MOSELEY A.C.J.—The King v. Dassenayake.
1943Present: Moseley A.C.J.
THE KING v. DASSENAYAKE.
. 903—M. C. Jaffna, 20,046.
Statement to Police Officer—Complainant cross-examined, on statement—Statement put in by Police Officer in course of evidence for defence—Criminal Procedure Code, s. 122 (3).
Where a complainant was cross-examined on a statement made byhim to a Police Officer in the course of his investigation to the offencein order to show that his evidence was contradictory of his statementand where the entire statement was put in by the Police Officer in thecourse of his evidence for the defence.
Held, that the Court was entitled to take the statement into consider-ation in deciding whether the story of the complainant was substantiallytrue.
The King v. Davith Singho (37 N. h. R. 313), followed.
PPEAL from a conviction by the Magistrate of Jaffna.
H. V. Perera, K.C. (with him C. S. Barr Kumarakulasingham, U. A.Jayasundera, F. W. Obeysekere and H. W. Jayewardene), for the accused,appellant.
S. J. C. Schokman, A.S.-G-, (with him T. S. Fernando, C.C.), for thecomplainant, respondent.
'Cur. adv. vult.
June 9, 1943. Moseley A.C.J.—
The accused-appellant, an Inspector of Police, was charged with thefollowing offences: —–
Wrongful confinement; and
Causing grievous hurt.
Each offence was alleged to have been committed towards the person ofone Kathiravelu, a barber, who had come to reside in Jaffna a week or twobefore the date of the alleged offences which it is said were committed
MOSELEY A.C.J.—The King v. Dassenayake.347
in the course of the same transaction. The appellant was convicted oncharges 1, 2, and 4. The medical evidence disclosed that hurt andgrievous hurt had been caused and it was admitted by the appellantthat he had tied Kathiravelu up in the manner alleged by the latter.The points for decision were:—were the injuries inflicted by theappellant in the circumstances affirmed to by Kathiravelu and was theconfinement wrongful ?
The story told by Kathiravelu was that he was invited to the houseof the appellant by a boy named Kulasekera, a servant of the appellant,to see a female inmate of the house, and that as he approached the gatehe was seized by the appellant who dragged him into the compound,tied him to a pillar, and there and then assaulted him, taking him laterto the shore of the lagoon where he was further ill-treated, stripped andthrown into the water. The appellant’s version, on the other hand,.was that he had found Kathiravelu at about 10 p.m. seated on the boy’smat at the back of the house, that the man attempted to run away, that-he had chased the man, caught him and struggled with him, that in thecourse of the struggle the man must have sustained the injuries found bythe medical witness, and that he tied the man to the pillar in order to detain,him pending the receipt of instructions from A. S. P. de Zoysa to whom,or to whose house, the appellant had telephoned asking the A. S. P.to come to the spot. He had apparently assumed that Kathiraveluhad come to the house to have improper relations .with the boy since,he was told, he says, by Kathiravelu that the boy had invited him thereand he had given the boy 25 cents. I would observe here that themedical witness, who examined Kathiravelu nearly four days afterthe incident found twenty-one. distinct injuries, most of them trivial,the only serious one being the facture of a rib. His opinion, briefly,was that all the injuries were consistent with the story of a struggleas related by the appellant. His evidence, therefore, was of no greatvalue to the Magistrate when he came to consider the credibility orotherwise of the respective versions. In this connection* however,it is worthy of mention that the appellant at 11 p.m. that night made anentry in the Information "Book at the Police Station in which he omittedto mention that he himself had received any injuries in the course of astruggle which, according to him, lasted two or three minutes. In thecourse of his evidence he stated that the injuries were too trivial tomention. If this be a fact, it seem strange that Kathiravelu sustainedso many injuries, albeit most of them trivial, in the course of the same-struggle.
The trial proceeded on November 10, 11, 12, 13, and 16. On the last daythe evidence of four witnesses for the defence, including that of Inspect-or Rodrigo was recorded, after which the Magistrate called P. G. Thambi-rajah for the purpose of producing the first statement made by the injuredman, after which counsel for the defence addressed the Court andjudgment was delivered forthwith. These details have some bearing uponthe case in view of certain criticisms made by Counsel for the appellant.
