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KING v. MARSHALL APPUHAMY
NLR51V272
[COURT OF CRIMINAL APPEAL]
1950 Present: Jayatileke S.P.J. (President), Gunasekara J. and
Pulle J.
THE KING v. MARSHALL APPUHAMY
Appeal 4 and Application 6
S. C. 4-M. C. Negombo, 58,963
Court of Criminal
Appeal-Evidence Ordinance, section 32 (1)-Statement of deceased prior to
death-Admissibility-Meaning of " circumstances of the transaction."
The statement of a deceased person which is admissible under section 38 (1) of
the Evidence Ordinance may be one which was made before the cause of death
arose, or before the deceased had any reason to expect to be killed. The
transaction contemplated by the section cannot be restricted to the physical
cause of death and would include the connected events which culminated in death.
APPEAL, with application for
leave to appeal, against a conviction in a trial before a Judge and Jury.
D. W. F. Jayesekera, for accused appellant.
R. R. Crossette-Thambiah, K.C., Solicitor-General, with A. G. Alias, Crown
Counsel, for the Crown.
Cur. adv. vult.
February 27, 1950.
JAYETILEKE S.P.J.-
The appellant was charged with having murdered one Wettige Elizabeth on
September 19, 1949. He was convicted by a divided verdict of the jury and
sentenced by the presiding Judge to death.
The principal witness for the prosecution was Ana Maria, the mother of the
deceased. She said that about two or three days prior to the death the deceased
complained to her that the appellant made an improper suggestion to her, that
she did not agree to it and that she did not want him to come to the house. Soon
after the complaint was made to her by the deceased she went to the appellant
and she asked him not to come to her house. On the day of the tragedy at about
1.30 p.m. she and the deceased were standing in front of their house when the
appellant came along the road saying " magay veday hari " (my work is right).
Then she and the deceased ran along the road towards a neighbour's house,
whereupon, the appellant pursued them and stabbed the deceased with a kris knife
on the chest. Then the deceased fell down, whereupon, the appellant stabbed her
several times. The appellant admitted that he stabbed the deceased, but he
stated that he did so under grave and sudden provocation.
The main point taken at the argument before us was that the statement alleged to
have been made by the deceased to Ana Maria was not admissible in evidence under
section 32 (1) of the Evidence Ordinance.
Statements written or verbal of relevant facts made by a person who is dead ....
are themselves relevant facts in the following cases-(1) when the statement is
made by a person as to the cause of his death, or (2) as to any of the
circumstances of the transaction which resulted in his death in cases in which
the cause of that person's death comes into question. This section is identical
with section 32 (1) of the Indian Evidence Act, 1872, which was interpreted by
their Lordships of the Privy Council in the case of Swami v. King Emperor
[{1939) 1 A.E.R. 396.] The facts of that case are as follows : -
The appellant was convicted of the murder of one Kurree Nukaraju and sentenced
to death. On March 23, 1937, the body of the deceased man was found in a steel
trunk at Puri, the terminus of a, branch line on the Bengal-Nagpur Railway where
the trunk had been left unclaimed. The medical evidence left no doubt that the
man had been murdered.
There was evidence that the
deceased had reached the appellant's house at the critical time, that a trunk
had been bought by order of the appellant and taken to his house on March 22,
and that the same trunk containing the body of the deceased was placed on the
train at Berhampur on March 23, having been conveyed there in a vehicle ordered
by the appellant in which he and the trunk travelled to the station. The
prosecution proved a statement made by the deceased to his wife that he was
going to Berhampur as the appellant's wife had wr
