Justin Fernando V. Inspector Of Police

1945 Present: Wijeyewardene J.

JUSTIN FERNANDO, Appellant, and INSPECTOR OF POLICE,
SLAVE ISLAND, Respondent.

57-M. C. Colombo, 41,784.

Evidence-Statement made by accused while in police custody-Statement leading to discovery of a fact-Must relate distinctly to the fact discovered- Confession-Elicited in cross-examination by accused-Admissibility- Evidence Ordinance, ss. 25 and 27.

The accused was convicted on a charge of theft of a Raleigh Popular bicycle from the premises of the City Dispensary.

The constable who was called as a witness by the prosecution, said in examination-in-chief that he was inquiring into a complaint of a theft of another bicycle (a Hercules bicycle) and the accused was detained as a suspect in connection with that theft. He said that in the course of that investigation the accused gave him some information in consequence of which he visited the house of a carter from whom he obtained parts P 1 and P 2 of a Raleigh Popular cycle. In cross-examination the constable was asked by the Proctor for the defence to read the statement made by the accused to him. The constable thereupon stated that the accused told him " that he had stolen a cycle at the City Dispensary and had later sold it to a carter ".

Held, that even if a suspect detained by the Police on one charge and giving information with respect to property forming the subject matter of a separate and subsequent charge can be regarded as an accused person in the custody of a police officer within the meaning of section 27 of the Evidence Ordinance, the evidence given by the constable of the confession made by the accused that he " had stolen a cycle at the City Dispensary " was inadmissible as it was not covered by the words " as relates distinctly " in section 27 of the Evidence Ordinance; the cycle in this case was discovered in consequence of the information given by the accused that he sold it to a carter, and the further information that he had stolen a cycle at the City Dispensary did not " relate distinctly " to the discovery of the cycle.

A confession is inadmissible in evidence whether it is elicited from a witness in examination-in-chief or in cross-examination by the defence, if it incriminates the accused; the correct test to be applied is not the manner in which the evidence of the confession came to be placed before. the court but the effect of such evidence at the trial of the accused for a criminal offence.

APPEAL from a conviction by the Magistrate, Colombo The facts appear from the head-note.

Ian de Zoysa for the accused, appellant.

E. H. T. Gunasekere, Crown Counsel, for the Crown, respondent.

Cur. adv. vult.

March 13, 1945. WIJEYEWARDENE J,-

The accused was convicted on a charge of theft of a Raleigh Popular bicycle from the premises of the City Dispensary, Slave Island.

The constable who was called as a witness by the prosecution said in examination-in-chief that he was inquiring into a complaint of a theft of a Hercules bicycle and the accused was detained as a suspect in connection with that theft. He said that in the course of that investigation the accused gave him some information in consequence of which he visited the house of Ragin, a carter, from whom he obtained parts P 1 and P 2 of a Raleigh cycle. In cross-examination the constable was asked by the Proctor for the defence to read the statement made by the accused to him. The constable thereupon stated that the accused told him " that he had stolen a cycle at the City Dispensary and had later sold it to a carter through Costa ".

Counsel for the accused contended that the evidence given by the constable of the confession made by the accused that he " had stolen a cycle at the City Dispensary " was inadmissible. He argued that section 27 of the Evidence Ordinance did not make that evidence admissible as-

(a) the statement was not made by the accused when he was and accu

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