Moosajees Ltd. v. Rasiah .(Moonemalle. J.)
COURT OF APPEAL.
SIVA SELLIAH, J.. T. D. G. DE ALWIS, J. AND BANDARANAYAKE. J.
C.A. No. 27/84.
H.C. AVISSAWELLA No. 19/81.
DECEMBER 2. 3 AND 4. 1985.#
Code of Criminal Procedure Act No. 15 of 1979 -*Section 414 (1) – Admissibility ofthe case history of the patientAbsence of the persons who supplied theinformation – Absence of the doctor who examined the patient – EvidenceOrdinance, section 32 (2).
Where the Medico Legal Report prepared by a Government Medical Officer wasadmitted in evidence under section 414(1) of the Code of Criminal Procedure Act No.15 of 1979, the question for decision was whether the entry made by the MedicalOfficer in the cage pertaining to the case history of the patient in the said Medico LegalReport was admissible in evidence without the person who supplied such informationbeing called.
In cases where the person giving the history (if it is not the patient) is hot called then therules pertaining to hearsay evidence would apply and where such person is not'called asa witness, the value and weight of such evidence will be affected. The entirety of theMedical Report of the doctor was admissible under section 414(1) of the CriminalProcedure Code. The doctor being obliged in the course of his professional duty tomake the entry under the relevant cage specifying case history the provisions of section32(2) of the Evidence Ordinance are applicable to the admission of such an entry.
Sri Lanka Law Reports
(1986] 1 SriL.R.
APPEAL from conviction in the High Court after jury trial.
Dr. Colvin R. De Silva with M. V. De Silva and Miss Saumya de Silva foraccused-appellant.
Asoka de Silva, S.S.C. for respondent.
January 24, 1986.
SIVA SELLIAH, J.
Three accused were charged in this case for the attempted murder ofGamage Buddhadasa on 20.3.78 by throwing acid on him-an offencepunishable under section 300 of the Penal Code read with section 32.The trial commenced on 26.10.83 before a jury and was concludedon 14.11.83. At the close of the case for the prosecution on thedirections of the High Court Judge the 3rd accused was acquitted. Atthe conclusion of the trial the jury unanimously found the 1 st accusedGamini Dolawatte guilty of having caused grievous hurt to GamageBuddhadasa by throwing acid at him and blinding him in both eyes;they returned a 5:2 verdict of not guilty regarding the 2nd accusedwho was thereupon acquitted. The present appeal is by the 1staccused against his conviction and sentence of 5 years R.l. and fine ofRs. 250.
According to the prosecution evidence the father of the 1 st accusedwas the owner of a field oi which the injured Gamege Buddhadasawas the ande cultivator. The latter lived #. Bomiriya. On 20.3.78 therehad been a funeral close to the house of Buddhadasa and he hadsupplied a pot of tea to the funeral house; at about 6.15 p.m.accompanied by Udaya Kumar he had gone to fetch the pot back,and he had also gone further up to the boutique and bought somesprats. On the way back he observed 3 persons one of whom was the1 st accused Gamini Dolawatte. As he passed the house of Liyanage,when he was about 5 feet from Gamini Dolawatte, the 1 st accusedflung some liquid on his face-some of it fell on his eyes and he beganto lose sight. He identified the 1 st accused well. The evidence led atthe trial has proved that he has lost the sight of both eyes completelyas a result of the acid thrown at him. He shouted out that acid hadbeen thrown at him. However when he shouted out he had notdisclosed the name of the assailant but had mererly stated that acidhad been thrown at him. Udaya Kumar who was with him had runaway. He was then taken to hospital where the doctor (Mrs.Coomarasamy) had found he had gone completely blind. The name of
Dolawatte v. Attorney-General (Siva Selliah, I.) .
