WIMALARATNE. J., RANASINGHE. J. AND ROGRIGO, J.
S.C. 2/84 – H.C. COLOMBO 692/79.
OCTOBER 3, 1984.
Abortion – Death caused by septic abortion – S. 305 of the Penal Code – Dyingdeposition – Perusal and use of it by Judge when not produced before him inevidence – S. 110(4) of the Code of Criminal Procedure Act – Witness refreshingmemory from notes – Conflicting accounts of statement of deceased -'Sections 32and 33 of the Evidence Ordinance – Need for corroboration – Corroboration comingcircuitously from deceased herself and not from independent quarter – Use of falsedenial by accused as corroboration – Miscarriage of justice – Code of CriminalProcedure Act, sections 334 and 335 and Article 138( 1) of the Constitution.
The accused-appellant, a lady Ayurvedic physician was indicted before the High Courtwith having caused the death of one Merlin Ranasinghe a woman with child by insertingtwo pieces of stick ( ajdt s) into her vagina on 22.4.1973 with intent tocause a miscarriage and thereby with committing an offence punishable under s. 305of the Penal Code. She was tried by the Judge without a jury, found guilty andsentenced to two years' imprisonment.
The prosecution version was that on 22.4.1973 the deceased had attended theappellant's dispensary and wanted treatment to abort the child she was carrying. Theappellant had inserted two pieces of stick into her vagina and also put in somemedicine. She had later taken ill and she went to the appellant's dispensary again on23.4.1973 and wanted the sticks removed. But the appellant's treatment not availingthe deceased had entered the Castle Street Hospital where she died on 26.4.1973.
The main contention of the appellant was that the prosecution had failed to dischargeits burden of proving beyond reasonable doubt that the appellant was the person whoinserted the two pieces of stick into the deceased's vagina. On this point theprosecution relied mainly on the evidence of Dr. (Mrs.) Waas. A copy of the statementof the deceased as recorded by Dr. Waas had been produced as P 1 in the Magistrate'sCourt but not in the High Court. This statement P 1 though not produced in evidencebefore him, was perused by the High Court Judge during the trial before him. Theappellant while admitting the visit of the deceased to her dispensary on 23.4.1973denied any such visit on 22.4.1973.
Section 110 (4) of the Code of Criminal Procedure Act No. 15 of 1979 empowersthe High Court Judge to use a statement made at a non-summary proceeding to aid himat the trial but it cannot be used as evidence in the case. Under section 33 of the
Evidence Ordinance evidence given by a witness in a judicial proceeding can be provedat the later stage of the trial in accordance with the provisions of the laws of evidenceand criminal procedure. But here the High Court Judge perused the evidence given atthe non-summary inquiry of the deceased's statement to Dr. Waas and used materialcontained in it for the purpose of his judgment without having taken any steps to havesuch material placed before him in evidence. This procedure is illegal and cannot bejustified.
The deceased had made conflicting statements about how she fell ill. There wereconflicting versions of the deceased's statement. It would not have been therefore safeto act on the evidence of Dr. Waas without corroboration. Such corroboration mustcome from an independent source and not circuitously, as here, from the deceasedherself.
A false denial can amount to corroboration in certain circumstances. For a false denialto amount to corroboration of a witness' evidence such false denial must relate to a vitalissue which is in dispute in the case. The denial of the appellant that the deceasedvisited her in her dispensary on 22.4.1973 cannot be regarded as corroboration.
The statement of the deceased to Dr. (Mrs.) Waas stands, in law, alone anduncorroborated in regard to the identity of the offender. It must not be acted onbecause of the conflicting versionsi
The question of no 'substantial miscarriage of justice' under section 334(1) of theCode of Criminal Procedure Act and Article 138(1} of the Constitution does not aris forconsideration. Section 334 of the Code of Criminal Procedure Act applies only to trialsbefore a judge and jury. Appeals from a verdict of the High Court at a trial without a jurymust be determined according to section 335 of the Code of Criminal Procedure Act.
Cases referred to :
The King v. Asirvadan Nadar (1950) 51 NLR 322, 325.
Mendis v. Paramaswami (1958) 62 NLR 302. 305.
B. F. Lewis Fernando v. The Queen (1952) 54 NLR 274. 277. 278.
The Queen v. Anthonypillai (1965) 69 NLR 34, 38.
The King v. Atukorale (1948) 50 NLR 256.
The Queen v. J'ulis (1963) 65 NLR 505, 526.
Karunaratne v. The Queen (1966) 68 NLR 257. 259.
Dole v. Romanis Appu (1939) 40 NLR 449.
Tennekoon v. Tennekoon 78 NLR 13.
Warawita v. Jane Nona (1954) 58 NLR 1.11.til) Dharmadasav. Gunawathy (1957) 59 NLR 501.
Somasena v. Kusumawathie (1958) 60 NLR 355.
tndrawathie Kumarihamy v. Purijjala (1970) 74 NLR 430.
