[COURT OF CRIMINAL APPEAL]

1951 Present: Nagalingam S.P.J. (President), Gratiaen J. and Pulle J.

SEYADU, Appellant, and THE KING, Respondent

APPLICATION 108 OF 1951

S. C. 10-M. C. Mannar, 12,657

Confession-Meaning of term-Admissibility in cross-examination and in evidence in rebuttal-Severability of the non-confessional portion of a confession-o Evidence Ordinance, ss. 17 (2), 25, 145-Court of Criminal Appeal Ordinance, proviso to s. 5 (1).

Under section 25 of the Evidence Ordinance, a confession made to a police officer is inadmissible as proof against the person making it whether as substantive evidence or in order to show that he has contradicted himself. The circumstance that no objection was taken to the reception of such evidence at the time is immaterial.

An " admission " amounts to a " confession " within the meaning of section 17 (2) of the Evidence Ordinance if it purports to admit facts which are capable of being construed as establishing a prima facie case against the accused.

If an accused person, in describing a transaction to a police officer, makes certain statements which, though non-confessional, are inextricably interwoven with other statements: which are confessional it would be improper to circumvent the prohibition contained' in section 25 of the Evidence Ordinance by isolating the former statements from their context.

In a case where a confession has been improperly admitted, the proviso to section 5 (1) of the Court of Criminal Appeal Ordinance should not be applied.

APPLICATION for leave to appeal against a conviction in a trial before the Supreme Court.

The accused, who was charged with murder, gave evidence that the knife with which he stabbed the deceased was that of the latter and that he wrested it from the deceased's hand and used it in self-defence in the course of a struggle. It was elicited in cross-examination and in the evidence in rebuttal, without objection from the defence, that the accused made a statement to the Police in which he had stated that the knife which was used was not that of the deceased but his own. it was submitted in the Court of Criminal Appeal that the alleged statement was a " confession " and should not, have been received in evidence against the accused even for the limited purpose of contradicting his evidence at the trial.

Mahesa Ratnam, for the accused appellant.

H. A. Wijemanne, Crown Counsel, for the Crown.

Cur. adv. vult.

November 30, 1951. GRATIAEN J.-

This is an appeal against a conviction for murder.

It is not in dispute that on 6th July, 1951, the appellant stabbed the deceased person, a man named Sandanam, causing him grievous injuries one of which was necessarily fatal. There was, however, considerable divergence between the version relied on by the Crown and that spoken to by the appellant as to the circumstances which led up to the incident.

According to the witness Thambipillai, Sandanam was accompanying him along the public highway on the morning of 6th July when the appellant, who had approached them from the opposite direction, drew a knife from his waist and stabbed Sandanam; Sandanam fell down, but the appellant continued to stab him several times while his victim lay injured on the ground. Thambipillai claimed to have no knowledge of the motive for this seemingly unprovoked assault.

The appellant gave evidence on his own behalf. He said that, about nine days before this incident, he had surprised his wife, whom he had not previously suspected of infidelity, in an adulterous association with Sandanam ; he assaulted Sandanam and sent his wife away to her parents in Batticaloa. On the morning of 6th July he met Sandanam and the witness Thambipillai on the road, whereupon Sandanam whipped out a knife and attempted to attack him with it. A struggle ensued in the course of which the appellant succeeded in wresting the knife from Sandanam's hand ; Sandanam held the appe