[COURT OF CRIMINAL APPEAL]

1950 Present : Gratiaen J. (President), Gunasekara J. and Swan J.

THE KING- v. ASIRVADAN NADAR

Application 25 of 1950

S. C. 32-M. C. Kanadulla, 3,912

Court of Criminal Appeal-Evidence Ordinance, Section 32 (1)-" Dying deposition "-Duty of Court to caution Jury-Requirement of corroborative evidence-Manner of recording dying deposition-Criminal Procedure Code, Section 298
(2).

Where, in a trial for murder, the " dying deposition " of the deceased was led in evidence against the accused under section 32 (1) of the Evidence Ordinance-

Held, that it was imperative that the Jury should have been adequately cautioned that, when considering the weight to be attached to the statements contained in the dying deposition, they should appreciate that the statements of the deponent had not been tested by cross-examination.

Held further, (i) that the attention of the Jury should have been specifically drawn to the question how far the other facts and surrounding circumstances proved in evidence might be said to support the truth or otherwise of the deposition.

 (ii) that whenever Magistrates are called upon to record " dying depositions " in accordance with the procedure laid down in Chapter 23 of the Criminal Procedure Code they should record the deponent's statements in the words, which he actually employs (or, when this is not practicable, in an accurate translation of those actual words). Whenever questions are put to the deponent for purposes of elucidation, the form of the question as well as of the answer should be precisely recorded.

APPLICATION for leave to appeal against a conviction in a trial before a Judge and Jury.

M. M. Kumarakulasingham, for accused appellant.

A. C. Alles, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

May 9, 1950. GRATIAEN J.-

This is an appeal against a conviction for the murder of a man named! Thangasami Nadar, alleged to have been committed at Uduwela in the early hours of the morning of October 2, 1949.

The case for the Crown was that Thangasami Nadar had occasion on the previous day to find fault with the accused, who was his employee; and that at approximately 5 a.m. on October 2 the accused stabbed Thangasami Nadar while the latter was asleep in the " wadia " in which they, and certain other employees of Thangasami Nadar, resided. A blood-stained knife alleged to belong to the accused, was shortly afterwards discovered under the deceased's bed. The man was taken to the Government Hospital at Kuliyapitiya for medical attention. As his condition was serious, the Magistrate was sent for and a " dying deposition " was recorded by him at 8.55 a.m. Thangasami Nadar died at 4.20 p.m. on the same day.

The prosecution called as witnesses at the trial the other inmates of the " wadia ". None of them gave direct evidence of the stabbing, but there can be no question that their evidence, if true, did tend to implicate the accused. The learned Judge did not, however, invite the Jury to consider whether the cumulative effect of this circumstantial evidence was by itself sufficient to establish the guilt of the accused on the charge of murder. We cannot therefore with propriety accede to learned Crown Counsel's submission that the conviction should in any event be upheld on the weight of this evidence alone. As to the extent, if any, to which the Jury believed the witnesses concerned, it is impossible to speculate.

Apart from the evidence of these witnesses, the prosecution strongly relied on Thangasami Nadar's " dying deposition " which was recorded by the Magistrate at 8.55 a.m. on October 2, 1949. The entirety of this document-marked P9-was read in evidence at the trial without -objection by the defence.

Such portions of the deposition P9 as are " statements made by (Thangasamy Nadar) as to the cause of his death or as to any of the circumstances which resulted in his death " constitute