The learned Magistrate, in the course of recalling the story put forwardby Kathiravelu, referred to the statement made by Kathiravelu to P. C.Thambirajah, which I think I may say was, during the argument,.
348MOSELEY A.C.J.—The King v. Dassenayake.
admitted to be the first information given to anyone in authority thatan offence had been committed. He found that that “statement as wellas the statement as recorded by Sub-Inspector Rodrigo who went to theNayamakadu Hospital on the night of August 23, 1942, after the injuredman was examined by Police Constable Thambirajah are, as regards themain details, substantially the same as the story narrated to Court bythe injured man. The injured man himself was not examined by theMagistrate until after a petition was presented by the wife of the injuredman to the Magistrate stating that he was on the point of death. TheMagistrate then proceeded to the Nayamakadu Hospital and recordedthe deposition of the injured man, who was then considered to be in aserious condition, on September 8, 1942. His statement to the Magistrateas then recorded, probably as a dying deposition, I find, is substantiallythe same as regards the main incidents as the story which he had placedbefore the Court.
The statements referred to were before the Court and are marked asfollows : —
A. 4 Notes of Sub-Inspector Rodrigo,
X. 1 Statement of Kathiravelu recorded by Police Constable
while the deposition referred to was recorded by the Magistrate whosubsequently commenced non-summary proceedings, which were properlyabandoned in favour of summary proceedings before the AdditionalMagistrate.
The main objection of Counsel for-the appellant is that the Magistrateacted improperly in using these statements, to corroborate the evidenceof Kathiravelu on the ground that A. 4‘ and X. i are statements made toa public officer, in the course of an -investigation and may, therefore,as provided by section 122 (3) of the Criminal Procedure Code, be usedonly to prove' that a witness made a different statement at a differenttime, or to refresh the memory of the person who made such a statement.The objection has no substance as regards X. I since, as I have alreadyindicated, it is now conceded that X. J. is the first information given tothe police and may therefore be properly used to corroborate the evidenceof the person who made it. In regard to A. 4, Kathiravelu was cross-examined extensively in regard to what he had told Sub-InspectorRodrigo. When the latter gave evidence on the last day' of the trial,he produced a certified copy of the statement made to him by Kathiraveluwhereupon the learned Magistrate made the following note: —“ Iindicate to Counsel for the defence that in so far as he refers to recordedstatements made by this witness for the purpose of showing that theinjured man made statements different to the statements made by himin Court, those statements as recorded are admissible in evidence interms of section 122, sub-section (3), of the Criminal Procedure Code.Those statements are marked A. 4. I point out to Counsel for the defencethat if those statements are produced to show that they are contradictory,the entire statement as recorded should be put in evidence, as otherwiseit would be impossible for the Court to find out whether they are in fact-contradictory, unless the Court has before it the entire statement as
MOSELEY A.C.J.—The King v. Dassenayake.
recorded by him. The entire recorded statement is allowed to go in forthe limited purpose of merely ascertaining whether the passages reliedon by the defence as contradictory statements are in fact contradictoryor not. The fact that the entire statement is marked would not entitlethe prosecution to rely upon other statements in it for the purpose ofproving those statements as corroborative evidence of the evidencegiven by the injured man in Court. I mark the entire “ statement A. 4 ”.I do not'find it easy to believe that a Magistrate sufficiently careful todirect himself on this point in such detail and so correctly could, in thecourse of the same day have so far have forgotten his direction that hecould bring himself to act in direct opposition to the principle he hadexpounded. I prefer to believe that what, the Magistrate meant to saywas that notwithstanding the discrepancies between the evidence givenby Kathiravelu and his statements made on the several previous occasions,he was satisfied that his story was substantially true. A similar pointwas raised in The King v. Davith Singho1 in which statements of witnessesrecorded by a Police Officer under section 122 (1) were admitted for thepurpose of contradicting them and were read in toto to the jury. Thejury were told by the trial Judge that “ they were entitled to take intoconsideration the statements made by these witnesses at the investigationmade by the Sub-Inspector of Police in order to decide for themselveswhether or not they were prepared to believe the evidence given by thewitnesses during the trial ”. Dalton J. (Akbar and Poyser JJ. agreeing)was of opinion that the direction was correct. In the present case theMagistrate seems to have, in effect, directed himself on similar lines.