J. F. Throne and Others (1978) 66 Cr.Ap.Rep.6.
The King v. Fernando (1930) 32 NLR 250, 253.
Martin Fernando v. The Inspector of Police, Minuwangoda (1945) 46 NLR 210.
The King v. Guneratne 14 C.L.Rec. 144.
Sangarakkita Them et al v. Buddharakkita Thero (1949) 39 CLW 86.
Perera v. Naganathan (1964) 66 NLR 438.
Hamid v. Karthan (1917)4 CWR 363.
t(21) The King v. Soysa (1924) 26 NLR 324.
’(22) R. Cooray (1926) 28 NLR 74.
Inspector of Police, Gampaha v. Perera (1931) 33 NLR 69.
Paulis Appu v. Don Davith (1930) 32 NLR 335.
Bartholomeusz v. Velu (1931) 33 NLR 161.
S.I.P. v. Thalagahagoda 13 CLRec 211.
Kitnapblle v. Christoffelz (1948) 49 NLR 401.
Reg v. Arthur Perera (1956) 57 NLR 313, 326.
APPEAL from judgment of the Court of Appeal.
Dr. Colvin R. de Silva with Miss. Saumya de Silva for accused-appellant.
D. P. Kumarasinghe, S.S.C. for respondent.
Cur. adv. vult.
October 31, 1984.
On 23.4.73 at 4.05 p.m. Merlin Ranasinghe, the deceased, wasadmitted to the N.O.H. Ward of the Castle Street Hospital, Colombo. >Upon admission Dr. (Miss) Panchchalirigam who was in charge of thesaid ward, had, with the assistance of Dr. Neela Ranjithraja and Dr.(Mrs.) Waas, examined the deceased, at about 4.30 p.m., and hadfound the deceased to be pregnant and suffering from septic abortion.Parts of a foetus had also been removed from the deceased by Dr.(Miss) Panchchalingam. Dr. Ranjithraja had then questioned thedeceased. The deceased had, in answer to Dr. Ranjithraja, told Dr.Ranjithraja that she had started to bleed as a result of a fall near thewell. No reference had been made in that reply to an abortion.
Thereafter on the following day, 24.4.73, as the deceased'scondition had taken a turn to the worse. Dr. Ranjithraja had, about 10p.m., directed Dr. (Mrs.) Waas to record the deceased's statement.Dr. (Mrs.) Waas had then proceeded to question the deceased in thepresence of Dr. Ranjithraja, and the deceased had made an ore.'statement to this doctor. The statement so made is, briefly : that, on22.4.73, she had gone to the accused "in order to get an abortiondone" : that the accused had "introduced 2 sticks («;«s>d)into hervagina", and had also given her some medicine to be taken orally : thatshe was also advised to see the accused on the following day :. thatthe same evening she started to bleed and also developed atemperature : that, on the morning of the following day the 23rd, asshe was feeling faintish and also found her vision blurred, she went
back to the accused and requested her to pull out the 'two sticks"which had been inserted the previous day : that she is not surewhether they were pulled out: that although the accused asked hernot to go to the Castle Street Hospital, she decided to seek treatmentfrom the Hospital.
After Dr. (Mrs.) Waas had recorded the said statement from thedeceased, the hospital authorities had contacted the Borella PoliceStation. P.C. 5256 Abeyratne, who was then attached to the saidPolice Station, had then proceeded to the said Castle Street Hospital,and he too had, later that same night, recorded a statement (a copy ofwhich was marked P2 at the trial) from the deceased. Briefly, thedeceased had, in the said statement, stated : that she went to see theaccused on 22.4.73 with her five year old son : that, when she toldthe accused of her intention, the'accused had "inserted some ■medicine" into her vagina : that, after she went home, she began tobleed from her vagina : that on the following day 23.4.73, she wentagain to see the accused : that she went on that occasion with herhusband : that, although the accused assured her that she would becured, she nevertheless proceeded to the Castle Street Hospital andhad herself admitted to the said hospital the same evening.
The deceased's condition had thereafter deteriorated and shepassed away in the early hours of the 26th April 1973. Apost-mortem examination on the body of the deceased had been heldby Dr. Sarveswaran. A copy of the post-mortem report was producedat the trial marked P1. The cause of death has been set out as"septicaemia following septic abortion".
The accused appellant – a registered ayurvedic-practitioner ofeleven years standing and practising'at Etul-Kotte, along with herhusband, himself a registered Ayurvedic-Practitioner – was thereuponindicted before the High Court, Colombq with having caused the deathof the deceased : that she did on 22.4.73, with intent to cause amiscarriage, insert "e&Si " into the vagina of Merlin Ranasinghe, awoman with child; and thereby caused her death, an offencepunishable under sec. 305 of the Penal Code.
The learned judge of the High Court, after trial without a jury,convicted the- accused-appellant of the said charge, and imposed asentence of 2 years' imprisonment – which said imprisonment, theCourt of Appeal has construed to be simple in character.
