Queen, The V. Geeris Appu

[COURT OF CRIMINAL APPEAL]

1955 Present: Gratiaen J. (President), Pulle J. and Weerasooriya J.

K. DON GEERIS APPU, Appellant, and THE QUEEN, Respondent
APPEAL 13, WITH APPLICATION 19

S. C. 45-M. C. Polonnaruwa, 19,734

Trial before Supreme Court-Failure of prisoner to disclose his defence before trial-o Liability to be cross-examined on it--Summing-up--Misdirection-Criminal Procedure Code, s 160.

It is improper to cross-examine a prisoner in regard to his failure to disclose his defence before trial, in the course of the statutory statement made by him under section 160 of the Criminal Procedure Code.

In a trial for murder, the prisoner gave evidence stating that the offence was in fact committed in his presence by one of the witnesses for the prosecution. In spite of protest by his Counsel questions were permitted by Court to be put in cross-examination conveying to the Jury that the defence raised by the prisoner was false by reason of the fact that in his statutory statement he had merely said " I am not guilty " and had not stated that the deceased was stabbed by the witness for the prosecution.

Held, that the cross-examination was improper and that the trial Judge, having failed to uphold the objection against it, should have warned the jury most explicitly, in the summing-up, that the accused was well within his rights in not elaborating his defence at the time he made the statutory statement and that he did not thereby put himself in peril of having his defence rejected.

APPEAL, with application for leave to appeal, against a conviction in a trial before the Supreme Court.

A. B. Perera, with J. C. Thurairatnam, for the accused appellant.

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

Cur. adv. vult.

March 14, 1955. PULLE J.-

The prisoner, K. Don Geeris Appu, was found guilty by a verdict of five to two of having on the 13th July, 1954, committed murder by causing the death of one H. T. Podiappuhamy and was sentenced to death. One of the grounds urged against the conviction was that the learned trial Judge permitted inadmissible questions to be put to the prisoner during his cross-examination, in spite of objection raised by his counsel, on the statement made by him to the Magistrate before commitment under section 160 of the Criminal Procedure Code. It was further submitted that the Judge omitted to tell the jury in his charge that they should not draw any inference unfavourable to the prisoner on that part of the cross-examination and that such omission amounted to

such a misdirection as to justify the conviction being set aside. At the close of the argument we quashed the conviction and sentence and ordered a re-trial and announced that the reasons for the decision would be put down later in a written judgment.

The question arises as follows : The prosecution relied on the evidence of three witnesses who stated that on the night of the 13th July, 1954, they saw the prisoner stabbing the deceased on the high road leading to a village called Giritale at a spot a short distance away from the boutique belonging to the deceased. One of these witnesses was R. Charles Appuhamy. His version of the incident was that the deceased called at his house at about 8 .30 or 9 p.m. As they were engaged in conversation he heard words of abuse being uttered in a loud tone. This apparently was a reference to a part of the incident spoken to by the other two witnesses according to whom the prisoner went up to the boutique armed with a knife and uttered threats that he had come to murder the deceased. The deceased on hearing the shouts left the company of Charles Appuhamy and went towards his boutique, although Charles Appuhamy tried to persuade him to stay back. Then Charles Appuhamy also went in the same direction and he saw the prisoner moving towards the deceased and stabbing him. The prisoner then approached Charles Appuhamy with the kn

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