These observations apply, though perhaps not to the same extent, tothe deposition made by Kathiravelu to Mr. Fernando in the hospital.That deposition was not, however, before the trial Magistrate, exceptin so far as the cross-examination of Kathiravelu upon it. In view of whatI have presently to say, I do not think the mind of the Magistrate canhave been seriously influenced by a consideration of the statements andthe deposition.
It must be conceded that the story told by. Kathiravelu cannot incertain details be reconciled with those put forward by Kulasekera,Lewis, and Velupillai, all servants of the appellant, who claim to havebeen eye-witnesses of Some part of the incident. In this connectionit may be said that it would not be unnatural for them to be swayed byconflicting inclinations, on the one hand to give a correct version of theincident, on the other, if necessary, to put things in the best possiblelight for their employer. Moreover, they had been questioned byMr. Rodrigo in the presence of the appellant who “asked them leadingquestions ” and over whom Mr. Rodrigo “ was powerless to exercise anyauthority, he being a senior officer ”. They had also been closelyquestioned by Mr. Bromley who had gone to Jaffna to inquire into thematter. It would not be surprising if these witnesses, whose ages rangefrom 12 to 17, became somewhat muddled.
The learned Magistrate was satisfied that Kathiravelu had “ not toldthe whole story to the Court ”, but the Magistrate 'found it not unnaturalthat he should be unwilling to disclose facts which did not redound to his
1 37 N. L. R. 313.
Nagaratnam and Kandiah.
credit. Nevertheless the conviction grew upon him that the man wasspeaking the truth. I feel strongly that I would have arrived at the sameconclusion. It was suggested that the prosecution is the result of a plotfabricated in the mind of a local proctor. The evidence of such indepen-dent witnesses as Edwards, who says he overheard the appellant speakingto someone at the bungalow of the A. S. P., and Eliyathamby, a fishermanwho says that he found Kathiravelu on the beach, in the conditiondescribed by the latter, make such a suggestion difficult to entertain.
On the other hand there are several features in the defence versionwhich have not been satisfactorily explained. Why should a policeofficer of the standing of the appellant; who considers that an offence(criminal trespass) has been committed on his own premises, and whohas caught the offender in the act, deem it necessary to communicatewith an A. S. P. before taking action ? Why, when he learned thatA. S. P. de Zoysa was not in the bungalow, did he not consult A. S. P. Jilla,who appears to have answered the telephone, instead of leaving a messageasking Mr. de Zoysa to come to the spot ? Why did the appellant andMr. de Zoysa, two experienced officers, take it upon themselves to releasethe man who had been apprehended in the commission of an offence ? Whydid the appellant, with or without the advice of Mr. de Zoysa, deem itnecessary to make the entry in the Information Book to which I havereferred above ? In the absence of credible answers to these questions,it is not surprising that the Magistrate found it proved that “ the boyKulasekera did communicate to his master' on the noon of August 21,1942, that a stranger had made inquisitive inquiries from him and hadmade certain improper suggestions as well which concerned a lady of thehouse”. No doubt it was that communication which led the appellantto lie in wait for Kathiravelu and handle him as it is alleged by the latterthat he did.
The learned Magistrate gave, as he said, his most anxious considerationto the evidence, being fully conscious of the grave consequences to theaccused which would follow from a conviction. He found that the evidenceproved the guilt of the appellant beyond doubt. Having given the casethe same consideration I am, as I have already indicated, in entireagreement with that conclusion. The appeal is dismissed. .
THE KING v. DASSENAYAKE