The accused-appellant's appeal to the Court of Appeal having failed,the accused-appellant has now come before this Court.
The principal submission made to this Court by learned Counselappearing for the accused-appellant is : that the prosecution has failedto discharge the burden resting on it to prove that it was theaccused-appellant who committed the said offence on the deceased :that the prosecution has failed to prove beyond reasonable doubt thatit was the accused-appellant who inserted the "two sticks" (whetherthey be efa <moe5 or ©tsdgtat® e$ts>e& as what is alleged to havebeen used by the accused-appellant has been variously described inthe indictment and in the proceedings) into the deceased's vagina andcaused the septic abortion which brought about the death of thedeceased.
The principal item of evidence relied on by the prosecution to provethe identity of the offender who committed the said offence is theaforesaid oral statement said to have been made by the deceased toDr. (Mrs.) Waas at the Castle Street Hospital shortly after 10 p.m. on ,the night of the 24th April 1973. The said statement was relied on asa dying deposition which is admissible under sec. 32 (1) of theEvidence Ordinance.
The statement of the deceased, which is said to have been so madeto Dr. (Mrs.) Waas, would appear, according to the evidence, to havebeen contemporaneously recorded by Dr. Waas. The judgment of theCourt of Appeal also refers to such statement having been "recorded"by Dr. Waas. The record said to have been so made by Dr. (Mrs.)Waas of the oral statement which she says, was made to her by thedeceased, has itself not been produced in evidence at the trial beforethe High Court. The evidence, which is available in the record of theproceedings before the High Court, is only the oral evidence of Dr.(Mrs.) Waas of what, according to her, the deceased told her thatnight in the hospital. The judgment of the Court of Appeal disclosesthat, before the Court of Appeal, learned Counsel for theaccused-appellant had "severely criticised' the manner in which thesaid statement had been proved at the trial. The Court of Appeal hadtaken the view that Dr. (Mrs.) Waas had, at the time she gaveevidence, been making use of some notes which were in herpossession, and that, in view of the provisions of sec. 159 (1) and (3)of the Evidence Ordinance, this witness could have refreshed hermemory from a copy of the statement so recorded by her, and that the
fact that this witness was so permitted by the trial judge to use a copyof the statement recorded by her leads the court to assume that suchpermission had been granted because the trial court had beensatisfied that there was sufficient reason for the non-production of theoriginal record. This, as already stated was only an assumption by theCourt of Appeal. There is no express order made by the learned trialjudge in regard to this matter; and there is nothing in the proceedingsthemselves of the trial Court to indicate that the learned trial judge hadexpressly addressed his mind in regard to the requirements of theprovisions of Sec. 159 of the Evidence Ordinance before Dr. (Mrs.)Waas was permitted to refresh her memory from the document,which she had, in order to give oral evidence of what she says thedeceased told her on the night in question. It however, seems to me,in view of the submissions made to us at the hearing before us of theprocedure adopted by the learned trial judge – and which saidprocedure has been found acceptable by the Court of Appeal as well'(to which reference. will be made later on in this judgment) – ofperusing on his own, the evidence given by this witness in the courseof the non-summary inquiry held before the Magistrate's Court, thatthe learned trial judge, who so perused her evidence given before thelearned Magistrate, would have become aware of the existence of thedocument which had, at that inquiry, been produced as P 1. P 1 hasbeen described as a "certified copy of the patient's statement". In herevidence at the trial Dr. (Mrs.) Waas has stated that: "at theMagistrate's Court, before I gave evidence I examined the Bed-headTicket" : that she "got this report after examining the Bed-headTicket". The "report" , so referred to could be the document fromwhich she was refreshing her memory when she gave evidence at thetrial. The document produced by Dr. (Mrs.) Waas as P 1 in herevidence – which as stated earlier has been perused by the learnedtrial judge – in the Magistrate's Court has not been marked inevidence by the prosecution at the trial, even though its contents havebeen sought to be led in evidence through Dr. (Mrs.) Waas as part ofthe prosecution case. No explanation seems to have been given at thetrial by the prosecution for the non-production of either the saiddocument, or of the Bed-head Ticket referred to by Dr. (Mrs.) Waas.Whatever be the document which Dr. (Mrs.) Waas had in herpossession and from which she refreshed her memory when she wasin the witness-box at the trial, there seems to be considerable roomfor doubt, as submitted by learned Counsel for the accused-appellant,whether that document was the record itself or even a copy of the
record, she says, she made on the night in, question itselfcontemporaneously with what the deceased is said to have told her, inview of a very significant difference in regard to a matter which theprosecution itself has thought to be of such importance as to require areference to it in the indictment itself, namely the means adopted bythe accused-appellant to cause the alleged abortion. Dr. (Mrs.) Waas,in her evidence – given after referring to the document shehad _ refers to what the deceased told her was used asThis reference was made by the witness
four times in the course of her evidence. In the document P 1produced by this witness in her evidence – perused by the learned trialjudge – in the Magistrate's Court, what is said to have been insertedhas been referred to asBe that as it may the resulting
position is that the document which came into existencecontemporaneously with the oral statement made by the deceased,has not -been produced at the trial. The said document would be thebest evidence of the words used by the deceased herself. There wereno good grounds urged for the non-production of the said originaldocument. On the contrary, all the facts and circumstances, whichemerged at the trial, point unmistakably to the said document havingbeen available for production in evidence at the trial. The necessity forthe ipsissima verba used by a deceased in a dying declaration hasbeen emphasised by the then Supreme Court of this island in severaldecisions : The King v. Asirvadan Nadar (1), Mendis v. Paramaswami
Apart from the aforementioned statement made to Dr. (Mrs.) Waasthe deceased, as set our earlier, had also made two otherstatements – one before and the other after the said statement – inwhich too she had purported to. describe the circumstances whichresulted in her death. The earlier one, also made to a doctor – thougha male – who attended on her after admission to the same hospital, isembodied in the document D 1 produced by the defence. The laterone is in the document, which, according to the proceedings of thetrial, was marked P 2 by learned State Counsel in hiscross-examination of the police-constable who had recorded it andwho was called to testify at the trial not by the prosecution but by thedefence.
