The Queen V. Buddharakkita And 2 Others

 [IN THE COURT OF CRIMINAL APPEAL]

1962 Present : Basnayake, C. J. (President), Sansoni, J.,
H. N. G. Fernando, J., Sinnetamby, J., and de Silva, J.

THE QUEEN v. MAPITIGAMA BUDDHARAKKITA THERA and 2 others

Appeals Nos. 100, 101 and 102 of 1961, with Applications
Nos. 106, 107 and 108

S.C. 8-M. C. Colombo, 23838/A

 
Charges of murder and conspiracy to murder-Evidence-Direct evidence of eye-witnesses regarding murder-Conviction based thereon despite introduction of inadmissible confession-Legality-Weight of unsworn statement from dock-Political motive for conspiracy-Admissibility of evidence reflecting on character, of accused- Statements made by prosecuting Counsel in opening address-Effect of failure to tender evidence in support thereof-Collaboration of accomplice's evidence- Summing-up-Misdirection-Leading questions put to witnesses- Ineffectiveness of irregularities when they do not cause miscarriage of justice- Evidence of an accused inculpating, co-accused-Proper direction to be given to jury-Witnesses- Rule that Counsel should not interview a witness once he is in the witness-box-Statement made to police officer during investigation of a cognizable offence-Admissibility-Conspiracy, between August 1958 and September 1959? to commit or abet murder-Illegality of sentence of death-Penal Code, ss. 102, 113B, 296-Criminal Procedure Code, ss. 121, 122 (3), 123, 134, 232, 283 (4)-Evidence Ordinance, ss. 21, 24, 25, 27, 30, 91, 120 (6), 142, 143, 157- Suspension of Capital Punishment (Repeal) Act No. 25 of 1959, ss. 2, 3 (a)- Interpretation Ordinance (Cap. 2 Revised Ed. 1956), s. 6 (3).

(1) Where several accused are tried jointly, and one of them elects to give evidence on oath in his own behalf and, in doing so, inculpates his co-accused, the jury should be warned of the danger of basing a conviction of the co-accused on the evidence of the witness unless it is corroborated in material particulars. It cannot be contended that the evidence of the witness is totally inadmissible against the co-accused as being a " confession " within the meaning of section 30 of the Evidence Ordinance.

(2) Where, in a case to which section 27 of the Evidence Ordinance did not apply, oral evidence, which was objected to as inadmissible, was nevertheless admitted of an oral statement made by an accused person to a police officer who was investigating a cognizable offence under Chapter XII of the Criminal Procedure Code-

Held, that the use of the oral statement made to the police officer by the accused was as obnoxious to the prohibition contained in section 122 (3) of the Criminal Procedure Code as the use of the same statement reduced into writing. Bex v-. Jinadosa (1950) 51 N. L. R... 529., discussed

(3) It is an unwritten rule that, except in the case of expert witnesses, Counsel - does not interview a "witness once he is in the witness-box. Once the cross- examination commences, even an expert is not interviewed.

(4) Under the Suspension of Capital Punishment (Repeal) Act No. 25 of 1959, only a sentence of imprisonment for life, and not a sentence of death, can be imposed upon the conviction of a person of the offence of conspiracy to commit or abet murder, if the offence had been committed by him during the period of operation of the Suspension of Capital Punishment Act No. 20 of 1958.

The 1st, 2nd and 4th accused-appellants were convicted, at the trial, of conspiracy to commit murder, and the 4th accused was convicted of murder. The 3rd and 5th accused, who were also charged with conspiracy to commit murder, were found not guilty. The deceased was the Prime Minister of Ceylon and the leader of a political party at the time he was shot by the 4th accused on 25th September 1959.
 
Held, (i) that the admission in evidence of a confession made by the 4th accused to the Magistrate, even assuming that the confession was not voluntary and was obn

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