Ranhamy v. Jayawardena
1952Present: Gunasekara J.RANHAMY, Appellant, and JAYAWARDENA (Police Sergeant),
S. C. 1,337—M. C. Hatton, 17,674
Criminal Procedure Code—Section 122 (1) and (3)—Statement to police—Admissibilityin evidence—Signature of witness taken—Irregularity—Evidence Ordinance,s. 157.
Section. 122 (1) of the Criminal Procedure Code provides that.any police officerinvestigating an offence “ may examine orally any person supposed to beacquainted with the facts and circumstances of the case and shall reduce intowriting any statement made by the person so examined, but no oath oraffirmation shall be administered to any such person, nor'shall the statement hesigned by such person”. The purpose of the express prohibition in regard totaking the signature of a witness is that, otherwise, the witness would have astrong motive for standing by the statement imputed to him in the policerecords irrespective of the accuracy of the statement that he actually made or ofthe police officer’s note of it.
Although a statement made by a witness to a police officer in the course ofan inquiry under section 122 (1) of the Criminal Procedure Gode is admissibleeither as corroboration of his evidence under section 157 of1 the EvidenceOrdinance or for the purpose of contradicting him, it cannot be led in evidenceuntil after the witness has given the evidence that is to be corroborated ,orcontradicted by the statement to the police.
j^LPPEAXi from a judgment of the Magistrate’s Court, Hatton.
S. Nadesan, for the accused appellant.. –
. Ananda Pereira, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
2 (1921) 22 N. L. R. 385 at 391.
(1943) 44 N. L. R. 470 at 475.
GXnSTASETC.AHA J.—RanTiamy v. Jayawardena
September 12, 1952. Gttnasekaka J.—
The appellant, Raohamy, was convicted on charges of voluntarilycausing hurt to one Charles Fernando and grievous hurt to one Wilbertde Silva by stabbing them with a knife on the 1st December, 1950, atLogie Estate in Talawakele. At the close of the argument in appeal Iset aside the conviction and said that I would give my reasonslater.
A man named Kalyanaratna Hemachandxa who was tried jointly withthe appellant on charges of abetment of the offences alleged against thelatter was acquitted by the Magistrate on the ground that the evidenceagainst him was unreliable. This was the evidence of Kalyanaratna’sown brother Chandradasa Hemachandra and the two injured men, Charlesand Wilbert, each of whom gave direct evidence of instigation. The mainground of appeal was that having rejected the evidence of these threewitnesses on this point the Magistrate could not reasonably accept thecase against the appellant.
The prosecution arose out of an incident that occurred on the eve of apoll for the election of a member of the local urban council to represent theward in which the Logie Estate lines were situated. Chandradasa, whobelonged to a party headed by one Wickremasooriya, was one of thecandidates ; and Kalyanaratna, who was contesting Wickremasooriyahimself in another ward, supported Chandradasa’s opponent. Accordingto the case for the prosecution, Chandradasa, Charles, Wilbert and twoothers went to Logie Estate at about 10 p.m. on the day in question tocanvass votes. They went there in Chandradasa’s car, driven by hischauffeur David, and alighted from it about 50 feet in front of the estatefactory. They found the factory lit up and a bon-fire outside, and therewas a crowd of some 200 persons between the car and the factory, some ofwhom wore the emblem of the opposing party, and a smaller numberthat of their own party. A sub-inspector of police, Nandalochana, wasthere when they arrived and was seen by Chandradasa in the light of theheadlamps of his car as he stepped out of it. At that time, according toChandradasa, Charles and Wilbert, the crowd was peaceful and orderlyand not even noisy, and they walked towards the crowd. Charles wasleading, followed by Wilbert at a distance of about 15 feet and Chandra-dasa, who was about the same distance behind Wilbert. According toall three of them, Kalyanaratna, who was one of the crowd, called out asthey approached, “ These are the chandiyas ! stab them ! ” or wordsto that effect, and Charles and Wilbert were quickly surrounded andstabbed. Each of them received two stabs on the back of the chest, andeach stated in evidence that when he was stabbed he turned round andsaw the appellant behind him with an uplifted knife. Chandradasa statedthat he saw the appellant stab Charles once and he himself immediatelygot back into his car and went to Wickremasooriya’s house which washalf a mile away, and told him “what took place”. Before he left hehad heard Wilbert cry out that he too had been stabbed ; but he did nothear him say by whom. Charles was stabbed, according to both Chandra-dasa' and himself, about 10 to 15 feet from where Sub-inspector Nanda-lochana was, and. Charles stated in his examination in chief that he
rtTTNrASF.TCAR A J.—Ranhamy v. Jayawardena
immediately ran up to the sub-inspeetor and told him that he had beenstabbed. Under cross-examination he improved upon this evidence andclaimed to have told Him that he had been stabbed by the appellant.
