[COURT OF CRIMINAL APPEAL]

1950 Present: Jayetileke C.J. (resident), Dias S.P.J., Gunasekera J.,
Pulle J. and Swan J.

REX v. JINADASA

APPEAL ARISING OUT OF APPLICATION 66 OF 1950

S. C. 28-M. C. Matara, 14,167

Court of Criminal Appeal-Evidence-Confession-Investigation under section 122 of Criminal Procedure Code-How much of information received from accused may be proved-Admissibility of statement leading to discovery of relevant fact-Difference in admissibility between oral statement of accused and his recorded statement-Evidence Ordinance (Cap. 11), ss. 27, 91-Criminal Procedure Code (Cap. 16), ss. 122 (3)-Court of Criminal Appeal Ordinance, No. 23 of 1938, Proviso to s. 5 (1).

A was charged with the murder of B. The evidence against him was circumstantial. The mistress of B stated that at about dusk on the day in question the appellant, A, came to her house and took away a katty which the medical evidence conclusively proved was the weapon with which B was killed. At about 9 or 9.30 p.m. A returned to her house without the katty. The next morning A gave certain information to the Police which led to the discovery of the body in a stream. A was then arrested. In the course of the Police inquiry under section 122 of the Criminal Procedure Code A told the Police " I can point out the place where I threw it " (meaning the katty). Thereafter A took the Inspector of Police to the scene and picked up the katty which was hidden in some bushes and handed it to the Inspector.

The prosecution moved that section 27 of the Evidence Ordinance (a) to prove the portion of the oral statement made by A to the Police which led to the discovery of the katty, and (b) to produce the extract from the Information Book in which that portion of the statement was recorded. The trial Judge allowed both applications.

Held (by the majority of the Court), (i) that the oral statement of A which led to the discovery of the katty was admissible, (ii) that the prohibition contained in section 122 (3) of the Criminal Procedure Code does not apply to the oral statement of a person made in the course of a Police investigation. The prohibition applies only to the production of the written record of the oral statement.

R. v. Haramanisa (1944) 45 N. L. R. 532 dissented from.

Held further, that, although the extract from the Information Book was improperly admitted, there was no substantial miscarriage of justice, and the proviso to section 5, (1) of the Court of Criminal Appeal Ordinance was applicable.

APPEAL. with application for leave to appeal, from a conviction in a trial before a Judge and Jury.

M. M. Kumarakulasingham, with D. W. F. Jayasekera, J. C. Thurairatnam and G. Rajanathan, for the accused appellant.-The question for decision are-(1) Whether oral evidence regarding the statement

of the accused, " I can point out the place where I threw it,", which led to the finding of the katty, and (2) whether the document X2, namely, the certified copy of the passage in the Information Book where that statement had been recorded, were rightly admitted at the trial. It is submitted that this evidence has been wrongly admitted. Section. 122 (3) of the Criminal Procedure Code in effect repeals section 27 of the Evidence Ordinance so far as a statement to a Police officer is concerned. The effect of the corresponding section of the Indian Criminal Procedure Code, section 162, on section 27 of the Indian Evidence Act was considered by the Privy Council in Pakala Narayana Swami v. Emperor [1 A. I. R. (1939) P. C. 47.]. The Lahore High Court in Hokum Khuda Yar v. Emperor [2 A. I. R. (1940) Lahore 129] held that section 27 of the Indian Evidence Act was pro tanto repealed by section 162 of the Indian Criminal Procedure Code. The Allahabad High Court took a similar view in Baldeo v. Emperor [3 A. I. R. (1940) Allahabad 263 ]. For contrary views see Biram Saidar v. Emperor [4 A. I. R. (1941) B