Both D 1 on the one hand and P 2 on the other hand come intoconflict not only inter se. but also separately with the statement thatthe deceased is stated to have made to Dr. (Mrs.) Waas in regard tohow exactly the abortion in question was caused. The conflict,between P 1 and D 2 with the statement to Dr. (Mrs.) Waas, whichalone has been relied on by the prosecution, is in regard to the mannerin which the offence has, according to the prosecution as set out inthe indictment, been committed. The Court of Appeal was of opinion :that the manner of the commission of the offence as put forward bythe prosecution is of considerable importance : that it was the duty ofthe trial judge to find whether the offence has been committed by theaccused in the manner set out in the indictment: that the trial judgehas seriously misdirected himself on this particular matter. Althoughthe Court of Appeal took the view that the evidentiary value of Dr.Ranjithraja's deposition, embodied in D1, is weakened due to certaincircumstances specified by the Court of Appeal, – namely because itstands alone and is not supported by Dr. (Mrs.) Waas, and becausethe defence-has failed to put to Professor Fernando, the chief medicalwitness for the prosecution at the- trial, a view expressed by Dr.Ranjithraja, the Court of Appeal, however, was also of the view thatthe contradiction, as between D 2 and the deceased's statement toDr. (Mrs.) Waas "remains". Although Dr. Ranjithraja was not called bythe prosecution at the trial, he was nevertheless put forward at thenon-summary inquiry by the prosecution as a witness for theprosecution and tendered to the defence for cross-examination andthereafter re-examined on behalf of the prosecution. At no stage hadhis evidence been challenged in the Magistrate's Court by theprosecution as being unreliable or unacceptable. He was then putforward as a witness of truth ; and the defence is entitled to have hisdeposition, contained in D1, which is legally admissible and has beenproperly proved, considered as truthful evidence. The matter, onwhich there was a conflict between the deceased's statement to Dr,(Mrs.) Waas and each of the other statements D1 and P2, was thus amatter of importance. However "human and understandable" be theexplanations preferred by learned Counsel for the prosecution inrespect of the aforesaid variations in the respective statements madeby the deceased, yet, as the Court of Appeal stated "the contradictionremains". It must also be noted that even the trial judge seems to haveacted upon Dr. (Mrs.) Waas's evidence given at the trial, in regard tothe contents of the deceased's statement to her, only after -whatever be the validity of such a procedure – a perusal of theevidence given by her at the earlier stage of these proceedings in theMagistrate's Court.
It must also be noted that, in answer to a question from theprosecution witness Pearle Perera, who had accompanied thedeceased to the accused-appellant's dispensary on 23.4.73 at therequest of the deceased herself, as to what her ailment was thedeceased had told Pearle Perera only that she, the deceased, "hadshivered and developed a temperature". No reference had been madeto the accused-appellant having being in any way responsible for hercondition.
In the result the statement said to have been made by the deceasedto Dr. (Mrs.) Waas and relied on by the prosecution was such thatspecial care was needed in considering whether the said statementshould be accepted as true and accurate. The said statement wassuch that it was not safe to act upon it unless it was corroborated -vide : The King v. Asirvadan Nadar (supra); B. F. Lewis Fernando v.The Queen (3); The Queen v. Anthonypillai (4).
A consideration of the judgments of the Court of Appeal and theHigh Court reveals that both courts did also think it necessary toconsider the question of how far there was corroboration of the saidstatement of the deceased.
The Court of Appeal has proceeded on the basis that, whilst the saidstatement made to Dr. (Mrs.) Waas supplies the only direct evidenceto connect the accused-appellant with the commission of the saidoffence, corroboration of the deceased’s allegation against theaccused-appellant herself is provided by the evidence of theprosecution witness Pearle Perera, and by a false denial made by theaccused-appellant herself of the deceased's allegation that she metthe accused-appellant for the first time in this connection on 22.4.73at the accused-appellant's dispensary in Etul-Kotte.