Sub-inspector Nandaiochana too gave evidence for the prosecution. Hisaccount of what was happening at Logie Estate when he arrived therecontradicts the account of the circumstances of the stabbing that wasgiven by Chandradasa and the two injured men. Nandaiochana had beenpatrolling the district b;y car and had gone towards Logie Estate becausehe had heard that there was a disturbance there. When he got near thefactory he saw a very large crowd and, far from finding them behavingin a peaceful and orderly fashion, he heard shouting and the noise of adisturbance while he was yet approaching the plaqe by car. He got outof the car and tried to restore order, -with the help of a sergeant and twoconstables. Having failed in their efforts they got back into the car togo to the Lindula police station to fetch a party of armed police. AsNandaiochana was about to get in, Charles came up to him and said thathe had been stabbed. <! I was on the road ”, says Nandaiochana. “ Ihad not got into the factory premises. I only know that when I was aboutto get into the car Charles Fernando oame and told me that someonestabbed him. At that time Sergeant Jayawardena was already in the car. ”He does not support Charles’s evidence that he said that it was the appel-lant who had stabbed him. “ I do not remember his having mentioned aname ”, he says. “ At that time there was a big'din. There was a freefight in the crowd. ”
Police Sergeant Jayawardene gave similar evidence.. According to him,too, there was already a great disturbance at Logie Estate when he and thesub-inspector arrived there : “ When we got to Logie there was a bigcommotion there. There were two P. C.’s trying to separate a fight. Sub-inspector Nandaiochana ordered a baton charge. This was of no effect.It was then that I saw two or three people bleeding. The sub-inspectorasked me to get into the same car and went to Lindula and brought anarmed party. ”
Upon the information that Hemachandra gave Wickremasooriya thelatter telephoned successively to the police stations at Talawakele andLindula and the office of the assistant superintendent of police at NuwaraEliya. There is no evidence that any of these messages contained anyreference to the appellant. Hemachandra himself does not say that hetold Wickremasooriya, or any one else at any time, that he had seen theappellant stab Charles ; and Wickremasooriya does not say that Hema-chandra gave him that information. It appears that Hemachandra madeno statement to the police until after the statements of Charles and Wil-hert had been taken by Sergeant Jayawardene at the hospital at 7 a.m. onthe next day. In the meantime he had visited the injured men at the hos-pital in the course of the night and again at about 6 a.m. He admitted thathe had to pass the Lindula police station on his way to the hospital andthat nevertheless he volunteered no statement to the police that night.
One of the grounds upon which the learned Magistrate has rejected theevidence against Kalyanaratna is that no complaint was made againsthim at any time during that night. He considers it to be probable that the
GrtESASEKAKA J.—Ranhamy v. Jayawardena
delay on the part of the police in taking the statements of Charles andWilbert gave them and Chandradasa an opportunity of conspiring toimplicate Kalyanaratna falsely. “ It is difficult to understand ”, he says,.“ why there should have been a delay of about 3 hours at least before theofficer in charge saw the injured persons at the hospital and record theirstatements. If that were done promptly, probably the 2nd accusedwould not have had to stand his trial. ”
The case against the appellant, in so far as it rests on the evidence ofCharles, Wilbert and Chandradasa, is open to the same criticism.
The only other evidence implicating the appellant was that of David(the driver of Chandradasa’s car) and a man namd Peter who had been alorry driver in Chandradasa’s employ at the time in question. The formerstated that he did not see Kalyanaratna at the scene of the stabbing, butthat when the car was stopped the appellant approached them uttering^obscene language, to which Charles objected, and there followed a fightin which he saw “ three or four people assaulting each other ” and thatafter the fight he saw Charles bleeding. Then, he says, Charles said that theappellant stabbed him. Peter too stated that he saw the appellant andCharles at Logie Estate on the occasion of the stabbing and that he sawa fight there. He also said that he heard Charles cry out that the appellanthad stabbed him. The learned magistrate has found in this evidence ofPeter sufficient confirmation of the evidence of Charles, Wilbert andChandradasato enable him to actupon their evidence against the appellant.
It does not appear when David made a statement to the police. He saysthat he was taken to the Lindula police station by Chandradasa and hemade a statement there. The police included him and Chandradasaamong the witnesses for the prosecution only on the 30th June, 1951, sevenmonths after the stabbing. The circumstances in which the evidence-of this servant of Chandradasa came before the court render it valuelessas corroboration of Charles’s evidence implicating the appellant.
