HOWARD C.J.—The King v. Perera.
1940Present: Howard C.J. and Soertsz J.
THE KING v. PERERA.
99—D. C. (Crim.) Colombo, 12,550.
Evidence—Evidence of acts unconnected with the charge—Statements made to
Police Officer in course of inquiry—Right to use such statement to con-tradict witnesses—Criminal Procedure Code, s. 122 (3) (Cap. 16).
The driver of an omnibus belonging to X was charged with committingmischief by intentionally reversing his omnibus so as to collide with anomnibus belonging to Y.
It was alleged by the prosecution that there was rivalry between Xand Y and evidence of other incidents of a similar nature was proved.The accused did not participate in those incidents apart from the fact ofhis employment under X.
Held, that the evidence of incidents unconnected with the charge wasinadmissible.
Statements made to a Police Officer in the course of an inquiry underChapter XII of the' Criminal Procedure Code may be used for thepurpose of discrediting a witness under section 155 (c) of the EvidenceOrdinance.
Dias v. Kiriwanthia (5 C. W. R. 187) followed.
^^PPEAL from a conviction by the District Judge of Colombo.
R. L. Pereira, K.C. (with him J. E. M. Obeyesekere), for the accused,appellant.
Nihal Gunasekera, C.C., for the Crown, respondent.
Cur. adv. vult.
February 28, 1940. Howard C.J.—
The appellant was convicted on September 15, 1939, in the DistrictCourt of Colombo of committing mischief on July 16, 1938, at Peliyagodaby wilfully and intentionally backing his omnibus Nvo. X 4524 andmaking it collide with omnibus No. Z 3695, property o^, one G. D. E.Malwana,. and thereby caused loss or damage to the ^said omnibusNo. Z 3695 to the amount of Rs. 571.60 and thereby committing anoffence punishable under section 410 of the Ceylon Penal Code. Theappellant was acquitted of a further charge of committing an offencepunishable under section 426 of the Ceylon Penal Code. The two omni-..buses concerned in this collision belonged to rival owners, Z 3695 beingthe property of G. D. E. Malwana, whose buses are called “ Siyarata ”,■and X 4524 the property of another owner whose buses are known as“ M. J. ”. The story told by Peter, the driver of bus Z 3695, and the othereye-witnesses called by the Crown was as follows:—Z 3695 leftKurunegala about 8.30 a.m. on the dhy in question en route for Colombo.As Z 3695 approached the Socony Petrol Service Station at Peliyagodaon the new main road to Kandy, Peter saw ahead of him an M. J. bushalted on its left facing the direction of Colombo. As he approachedcloser he saw another bus belonging to the M. J. Company coming fromthe direction of Colombo. The oncoming M. J. bus, as it neared thehalted M. J. bus,' began to decrease its speed and came so close to thehalted M. J. bus that there was no room for Z 3695 to pass in betweenalthough there was ample room for the oncoming bus to have kept to its
HOWARD C.J.—The King v. Perera.
left and permitted Z 3695 to pass between it and the halted M. J. bus.In these circumstances, Peter says, he brought his bus to a halt aboutthirty feet behind the halted M. J. bus to permit of the oncoming bus tokeeping to the course it had set itself. – About a minute or half a minuteafter he had halted his vehicle and, as the oncoming M. J. bus was passingaway, the M. J. bus No. X 4524 that was halted in front of him wasreversed by the accused who was driving and dashed into him. Peterfurther says that after the first impact bus X 4524 was driven forwardabout two or three fathoms and reversed a second time into his bus. Atthis stage he got down from his bus and saw the operation repeated bythe M. J. bus once more. Peter also says that after the first impact heheard someone near the bus say, “ Micheal, knock it till it is reduced tomatchwood ”.
