[IN THE COURT OF CRIMINAL APPEAL]

1963 Present: Basnayake, C.J. (President), Herat, J., and Abeyesundere, J.

THE QUEEN v. R. D. ABADDA

APPEAL No. 8 OF 1963, WITH APPLICATION No. 8

S.C. 38/62-M. C. Kurunegala, 13422

Evidence-Confession-Inadmissibility of even an innocuous portion of it-Use of confession to discredit accused-Illegality-Evidence Ordinance, ss. 25, 156 (3).

      The question whether a statement made by an accused person to a police officer is a confession within the meaning of section 25 of the Evidence Ordinance is one that has to be decided upon reading the entire statement. If the statement as a whole contains a statement that the accused person committed an offence or that suggests the inference that he committed an offence, then it would come within the prohibition contained in section 25 of the Evidence Ordinance.

        Where the accused's statement contains a confession, the prohibition contained in section 25 of the Evidence Ordinance bars the proof against the accused of not only those portions of the statement which admit guilt or suggest the inference that he committed the offence but also those portions of the statement which when taken out of the context by themselves are innocuous. No portion of a confession can be proved against an accused person.

         A statement barred by section 25 of the Evidence Ordinance cannot be used under section 156 (3) for the purpose of discrediting the accused.

APPEAL against a conviction in a trial before the Supreme Court.

                                       D. G. Jayalath (assigned), for the Accused-Appellant.

                                        Wakeley Paul, Crown Counsel, for the Crown.

May 30, 1963. BASNAYAKE, C.J.-

       The appellant was indicted with the offence of murder by causing the death of Gunandawadu Deelin Soysa Wickremasinghe on 28th March, 1962. He was found guilty of voluntarily causing grievous hurt and sentenced to undergo a term of five years' rigorous imprisonment.

        Of the grounds of appeal stated in the Notice of Appeal, learned counsel for the appellant confined himself to two, namely-

     " (1) The learned Judge permitted the Crown to cross-examine the accused on a statement made to the Police Inspector to the effect that the accused had the knife marked P2 in his hand at the time of the incident. The prosecution alleged that this was the knife used to cause the injury. Under the circumstances of this case, it is submitted that the accused's statement was a confession and its reception offended section 25 of the Evidence Ordinance.

      (2) (b) In His Lordship's summing, up, the position was not made clear that the jury could arrive at a verdict, considering the evidence as a whole. Instead His Lordship conveyed the view to the Jury that

if they disbelieved the accused in his denial of a statement that the police alleged he made, then they must reject the defence and fall back on the evidence of the witness S. A. Jayasena. It is submitted that the Jury, properly directed, may have taken the view that assuming the accused had the knife P2 with him and considering the location of the injury, that he acted in defence. "

In support of the first ground learned counsel referred us to the following record of the proceedings while the appellant was under cross-examination:-

       " 877. Q. That night the police came to your house and arrested you at about 8.30 p.m. ?

               A. Yes.

         878. Q. On the 29th night ?

             A. Yes.

         879. Q. And at your house they recorded your statement ?

            A. Yes. "

Crown Counsel:

        " I intend to put a certain passage to this witness. Might the jury be asked to retire, My Lord. "

              Court: Yes.

        Jury retires at 10.06 a.m.

            Court: You might show the portions which you wish to put to Mr. Silva.

 Passage.

   " On 28.3.62 at abou