In the case of Peter too there is no evidence as to when he made astatement to the police. His name appears in the court proceedings forthe first time in a list of witnessess, appended to a police report undersection 148 (1) (6) of the Criminal Procedure Code, that was filed on the28th February, 1951, three months after the offence. He had been takenby Wickremasooriya to the assistant superintendent of police at SuwaraEliya and had there made a statement to an inspector of police in thepresence of the assistant superintendent. It appears that in spite of theexpress prohibition contained in section 122 (1) of the Criminal ProcedureCode the inspector took the witness’s signature to the note that he hadmade of the statement ; and according to this document made by theinspector, which the witness was unlawfully made to adopt as his ownby signing it, the witness heard Charles cry out that the appellant hadstabbed him. He said the same thing in his evidence at the trial, but onlyin response to prompting by the prosecuting officer, who first reminded himthat he had signed a statement to that effect.
Before the witness was prompted in this fashion the learned magistratehad allowed an application by the assistant superintendent of police,Mr. Jonklaas, who was conducting the prosecution, for leave “ to treat
gunASEKABA .T.—Ranhamy v. Jayawardena
this witness as adverse The justification for this order is not apparentfrom the record. The witness’s evidence up to that point had been asfollows :—
“ On the 1st December X went to L.ogie at about 10 p.m. There were200 or 300 people in front of the factory. It was at night and I did notobserve whether they were wearing badges. I know Mr. C. Hemachandra.He was there. I saw the 1st accused also there. I know Charlie Bass.Charlie Bass did not speak to the 1st accused. I did not see the 2ndaccused there. I did not see Wilbert Silva there. I saw Charlie Bass andthe 1st accused. I saw a fight. I saw some blood. That is all I saw. ”
The’ record proceeds : “ Mr. Jonklaas moves to treat this witness asadverse. Allowed.
Q.Did you make a statement to the police ? (I caution this witnessthat I shall punish him if he perjures.)
A. I made a statement to the police and I signed it ….„
I told the police that I heard Charlie Bass shout : e Itanhamy stabbedme ’. It is true that I heard it. ”
The procedure by which this evidence was elicited from Peter, that heheard Charles shout “ Ranhamy stabbed me ”, is open to objection onseveral grounds. The fact that Peter said so to the police was not admissibleeither as corroboration of his evidence under section 157 of the EvidenceOrdinance or for the purpose of contradicting him, until he had given theevidence that was to be corroborated or contradicted by the statementto the police. At the stage at which he was asked about what he hadsaid to the police he had not given any evidence as to whether he did ordid not hear Charles utter those words. The .question was thereforeinadmissible even if the magistrate’s discretion under section 154of the Evidence Ordinance, to permit a party to cross-examine bis ownwitness, had been properly exercised. Moreover, this questioning aboutthe witness’s statement to the police was accompanied by a warning fromthe magistrate that he would punish him if he gave false evidence. Itwould not be surprising if the witness understood this warning to meanthat he would be punished if he did not stand by the statement to which,as he was ominously reminded, he had set his signature, and the contents ofwhich were now being recalled to his mind so that he might know whatevidence he must give in order to avoid punishment. The witness wouldthus have a strong motive for standing by the statement imputed tohim in the police records irrespective of the accuracy of the statementthat he actually made or of the police officer’s note of it. It is precisely thiskind of situation that the law seeks to. prevent by the prohibition in section122 (1) of the Criminal Procedure Code to which I have referred. Thatenactment provides that any police officer making an inquiry underChapter 12 of the Code “ may examine orally any person supposed to beacquainted with the facts and circumstances of the case and shall reduceinto writing any statement made by the person so examined, but nooath or affirmation shall be administered to any such person, nor shallthe statement be signed by such person”.__
Cooray v. Fernando
When the learned magistrate wrote his judgment he appears to have■regarded Peter’s evidence as that of a -witness whose credibility was"beyond question :
“ Even Peter says that Fernando shouted ‘ Ranhamy stabbed me ’.If it was not Ranhamy who stabbed him of all the crowd present I failto understand why he should have shouted that Ranhamy stabbedhim. ”
It is clear that he has altogether failed to appreciate that this evidencewas given in circumstances that detracted greatly from its probativeforce.
It cannot be said that the verdict in favour of Kalyanaratna was erro-neous. There was no substantial ground for the differentiation of the case.against him from that against the appellant. The conviction of theappellant and the sentence passed on him were therefore set aside.
RANHAMY ,Appellant ,and JAYAWARDENA (Police Sergeant), Respondent
Ranhamy v. Jayawardena