[COURT OF CRIMINAL APPEAL ]

1947 Present ; Howard CJ. (President), Wijeyewardene
and Jayetileke J.J.

THE KING v EDWIN et al

APPLICATIONS102-104

S. C. 3-M. C. Gampaha, 30,237

Confession-Charge of murder-Confessions by some accused-Extenuating circumstances disclosed in confession-No evidence given by accused- Confessions admissible to prove the "extenuating circumstances-Applie -ability of English law -Evidence Ordinance, ss 21 and 17 (2)

Where the prosecution seeks to lead in evidence a confession made by an accused, the whole confession must be taken even though it con-tarns matter favourable to the accused The Jury may, however attach different degrees of credit to the different parts The principles of the English law are not inconsistent with the provisions of sections 17 (2) and 21 of the Evidence Ordinance.

APPLICATIONS for leave to appeal against three convictions in A a trial before a Judge and Jury.

U. P. Weerasinghe (with him A. P. de Zoysa, E A. G. de Silva and C. Jayawickrema), for the first accused,

E. A. G. de Silva, for the second accused.

H. V. Perera, K.C. (with him Nihal Gunasekera and E. A. G. de Silva), for the third accused.

M. F. S, Pulle, Acting Solicitor-General (with him H. Deheragoda, C.C.).for the Crown.

Cur. adv. vult.

July 7, 1947. HOWARD C.J.-

In this case the first and second accused were convicted of the offence of murder and the third accused of abetment of the first and second accused in the commission of that offence. The conviction of the first and second accused rests on confessions made by them to the Magistrate. In those confessions they admitted that they assaulted the deceased, but at the same time they gave details of the circumstances in which the assault took place. If the Jury believed that the assault took place in such circumstances there was a possibility that they might have considered that the offence did not amount to murder, but to culpable homicide not amounting to murder. The first and second accused in their confessions stated that they committed the assault on the deceased at the request of E. de S. Wijeratne, one of the witnesses called by the Crown It has been contended by Counsel for the first and second accused that the conviction for murder cannot stand, as the learned Judge has failed to direct the mind of the Jury to the fact that if the circumstances in which the assault took place were as stated by the

first and second accused in their confessions, they might come to the conclusion that the assault was committed under grave and sudden provocation and the offence amounted not to murder, but to culpable-homicide not amounting to murder The Acting Solicitor-General, Mr Pulle, has argued that, although the first and second accused in their confessions have related the circumstances in which the assault took place, the confessions cannot be employed by the accused to prove such circumstances The Crown can prove from the confessions the fact of the assault on the deceased but the accused on the other hand cannot by reason of the provisions of section 21 of the Evidence Ordinance call m aid in their defence the confessions It would have been different if the first and second accused had testified in the witness box as to the circumstances an which the assault took, place This they did not do,, the second accused remaining silent while the first accused made a statement from the dock disclaiming any participation in the assault. Mr Pulle has also contended that as the first and second accused have confessed to the request of Wijeratne they went to Mahara Nugegoda with be intention of assaulting the deceased, they cannot be heard to say that the assault took place only after they had been provoked We do not consider there is any force in this last contention if the Whole of the confessions were admissible in evidence the first and second accused were entitled to ask the Jury to say tha