Gamini Dolawatte as the assailant was not in the case history of theMedico Legal Report of Dr. Coomarasamy-it stated that an unknownperson had thrown acid. That history had not been provided byBuddhadasa who was unconscious. Next morning he was examinedby Dr. Fernando at the hospital — his case history was recorded by himand it was there he stated that Gamini Dolawatte had thrown acid athim. His statement however was recorded by the police-by I.P.Tiilakaratne only on 28.3.78-8 davs after the incident, and the HighCourt Judge has quite rightly severely reprimanded the police for thetardy manner in which the statement has been recorded andinvestigations made. The prosecution had also led the evidence ofMissi Nona and Sirimawathi to establish that shortly prior to theincident the 1st accused was in the vicinity and had indeed come toher house with 2 others and asked her for some water which she gavehim in a glass and went off to the funeral; Sirimawathi has said thatshe saw the accused going away from their house with two others andthe accused was carrying a parcel in the shape of a bottle and she hadasked him whether it contained arrack or medicine. The prosecutionalso led the evidence of Udaya Kumar who was accompanyingBuddhadasa. He testified that there were three persons and one ofthem threw acid at Buddhadasa while the other two assaulted him andBuddhadasa shouted that acid had been thrown at him. Udaya Kumarhad not identified the assailant. The police investigational evidencewas also led and the High Court Judg® has commented adversely onthe evidence of I. P. Tiilakaratne who had waited for 8 days to recordthe statement of a man who^iad been made blind by the incident. Thetwo doctors who examined the patient were unable to give evidenceas they were not in the country and their reports were producedthrough Dr. H. V. J. Fernando – who was the Professor of ForensicMedicine.
At the hearing before us the learned counsel who appeared for the1 st accused-appellant relied upon the principal contention that whilethe Medico Legal Reports of the two doctors who examined theinjured on the night of 20.3.78 (Dr. Mrs. Coomarasamy) and on themorning of 21.3.78 (Dr. P. R. Fernando) were admissible in evidenceunder section 4T4(1) of the Criminal Procedure Code, nonethelessthe cage pertaining to the history of the patient in the said reports (P1& P2) were not admissible in evidence without the persons whosupplied such information being called and particularly in the absenceof the doctors themselves as this would constitute double hearsay; it
Sri Lanka Law Reports
(1986) 1 SriL.R.
was his further contention that one did not know what the impact ofthis evidence would have been on the minds of the jury in finding theaccused guilty of grievous hurt as in PI (the report of Dr. P. R.Fernando) the case history is given as injury having been caused by thethrowing of acid by Gamini Dolawatte and it was not possible toascertain who had mentioned this to Dr. Fernando. The learnedcounsel further contended that the charge by the learned judge to thejury does not discuss how this problem was to be approached anddealt with by the jury and that as a result prejudice has been caused tothe accused.
Section 414 (1) of the Criminal Procedure Code Act makes possiblethe use of any document purporting to be a report under the hand of aGovernment Medical Officer upon any person, matter or thing dulysubmitted to him for examination or analysis and report. It was thelearned counsel's submission that accordingly what could thus bemade use of was so much of the report as dealt with the examinationof the patient and the injury found on him and not the case history aswas entered by him on information as supplied by some other personwho is not called as a witness. "Government Medical Officer" includedany officer of the Department of Forensic Medicine of any faculty ofmedicine of the University of Ceylon, vide section 2 of the CriminalProcedure Code Act. Thus the report was by a competent person. Iam of the view that the examination by the doctor commences withthe ascertainment of the case history of the patient-thisTs a part of hisprofessional duty as much as the physical examination and treatmentand report thereon. Indeed it is necessary for the doctor to acquainthimself with the background even in normal circumstances beforeentering upon examination and treatment. In cases where the persongiving the history (if it is not the patient) is not called then the rulespertaining to hearsay evidence would apply and where such person isnot called a witness, the value and weight of such evidence will beaffected. The entirety of the medical report of the doctor was thusadmissible under section 414(1) of the Criminal Procedure Code andthe doctor was obliged in the course of his professional duty to makethe entry under the relevant cage specifying case history and theprovision of section 32 (2) of the Evidence Ordinance was applicableto the admission of such an entry. It must however be borne in mindthat such entry was intended for the purpose of ascertaining thehistory of the patient by the doctor or the injury sustained so as to givehim the necessary background for treatment of the patient and was
Dolawatte v. Attorney-General (Siva Selliah, J.)