The item of evidence in the testimony of the witness Pearle Perera,which is relied on as corroborating the deceased's evidenceincriminating the accused-appellant, is Pearle Perera's statement of adiscussion between the deceased and her husband after they had setout from the deceased's home, on the afternoon of the 23rd of April1973, to go to hospital. Pearle Perera did in her evidence, say that, ontheir way td hospital, a discussion took place between the deceasedand her husband as to where the deceased should go, and that, in thecourse of such discussion, the deceased told her husband
and that thereupon
they first proceeded to the accused-appellant's dispensary, and that itwas only thereafter that the deceased entered the Castle Streethospital on 23.4.73. The Court of Appeal has taken the view that thisparticular item of evidence is admissible under the second limb of sec.32 (1) of the Evidence Ordinance as it relates to the circumstances ofthe transaction which resulted in her (the deceased's) death, and thatit also corroborates not only the deceased's evidence of her first visitto the accused-appellant's dispensary on the previous day, 22.4.73,but also of what the accused-appellant did on that occasion. In myopinion, however, this item of evidence in the testimony of PearlePerera does not, in law, amount to such corroboration ; for, althoughthis item of evidence is placed before court through the witness PearlePerera it is in truth and in fact only a statement made by the deceasedwho is herself the witness who requires to be corroborated. It is not anitem of evidence extraneous to the deceased herself. It does not/elateto an independent circumstance which a person other than thedeceased herself is in a position directly to testify to. It is notindependent testimony ; and "it lacks the essential quality of comingfrom an independent quarter". It is evidence which has "proceededcircuitously" from the deceased herself. Although the said item ofevidence may be taken to show the consistency of the deceased'sevidence given at the trial, yet, it "cannot be regarded as corroborationin the proper sense in which that word is understood in cases of thiskind and it is a misdirection to refer to it as such"- vide : The King v.Atukorale (5); The Queen v. Julis (6); Karunaratne v. The Queen (7) ;Dole v. Romanis Appu (8). In this connection reference has to bemade to the decision of the then Supreme Court in the case ofTennekoon v. Tennekoon (9) where (Malcolm) Perera, J. has taken thev.ew that, in an application for maintenance a statement made by theapplicant-mother herself, in regard to the paternity of the child, wouldbe admissible to corroborate the applicant-mother's evidence, if suchstatement satisfied the requirements of sec. 157 Evidence Ordinance.
It has, however, to be observed that, although Perera, J. did take theview that a previous statement made by the applicant herself, whoseevidence had to be corroborated, could be regarded as corroborativeevidence (and so also a false statement of the defendant), yet Perera,J. proceeded to conclude at page 24, that 'quite apart from the
statement of the applicant to her mother I think the
unimpeachable evidence of Dingiri Banda to which I have alreadyreferred, more than amply corroborates the applicant's evidence onmaterial particulars". What was decisive seems to have been the"unimpeachable" evidence from an independent quarter. Furthermore,the earlier decisions of the earlier Supreme Court – The King v.Atukorale (5). Queen v. Julis (6) and Karunaratne v. The Queen(7) – referred to by me above, do not seem to have been cited to theBench of two judges which hearo the Tennekoon's case (supra). Itseem to me that the said view taken by Perera, J.-in regard to aprevious statement by the very witness, who needs to becorroborated, being accepted as corroboration -must give way to theother authoritative decisions referred to by me.
The evidence of Pearle Perera that the deceased did in fact go to theaccused-appellant's dispensary on 23.4.73 does not amount tocorroboration of the deceased's evidence of her (deceased's) visit tothe accused-appellant on the previous day, 22.4.73, and of whathappened inside that dispensary on that first visit. Pearle Perera hadnot gone into the dispensary and cannot, and does not, testify to whajtook place inside the room in which there were only the deceased, herhusband and the accused-appellant. Furthermore, theaccused-appellant admits, that the deceased came to her dispensaryon the 23rd April, and that she treated the deceased on that occasion.If, however, the accused-appellant had denied the deceased's visit onthe 23rd April as well, then an acceptance of Pearle Perera's evidenceon that point, and a finding that the accused-appelfant's denial isdeliberately false, would have produced certain consequences. Such asituation does not, as stated earlier, however arise in this case.