The case for the prosecution is based on the ground that as the result ofin tor-bus rivalry, there was an organized conspiracy on the part ofemployees of the M. J. firm to harass the Siyarata buses and thisconspiracy culminated in the wilful damage inflicted on bus Z 3695 asthe result of the deliberate backing of X 4524 by the accused. It issuggested by the prosecution that the shutting in of Z 3695 between theoncoming M. J. bus from Colombo and the stationary X 4524 wasdeliberately planned. As additional proof of such a conspiracy a wholemass of evidence has been tendered by the prosecution of events whichare alleged to have happened on the Kurunegala-Colombo road not onlyon the day in question but also on the two previous days, the 14th and 15th.This evidence seeks to establish that M. J. buses were continually harassingPeter, the driver of bus Z 3695. in the course of his journeys toColombo on these particular days. Not only has evidence of the factsof these harassings been tendered, but also complaints made by Peter tothe police and to his master with regard to what happened. I am unableto understand the relevancy of this evidence in relation to the chargeagainst the accused. It has not been established that the accused was aparty to such a conspiracy on the part of M. J. employees. There is noproof that he participated in the harassings that are alleged to have takenplace earlier in the day and on the two previous days on the Kurunegala-Colombo road. The only connection between the accused and thesehappenings is the fact that he, like the persons who are alleged to havebeen responsible for them, is an employee of the M. J. firm. That fact initself is in my opinion insufficient to permit the admission of such evidencein a criminal charge against the accused. All this evidence was clearlyinadmissible;. Perusal of the judgment of the learned District Judgeindicates only too clearly the extent to which he has been influenced bythis evidence in coming to a decision. Thus he refers to a few facts withregard to the bus rivalry which he regards as furnishing the backgroundto the incidents that form the subject-matter of the charge. He alsostates that the motive behind the commission of the offence would seemto be to wreck the newly started bus service by Malwana and to force himto keep off the road. The whole judgment of the learned District Judgeis coloured with the idea of a planned attempt on the part of the M. J.firm to harass and injure their rivals. In these circumstances it is
HOWARD C.J.—The King v. Perera.3fll
obvious that for no reason other than the improper admission of thisevidence the conviction cannot be allowed to stand.
Apart from the improper admission of evidence to which I have referredthere are other grounds for allowing this appeal. Counsel for the appellantsought in the District Court to cross-examine the witness Appuhamy onan alleged statement made by him to P. C. Wambeek. This cross-examination was disallowed by the District Judge under section 122 (3)of the Criminal Procedure Code. P. C. Wambeek when tenderingevidence for the defence was asked a question with regard to somethingAppuhamy had told him. An objection by Crown Counsel the question.vas disallowed. It seems to me that these questions were disallowed asthe result of an erroneous interpretation of section, 122 of the CriminalProcedure Code. Statements made to officers conducting inquiriesunder Chapter XII of the Criminal Procedure Code can be used to provethat a witness made a different statement at a different time. Suchstatements may be legitimately used for the purpose of discrediting awitness under section 155 (c) of the Evidence Ordinance. In this connec-tion I would refer to Dias ■». KiriwanthiaIn my opinion the questionsto Appuhamy and P. C.. Wambeek which Counsel desired to put with, theexpress purpose of discrediting the former should have been allowed.
As distinct from legal questions affecting the admissibility of evidenceI am of opinion that the evidence taken as a whole falls far short of thestandard required for the conviction of the appellant on a criminalcharge. The story put forward by the prosecution was of a mostimprobable character. It presupposes that those engaged in theconspiracy had selected this particular spot for their nefarious design.If such a design was planned, it is highly improbable that this particularlocality would have been selected. The road was wide, the traffic wasvoluminous and moreover it was contiguous to a police station. Footpassengers must have been numerous. The locality does not seem tolend itself for such an object particularly as, according to the case putforward by the prosecution, ample opportunities were available earlier inthe morning when Z 3695 was being hemmed in by M. J. buses all theway from Kurunegala. For its success the plan required that thestationary bus X 4524 and the oncoming bus from Colombo shouldconduct their manoeuvres at this spot at the very moment when Z 3695arrived at the locality. It is impossible to imagine that such accuratetiming of the movements of the three buses could have been planned. Ifthe probability of the story of the prosecution is to be judged by ordinarystandards of common sense, it is highly improbable even allowing forintensive bus rivalry that the owners of M. J. buses would risk the injuryto X 4524 by an operation of this nature.
I have not only to consider the probability of the story put forward bythe prosecution, but also the weight of evidence. It seems to me thatthe learned Judge has not fully appreciated the evidence of the MotorEngineer. Mr. Beven. His evidence is to the effect that the tyre marksare indicative of the brakes of Z 3695 having been applied whilst thisbus was in motion. This and the position of the two buses suggest that
5 r. ir. n. ixr.
Anujee v. Lewis.
Z 3695 ran into X 4524, and thus the whole fabric of the case for theprosecution as built up falls to the ground. This theory is also supportedby the fact that Z 3695 was not found pulled up parallel to the road, butwas straddled across the road at an angle.
The learned District Judge has not only failed to distinguish betweenthe inherent probabilities of the two stories and to give due weight to thetechnical evidence, but has also failed to take into consideration the factthat only two out of the twenty-four passengers in the bus have testifiedon behalf of the prosecution. I think the verdict was clearly contrary tothe weight of evidence and, in the circumstances, the appeal must beallowed and the conviction set aside and the appellant discharged.SoertszJ.-I agree.
THE KING v. PERERA