not intended to be a complaint such as is made to a police officerregarding the incident; it is well possible that in some cases the casehistory may be provided by persons other than the patient himself asfor instance where the patient is unconscious. In the instant case thisseems to have been the position as the evidence of Buddhadasashows that soon after he became blinded upon the throwing of acid hebecame unconscious and did not know what happened till he foundhimself in considerable pain in hospital and his evidence is that the firsttime he mentioned the name of Gamini Dolawatte as the person whothrew acid at him was when he made his statement to I.P. Tillakaratneon 28th March 1978. The learned High Court Judge, in his charge tothe jury has rightly castigated the I.P. for having taken so long torecord his statement and commented that in the predicament thatGamini Dolawatte was, a blinded person with injuries could not beexpected to go in search of the police. In Korossa Rubber Co. v. Silva20 NLR 65 ai 73 Wood Renton. C.J. having considered the objectionthat the statement of an absent witness to a Korala who had sincedied was not admissible in evidence, ruled that such statement wasadmissible and that the objection that the Korala's report introduced"double hearsay" is one that goes to the. weight of the evidence, andnot to its admissibility (at p.67). When this objection was raisedbefore the learned High Court Judge at the trial he has ruled that thereis no legal bar to the production of the report and that both theprosecution and the defence have t|je right to address the juryregarding the value of the note in the cage regarding history and thathe would also direct the ju^ on this matter in his address. In hisaddress he has explained to the jury the circumstances under whichProfessor H. V. J. Fernando was giving evidence and producing thereports of Dr. Coomaraswamy and Dr. P. R. Fernando who were notavailable to give evidence. He has also explained that Dr. P. R.Fernando has recorded the history that one Gamini Dolawatte threwacid at Buddhadasa at lhala, Bomiriya on 20.3.78 at 6.30 in theevening but that there is no evidence before us as to who told this factto the doctor (the emphasis is by me). This deary shows that theHigh Court Judge has clearly drawn the attention of the jury that thiswas hearsay evidence as far as the case history is concerned and (inmy view} draws a sufficient note of caution to the jury on this matter.The learned judge has nowhere stated that this could be utilized bythem as evidence against the accused. Indeed a consideration of thelearned judge's summing up shows that he has quite fairly told the jurythat there is the direct evidence of Buddhadasa against the 1st
Sri Lanka Law Reports
11986) 1 Sri I ff
accused and that there was the evidence of Missi Nona andSirimawathi and that there was the evidence of two doctors that hehad grievous injuries. He has thus expressly refrained from using thecase history as provided in Dr. P. R. Fernando's report as any item ofevidence against the accused. He has also stated that:
"if you accept the evidence of Buddhadasa. then the evidence ofMissi Nona and Sirimawathi corroborate that at the time of thisincident the first accused has been very close to the place ol
incidentif you accept that evidence, and if you hold
accordingly, that the first accused threw acid on the face ofBuddhadasa and caused him grievous hurt, and if you hold that theprosecution has proved that fact beyond a reasonable doubt, if youaccept that the 1 st accused caused injury by some corrosive liquidthen you should find the 1st accused guilty of the charge. If youhave a reasonable doubt that the 1st accused committed thisoffence you should give the benefit of the doubt to the 1 st accusedand acquit him."