The evidence of the deceased and of the two prosecutionwitnesses, Pearle Perera, referred to above, and Japin Nona do,however, disclose the existence of a person who was in a position totestify to what happened inside the accused-appellant's consultingroom when she examined the deceased on the afternoon of the 23rdApril'73and thereby furnish evidence of the deceased's evidence inregard to what the deceased says took place on the previous day,22.4.73, as between her and the accused-appellant. The person sodisclosed is none other than the deceased's husband who was on thelist of witnesses for the prosecution set out in the indictment. He,however, has not testified for the prosecution at the trial. Ourattention has not been drawn to any ground or explanation*submitted
to the trial court, or even to the Court of Appeal, in regard to the failureto call the deceased's husband at the trial for the prosecution.Although, when this was referred to by learned Counsel for theaccused-appellant in the course of his submissions to this court,learned Senior State Counsel appearing for the Respondent statedfrom the Bar that learned State Counsel, who had appeared at the trialfor the State, has informed him that this witness was dead at the timethe trial commenced, no evidence, in a form such as is usuallytendered to satisfy the Court in regard to such a matter and therebysilence any possible comment by the defence, has been tendered onbehalf of the prosecution to the trial Court or to the Court of Appeal,or, even now, to this Court. Although there is this defect in the casefor the prosecution, it is not necessary to discuss it further in view ofthe opinion. I take upon the principal submission, referred to earlier,made to this Court on behalf of the accused-appellant.
That a false denial deliberately made in Court by a person, againstwhom an allegation is made in proceedings instituted against him. of amatter of vital importance could, under certain circumstances, betaken as corroborating the allegation so made by the complainantwhose evidence is, in law, required to be corroborated, is a principlewhich has been laid down by the Supreme Court of this Island -vide :Warawita v. Jane Nona (10) ; Dharmadasa v. Gunawathy (11);Somasena v. Kusumawathie (12) ; Indrawathie Kumarihamy v.Purijjala (13) ; Tennekoon v. Tennekoon (supra).
The aforesaid decisions all dealt with cases in which claims formaintenance or seduction were made. Our attention has not beendrawn to any decision made in this Island in proceedings instituteduqder the criminal laws of the Island. The Court of Appeal has, in itsjudgment, referred to the decision of the Court of Appeal in England inthe case of J. F. Throne and Others (14), where the Court of Appealconsidered this principle in relation to the evidence of an accomplice inwhich criminal charges of conspiracy and robbery were levelledagainst the accused. In considering the question whether the conductof the accused in putting forward alibis which the prosecution allegedwere fabricated to deceive the jury was evidence capable ofcorroborating the evidence of an accomplice, who testified for theprosecution against the accused, the Court stated at p. 18:
"The prosecution alleged that all these alibis had been fabricatedto deceive the jury and that if this was so the very act of fabricationwas evidence capable of being corroboration of O'Mahoney'sevidence against them. Counsel did not suggest that alibisfabricated with such intent could not be corroboration. In ourjudgment they can be, provided that the jury is satisfied that thefalsity has not arisen from mistake and that the fabrication has notcome about through panic or stupidity";
and in regard to the defence submission that there was not enoughevidence to justify the jury finding that there has been the relevant kindof fabrication, the Court held that there was evidence from which therelevant kind of fabrication could be inferred.
A consideration of this principle, as elucidated in the judgmentsreferred to above, makes it quite clear that the statement so sought tobe relied on must relate to a vital issue which is in dispute in the case :that it must not only be false, but must also be deliberately false : thatits falsity must be established by evidence aliunde, that is by evidencewhich is independent of and extraneous to the witness who stands inneed of corroboration. Before this principle could be invoked, it isabsolutely important that the falsity of the statement made by thedefendant, or the accused as the case may be, must be clearly*established. The statement so sought to be relied upon must first beproved to be deliberately false. Such falsity must be proved by otherindependent facts and circumstances. The mere fact that suchstatement comes into conflict with the assertion made by the witnesssought to be corroborated is not sufficient. Otherwise, it wouldamount to using statement 'A' to condemn statement 'B' and thenproceeding to use statement 'B' to support statement 'A'. In otherwords it would amount to the statement, which requires to bestrengthened, itself being used to provide the material to be used toso strengthen it. Thus in this case the falsity of theaccused-appellant's statement, that the deceased did not consult herat her dispensary on 22.4.73, must first be established by otherindependent evidence which does not issue forth from the deceasedherself. That the said denial of the accused-appellant was deliberatelyfalse must be evidenced by facts and circumstances which aretestified to by a witness or witnesses other than the witness whoneeds to be corroborated. That such denial is in conflict with anassertion made by the deceased herself is by itself insufficient toestablish the falsity which it is contended corroborates the deceased'sallegation against the accused-appellant. A consideration of thejudgment of the Court of Appeal, in my opinion, makes it clear that thisis precisely the approach adopted by the Court of Appeal. There was
no evidence – direct or circumstantial – before the trial court, otherthan the assertion made by the deceased in her dying declaration toDr. (Mrs.) Waas, to justify a finding that the accused-appellant wasunmistakably speaking an untruth when she stated under oath that thedeceased did not see her at her dispensary on the 22nd April 1973.There was on this point – whether the deceased consulted "theaccused-appellant at the accused-appellant's dispensary in Etui Kotteon 22.4.73 – only the statement made by the deceased in the saiddying deposition made to Dr. (Mrs.) Wass on 24.4.73 on the onehand, and, on the other, a statement made in court under oath by theaccused-appellant repudiating the deceased's said assertion. Theconclusion that the accused-appellant's such denial was false is basedonly on the fact that the trial court was of the opinion that thedeceased's assertion in the dying declaration is true. The assertion somade by the deceased stands alone unsupported by any otherindependent fact or circumstance (as what emerges from PearlePerera's evidence of the discussion between the deceased and herhusband is also only material furnished by the deceased herself) tosupport what she says. Similarly there is no independent fact orcircumstance to show that the accused-appellant's assertion is nottrue. That being so, such falsity of the accused-appellant's denial, asis required as a condition precedent to the application of the saidprinciple, has not in this case been proved.
