, the witness, taking care not to hurt him when he was on a " suriya " tree, with a katty in his hand, and about to leap on

to the land of the accused. Crown Counsel has shown me the statement said to have been made by the accused, and there can be no doubt but that in that statement the accused has given a different version of how he came to fire the gun.

Counsel for the accused objects to his client being questioned on the statement made or said to have been made by him, on the ground that questioning him in the manner proposed is obnoxious, if not to the letter certainly to the spirit of section 25 of the Evidence Act.

Crown Counsel, however, submits that section 25 of the Evidence Act applies to a confession made by an accused person to a Police Officer, and he contends that the statement he proposes to question the accused upon is not a confession, but an exculpatory statement. He relies on the ruling of Akbar J. in the case of The King v. Attygalle [1 37 N. L. R. 60.]. In that case Akbar J. ruled that the statement relied upon in that case was not a confession within the meaning of section 25 of the Evidence Ordinance as it was exculpatory in effect. I have read the statement made by the accused Attygalle in that case and if I may say so with respect, Akbar J. rightly described it as an