On this charge the jury unanimously convicted him. I am unable tosubscribe to the view that the learned High Court Judge had notcorrectly directed the jury regarding what they were to do with thecase history in Dr. P. H. Fernando's report. Not only has he statedthere was no evidence regarding who had provided that informationand thus cautioned them, bui also from the passage quoted abovefocussed their attention to tlse direct evidence and that it was for themto accept or reject the direct evidence £nd also that if there was anyreasonable doubt the 1st accused should be acquitted. I thereforehold that no prejudice has been caused to the accused by theadmission of the Medico Legal Reports in this case. A point was alsomade of the fact that when the acid was thrown at his face.Buddhadasa had not mentioned the name of Gamini Dolawatte whenhe shouted but had only shouted that acid has been thrown on him. Iam unable to agree that this demonstrated that he did not know whohis assailant was. When a person suddenly finds acid thrown on himand finds himself with blinding pain on him and his losing sight fast, heis not going to think of what lies ahead by way of evidence at a trial butinstinctively shouts that acid was thrown at him. It was also contendedthat the first time Buddhadasa had mentioned the name of GamimDolawatte was when he made his statement to the police on28.3.78. The learned High Court Judge has expressed in no uncertainterms utter dissatisfaction with the manner in which the police
Dolawatte v. Attorney-General ISiva Selliah. J.)
investigation has been conducted and the statement of the injuredrecorded so long after the incident and has stated in thecircumstances no blame could be attached to Buddhadasa for makinga statement so late as a blind person could not be expected to go insearch of the police who had been dragging their feet over their duty.The learned counsel also contended that prejudice has been caused tothe accused as circumstances favourable to the 1 st accused were notput to the jury by the learned judge, viz the absence of fingerprints ofthe 1st accused on the bottle and glass and that this had been achance meeting and not a planned one. Regarding the former it wasno part of Buddhadasa's evidence that the 1st accused threw acid athim from a glass or that this was the glass from which he threw acid. I.P. Tillakaratne had found the glass P4 and a bottle P5 (both smelling ofacid) at the scene. The 2nd accused was implicated as a result of hisfingerprints found on the glass and the 2nd accused in a dockstatement has stated that he was compelled to hold the glass andhence his fingerprints were on it. The learned High Court Judge hasgiven proper directions to the jury on this aspect of the matter and thejury have acquitted the 2nd accused which shows that they haveaccepted the 2nd accused's explanation as to how his fingerprintswere on it. The evidence of Buddhadasa was that when he was about5 feet from Gamini Dolawatte (1 st accused) passing the house ofLiyanage, the 1 st accused looked .at him and threw a vessel containingsome liquid at his face and that 2 other^assaulted him and that he hadseen the 1st accused very clearly and*that he identified him veryclearly (vide page 7, 8 & 1 6)vUnder all these circumstances there wasno need to advert to the absence of fingerprints of the 1 st accused onthe glass as Buddhadasa's evidence was that he threw a vesselcontaining acid at his face and that the acid alighted on his face. It wasin these circumstances that the High Court Judge has referred to thisas direct evidence. Further regarding the other point of this being anunexpected meeting, Buddhadasa lived at lhaja Bomiriya which wasthe place of incident whereas the 1st accused lived at Panadura. TheForeman of the jury himself has questioned Buddhadasa regarding thedistance from lhala Bomiriya to Gorakana, Panadura and about theparticipation of the 1st accused in disputes between his father andBuddhadasa regarding the paddy field belonging to the 1st accused'sfather of which Buddhadasa was ande cultivator and which appears tohave provided the motive for this incident as Buddhadasa was refusingto give up possession of the paddy field. This questioning by the juryshows that it was quite alive to the question that the 1 st accused and
Sri Lanka Law Repons
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Buddhadasa lived in two different places and did not meet on noexpectedly. In these circumstances I am of the view that there has asribeen no prejudice caused to the accused as a result of the High Court nucJudge not adverting to this point.
I am accordingly of the view that the contentions raised on behalf of to tthe accused must fail and dismiss this appeal.
T. D. G. DE ALWIS, J.-l agree.
BANDARANAYAKE, J.-l agree.
1-DOLAWATTE v. ATTONEY-GENERAL