TEXXEKOOX, C. J.—Raphael v. The State
Present: Tennekoon C.J., Sirimane J. and Vythialingam J.G. A. J. RAPHAEL, Appellant and THE STATE, RespondentS. C. 15/74—D. C. Colombo B/179
Bribery—accused charged on two counts—evidence of the complainanton the first ^>unt not accepted owing to absence of corroboration—car. such evidence be relied on for the purpose of count two ?
Where the accused was charged under section 19 of the BriberyAct un twe counts the District Judge acquitted the accused on thefirst charge, because there was nothing to corroborate the com-plainant’s evidence and because it would be dangerous to convicton his sole uncorroborated testimony.
Held : That the accused' should also be acquitted on count twobecause, where an accused is tried on two. connected but differentcharges In the same proceedings, a conviction on one count cannotbe based on evidence which has by implication been rejected by anorder of acquittal on the other count.
A PPEAL from a judgment of the District Court, Colombo.
E. R. S. R. Coomaraswamy with Daya Perera and T. Joganathanfor the accused-appellant.
T. Wickremasinghe, State Counsel, for the State.
July 2nd, 1975. Tennekoon, C.J.—-
The accused-appellant in this case was charged on two Countswhich were as follows : —
“ 1. That on or about the 21st day of August, 1973, atAkkaraipattu, you being a public servant, to wit:Medical Officer, Akkaraipattu Hospital, did accept agratification of a sum of Rs. 25 from A. Meera Lebbeas an inducement or a reward for your performing anofficial act, to wit: giving treatment to and attendingcn Mohamed Lebbe Marian Bee Bee, a patientadmitted to the Akkaraipattu Hospital and that youare thereby guilty of an offence punishable underSection 19 of the Bribery Act.
2. That on or about the 3rd day of September, 1973 atAkkaraipattu and in the course of the same transac-tion you being a public servant as aforesaid did accepta gratification of a sum of Rs. 25 from the said A.Meera Lebbe as an inducement or a reward for yourperforming the aforesaid official act, and that you arethereby guilty of an offence punishable under Section19 of the Bribery Act. ”
The statement of facts which accompanies the Indictmentstates that the complainant, one Meera Lebbe, a son-in-law of apatient who had been admitted to the Akkaraipattu hospital had
1**—A 10300 (76/01)
TENNEK.002ST, C. J—Raphael v. The Stale
been asked by the accused for a sum of Rs. 25, if he was to keepthe patient in hospital and for better treatment to be given. Thecomplainant said that one Raffaideen was present at this time.Then again this statement proceeds to say that the complainant,Meera Lebbe had met the accused in the hospital and that theaccused had demanded a further sum of Rs. 25 and stated thatif such amount is given the patient will recover soon. The state-ment of facts alleges that one Aliyar was present when thisdemand was made. Both these witnesses were put down in thelist of witnesses, attached to the indictment. But neither of themwas called. The learned District Judge acquitted the accused onthe first charge, because there was nothing to corroborate thecomplainant’s (Meera Lebbe’s) evidence and in doing so he saidthat it would be dangerous to convict on his sole uncorroboratedtestimony.
Regarding the second charge, the accused had admitted thathe accepted the sum of Rs. 25 on the day in question in thesight and hearing of witness Thirunavakarasu, who was one ofthe “ trap ” officers of the Bribery Department. His positionwas that he had informed the complainant that the patientshould be given a drug known by the name “ Chyramol ” whichwas a drug not available in the Akkaraipattu hospital and wasprobably available outside at Kalmunai or Batticaloa ; thismedicine the accused had told the complainant was necessarybecause of the serious nature of the injuries on the head of thepatient which had been caused by a blow with an axe. Althoughthe injury had been sutured and healed, it had left a certainamount of tenderness under the skin. There were also certaincontusions though not of a serious nature on other parts of thebody- This drug, the accused stated, was the best drug to beused for contusions, and this evidence was supported by theprosecution witness Dr. Singanayagam who himself testifiedthat “ Chyramol ” was the best drug for the treatment of con-tusions and for the kind of contusions that may exist under aserious external injury. The accused’s position was that thecomplainant had requested him to obtain this drug for thepatient and the Rs. 25 was given to him for that purpose.
There is no evidence coming from any of the prosecution wit-nesses as to the purpose for which this money was given to thisaccused. There is of course the uncorroborated evidence of thecomplainant that the accused had on an earlier occasion askedfor this money for the attendance on the patient. This witness isone in respect of whom the learned District Judge has alreadysaid that it would be unsafe to convict on his uncorroboratedevidence. In the case of Nalliah v. Herat, 54 N. L. R. 473,where Gratiaen J. held relying on the authority of thePrivy Council case, Sambasivam vs. Public Prosecutor.
PATHIRANA, J.—Sumanadasa v. The State
Malaya (1950 A. C. 458, that where an accused is tried on twoconnected but different charges in the same proceedings, a con-viction on one Count cannot be based on evidence which has byimplication been rejected by an order of acquitdl on the otherCount. This case is undistinguishable from the case before us.We think therefore that in respect of the second charge theprosecution has failed to prove that the sum of Rs. 25 was accept-ed by the accused as an inducement or a reward for performingan official act. The appeal therefore succeeds ; we set aside theconviction and sentence in respect of the 2nd Count and acquitthe accused.
Simmane, J.—I agree.
Vythialingam:, J.—I agree.
G. A. J. RAPHAEL, Appellant and THE STATE, Respondent