The duty of an appellate court in a criminal case has beenconsidered in several cases: The King v. Fernando (15); MartinFernando v. The Inspector of Police, Minuwangoda (16); The King v.Guneratne et al. (17); Sangarakkita Thero etal. v. Buddharakkita Them(18); Perera v. Naganathan (19). It must also be observed that thefindings of the trial court in this case in regard to the culpability of theiccused-appellant herself, is not based upon the perception of thesvidence placed before the trial judge but rather upon an evaluation ofsuch evidence. The existence of concurrent findings by the High Courtand by the Court of'Appea! in regard to the guilt of theaccused-appellant does not, therefore, stand in the way of this Courttoo testing the evidence led at the trial "extrinsically as well asintrinsically"
For the foregoing reasons I am of opinion that the aforesaidstatement of the deceased made to Dr. (Mrs.) Waas stands, in law,alone and uncorroborated, in regard to the identity of the offender.
The Court of Appeal was of opinion that, although the learned trialJudge has "seriously misdirected" himself in a conclusion he hadarrived at yet, there was ample evidence to prove, inter alia, that it wasthe accused-appellant who did the offending act, and that, as thedeceased's statement to Dr. (Mrs.) Waas has been "rightly believed"by the learned trial Judge, no "substantial miscarriage of justice hasactually occurred", and that this is an instance wherein the provisionsof the proviso to sec. 334(1) of the Code of Criminal Procedure ActNo. 15 of 1979 and the proviso to Article 138 (1) of the Constitutionshould prevail.
The only item of evidence available to the prosecution to affixresponsibility to the accused-appellant in this case is the saidstatement of the deceased t‘o Dr. (Mrs.) Waas. I have, however, setout earlier why the said statement cannot and must not be acted uponas being true and accurate That being so, the provisos referred to bythe Court of Appeal – the proviso to sec. 334(1) of the Code ofCriminal Procedure Act No. 15 of 1979, and the proviso to Article138(1) of the Constitution – do not arise for consideration. In anyevent the provisions of sec. .334 of the said Act No. 15 of 1979 haveno application to this case, as the provisions of that section apply onlyto appeals in cases where the trial is held before a judge and jury.Appeals to the Court of Appeal from a verdict of the High Court at atrial without a jury are determined according to the provisions of sec.335 of the said Code of Criminal Procedure Act No. 15 of 1979.
There is just one other matter I have to refer to before concludingthis judgment. Although it is not a matter upon which the decision ofthis case by this Court has been made to rest yet, it is a matter uponwhich, in my opinion, the observations of this Court should berecorded jest what has been done in the trial court – and has receivedthe sanction of the Court of Appeal – be drawn as a precedent for thefuture.
The trial judge has, as indicated earlier, in considering the evidencegiven before him by the principal witness for the prosecution lookedinto – evidently after the conclusion of the trial – the record of thenon-summary inquiry held in this case before the Magistrate andperused the evidence given by the said witness at such non-summaryinquiry in the course of which the witness had also produced adocument, which though it had then been marked P1, has not been -produced in evidence by the witness when the witness gave evidence
at the trial. The learned trial judge, faced with the situation that, whilstthe indictment set out a particular description of the way in which theaccused-appellant is alleged to have carried out the abortion, theprincipal prosecution witness's evidence of the deceased'sdescription to her of’how the accused-appellant had effected theabortion differed from it, had then proceeded to look into the record ofthe non-summary inquiry and peruse the witness's evidence, givenbefore the Magistrate, which contained the document, referred toearlier as having been marked as P1 before the Magistrate. Having soperused the said evidence, the learned trial judge sets out, in hisjudgment, the description contained in the said evidence, and thenconcluded that "there cannot be even an iota of a doubt” that thedeceased made "a statement like this" to the said witness. Thelearned trial judge's ultimate finding, against the accused-appellant inregard to the manner of the commission of the offence, however, isnot that it was committed in the manner set out in the indictment; norin the manner set out in the said witness's evidence at the trial; butthat, as set out by the Court of Appeal, "some action or means wasadopted to effect an abortion." Although the learned trial judge did soperuse the evidence given at the non-summary inquiry and did alsoproceed to make jse of, for the purposes of his judgment, materialcontained in such evidence, yet, he took no steps to have suchmaterial placed before him in the way that the other material, placed atthe trial for his consideration both by the prosecution and by thedefence, had been placed. Neither the prosecution nor the defenceseem to have been made aware of what has been done. The defence,which had taken the trouble to place before the learned trial judgeaccording to law a deposition made in the non-summary inquiry by awitness who could not be called to testify at the trial, was completelyignorant that another deposition, though not properly placed beforehim, was being considered by the learned trial judge. There is nobenefit of a record by the learned trial judge as to why he did what hedid. In the absence of any such express record made by the learnedtrial judge it is reasonable to infer that he did so because the evidencegiven at the trial by the said witness did give rise to doubts in his mindand he desired ro resolve such doubts. It is undoubtedly the right andindeed the duty of a trial judge and an inquiring Magistrate to takeoertain steps, as set out by the Court of Appeal "in the interests of
