1942 Present: Moseley S.P.J.

THE KING v. PUNCHI BANDA

45-M. C. Dandagamuwa, 9,536A.

Admission by accused as witness-Admissible against him in subsequent charge against him-Confession prompted by suggestion from Police Sergeant-Hope of advantage-Evidence Ordinance, ss.21 and 24.

A statement which is made by an accused person in the course of proceedings against other parties in respect of the same incident and which amounts to a confession is admissible under section 21 of the Evidence Ordinance, unless it is otherwise tainted.

A confession which is prompted by a suggestion from a Police Sergeant that some advantage would be gained by the accused if he spoke the truth is obnoxious to section 24 of the Evidence Ordinance.

IN this case the accused was charged with murder Circuit, 1942, before Moseley S.P.J. and a Jury.

Nihal Gunesekera, C. C., for the Crown.

Sextus Coorey, Proctor, for accused.

Cur. adv. vult.

July 14, 1942. MOSELEY S.P.J.

The accused was charged with murder. At the outset, the jury having been asked to retire, Counsel for the defence objected to the admission of two statements made by the accused, each of which is in the nature of a confession. The first (P 15), was made by him in the capacity of witness in the tours of proceedings against other parties in respect of the same incident; the second (P 39), when he was subsequently charged with the offence. On the latter occasion, the Magistrate, who had recorded the evidence of the accused in the previous proceedings, had entered the witness box, with" view to testifying to the first statement of the accused, and had been affirmed, when the accused stated that he was" willing to make the same statement". Certain" preliminary precautions" were taken, and upon the accused" persisting that he is anxious to make the statement" the acting Magistrate expressed himself as "inclined to believe" that the statement about to be made was to be made voluntarily. The statement was then recorded and a Memorandum made in the form prescribed by section 134 (3) of the Criminal Procedure Code.

In regency to the first statement, Counsel for the accused argued that it is not the statement of an accused recorded in the course of an inquiry and docs not, therefore, come within the scope of section 233 of the Criminal Procedure Code, but he was unable, on the facts then before him, to advance any further objection 2gainst its admission. His contention is sound in regard to the inapplicability of section 233, but it seems, to me that, on less the statement)  otherwise tainted, it is clearly admissible under section 21 of the Evidence Ordinance as an admission by the recessed

The point Was then taken that the second statement, P 39, had been by made in circumstances which offend the provisions of section 24 of the Evidence Ordinance, which makes irrelevant any confession which has been caused by :my inducement, threat, or promise proceeding from, a poison in authority.

my attention as drawn to a passage towards the end of the statement, which is as follows At the Police Station when I was questioned, I denied any knowledge about this matter. Then the Sergeant told me to tell the truth if I knew an5thing about this (lied to get out of it. Then I came out with the truth then the Sergeant asked me to tell the truth before the Magistrate and to beg for pardon, Therefore, I spoke the truth before the Magistrate", These words definitely imply that the confession was prompted by a suggestion by the Sergeant that some advantage would be gained by the ace-wed if he told the truth. In the face of. them, however, the leaned Acting Magistrate expressed himself as believing that the statement was voluntarily made. Unfortunately, he was unaware of the rules issued by the Legal- Secretary for the guidance of magistrates in recording statements and confessions under section 134 of the Criminal Procedure Code. Had he