justice and to serve the purpose of justice to acquit the
innocent and convict the guilty". Such steps, however, must be takenstrictly in accordance with the relevant provisions of law relating toprocedure and evidence, and not solely "in the spirit" of suchprovisions. The Court of Appeal, in sanctioning the procedure adoptedby the learned trial judge, has referred to the provisions set out in sec.110 (4) of the Code of Criminal Procedure Act No. 15 of 1979 (whichcorrespond to the provisions of sec. 122 (3) of the Criminal ProcedureCbde – Chap 20 – which was repealed by the said Act No. 15 of1979) and has expressed itself as follows :
"If the law permits statements made to the police which are oftenurged to be (sometimes very justifiably) doctored or forcedstatements to be perused to aid Court in a inquiry or trial anaccused-appellant cannot be heard to say that for the samepurpose, and in the spirit of that section, the Court should not makeuse of evidence of higher value and sanctity to aid Court at a trial".
The said section 110 (4) undoubtedly empowers any criminal court"to send for the statements recorded in a case under inquiry or trial insuch court' and to use such "statements or information" for thepurpose set out therein, namely, "to aid it in such inquiry or trial"; but italso expressly provides that such "statements and information" arenot to be used "as evidence in the case". The nature and the extent ofthe powers vested in a criminal court by the provisions of sec. 122 (3)of the now repealed Criminal Procedure Code (the relevant provisionsotwhich and those in the corresponding sec. 110 (4) of Act No. 15 of1979 are identical) and manner in which such powers should beexercised have been clearly laid down by the then Supreme Court in along line of cases : Hamid v. Karthan (20); The King v. Soysa (21); R.v. Cooray (22); inspector of Police, Gampaha v. Perera (23); PaulisAppu v. Don Davith (24); Bartholomeusz v. Velu (25); S.I.P. vThalagahagoda (2Q): Kitnapulle v. Christoffelz (27), and theunreported cases ; S.C. 128-129 M. C. Kalmupai 7003, S.C.M. 15.10.63 / S.C. 475/58 M.C., Kegalle 22209 S.C.M. 20. 10.59. Thusif what was perused and made use of by the learned trial judge in thiscase in the way he did had been a "statement or information" ascontemplated by sub-sec. 4 of sec 110 of the Code of CriminalProcedure Act No. 15 of 79, then the procedure so adopted by thelearned trial judge could not have been justified.
What now remains to be examined is whether the fact that whatwas so perused and used was evidence given at the non-summaryinquiry held in this case before the Magistrate would clothe suchprocedure with legality. There is no express provision in the Code ofCriminal Procedure Act No. 15 of 79 (nor was there in the earlierCode) authorising the use of evidence given at a non-summary inquiryat a later stage of the same proceedings in the way "statements andinformation", referred to in the said section 110 (4), could be used asset out in the said section. There is, however, express provision in theEvidence Ordinance (Chap. 14), in sec 33, making evidence given by awitness in a judicial proceeding relevant in a later stage of the samejudicial proceeding. Once such evidence becomes relevant at thestage of the trial, then such evidence would have also to be provedbefore the trial judge in the same way the other items of relevant andadmissible evidence are placed before the trial judge in accordancewith the express provisions of the laws of evidence or of criminalprocedure. Facts which are relevant can be considered by the trialjudge only if and when they are led in evidence before him at the trial inaccordance with the relevant express provisions of law. A depositionmade at a non-summary inquiry must, if relevant at the subsequenttrial, be adduced in evidence in open court at the trial in the presenceof both parties, just as much as the other relevant facts have to be ledin evidence and proved at the trial in open court in the presence of theparties. This is what the law requires, and it has also been theinveterate practice. That that is so is also borne out by the case ofReg. v. Arthur Perera (28). The procedure adopted in regard to thisparticular matter by the learned trial judge cannot, in my opinion, bejustified upon any basis – whether of precedent or of any expressprovision of law.
For these reasons, I make order allowing the appeal of theaccused-appellant. The conviction of, and the sentence imposed onthe accused-appellant are set aside ; and the accused-appellant isacquitted.
WIMALARATNE, J. – I agreeRODRIGO, J. -I agree.
Appeal allowed and accused acquitted.