WARAPITIYA RAHULA THERO
v.COMMISSIONER GENERAL OFEXAMINATIONS AND OTHERS
SUPREME COURTAMERASINGHE, J.
SC (FR) 683/99MARCH 31st, 2000
Fundamental Rights – Constitution Article 12(1) ■ Member of the Clergy -Application to sit S.L.A.S refused – Violation of rights guaranteed underArticle 12(1).
(1) There is nothing in the jgazette notification or in the Law disqualifyingthe members of the clergy from serving in the Public Service.
APPLICATION under Article 126 of the Constitution.
Ms. Mallika Prematilaka with Manori Pathirana and Leslie Suraweera forPetitioner.
Harsha Fernando, S.C. for Respondents.
Cur. adv. vult.
March 31, 2000.
AMERASINGHE, J.The Petitioner obtained his diploma in Social work in 1983and was confirmed in the post of Social Service Officer witheffect from 01.11.89. He had served in the Department ofSocial Service as Social Service Officer Grade II since that time.On the 24th of March 99, in response to an advertisement inthe Government Gazette dated 2nd March, 99 the petitionerapplied to sit the limited competitive examination for entry into the Sri Lanka Administrative Service.
By letter dated 09. 07. 99 marked P2 in these proceedingsthe Department of Examinations informed the petitioner that
Ranjith v. State (Kulatilake, J.)
other Incriminating factors emanating frpm the evidence in thecase on which the jury could have arrived at a verdict of guiltagainst the accused-appellant. He referred to the evidencerelating to the conduct of the accused-appellant subsequent tothe attack on the deceased, evidence relating to the recoveryof some blood stained clothes from the house of the accused-appellant and the alleged motive for the crime.
In support of his contention the learned Senior StateCounsel cited the case of Dharmawansa Silva & another v. TheRepublic of Sri Lanka!7). In that case Rodrigo, J sought to followthe flexible approach to dying depositions adhered to by theIndian decisions in Bakshish Singh v. State of Punjab(Supra)and Pompiah v. State of Mysore/81 and Kashmeri Singh v. Stateof Madhya Pradesh!91. In the latter case obligations on theCourt is laid down in the following terms:
“First, to marshall the evidence against the accusedexcluding the dying deposition altogether and to seewhether, if it is believed, a conviction could safely bebased on it. If it is capable of belief independently of thedeposition, then of course, it is not necessary to call thedeposition in aid. But cases may arise where the judge isnot prepared to act on the other evidence as it stands eventhough, if believed, it would be safe to sustain a conviction.In such an event the Judge may call in aid the depositionand use it to lend assurance to the other evidence and thusfortify himself in believing what without the aid of thedeposition, he would not be prepared to accept."
In the instant case we have already considered the theevidential value of the alleged dying depositions and rejectedthem. Hence there is no way, to call in aid the dying depositionsto bolster up and strengthen the rest of the evidence in the caseinorder to uphold the verdict of the jury.
We now proceed to examine the submission made by thelearned Senior State Counsel that even if the dying depositions
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are excluded altogether, there still remains items of evidencewhich are of such an incriminating nature that would justifythe verdict of guilt arrived at by the jury.
Inspector Rodrigo testified that on 23. 09. 93 afterinspecting the scene of the crime he went to the house of theaccused-appellant around 4.30 p.m. and that he did not findhim there. He has stated to Court that the accused-appellanthad surrendered to Court through a lawyer on 29. 09. 93.There is no evidence whatsoever elicited from the policewitnesses to the effect that the accused-appellant wasabsconding. As regards the evidence relating to the recovery ofblood stained clothes it appears that these clothes had notbeen sent to the Government Analyst for examination andreport. Hence there is no evidential value to consider that itemof evidence as an item of incriminating evidence against theaccused-appellant. As regards the motive it can also be takenas a factor which could have prompted the aggrieved parties toimplicate the accused-appellant with the murder of thedeceased. Hence we are unable to accept the submissions ofthe learned Senior State Counsel. For these reasons we setaside the verdict, conviction and the sentence and proceed toacquit the accused-appellant.
HECTOR YAPA, J. I agree.
Ranjtth v. State (Kutatilake, J.)
Cases referred to :
Rexv. Woodcock (1789) 1 Leach 500
Somasunderam v. Queen 76 NLR 10
King v. Asirvadan Nadar 51 NLR 322 at 324
Ram Nath v. State of Madya Pradesh (1953) AIR SC 420
Bakhshish Singh v. State of Punjab (1970) AIR SC 1566
Tapinder Singh v. State of Punjab (1970) AIR SC 1566
Dharmawansa Silva and another v. Republic of Sri Lanka (1981)
2 SLR 439
Pompiah v. State of Mysore (1965) SC 939
Kashmeri Singh v. State of Madya Pradesh (1952) AIR SC 59
T.Walaliyadde for Accused Appellant.
Yasantha Kodagoda – State Counsel for Attorney Genera).
,Cur. adv. vult.
May 31, 2000.
KULATELAKA, J.In this prosecution the accused-appellant who wasindicted for the murder of one Okanda Gamage Andiris wasfound guilty of culpable homicide not amounting to murder byan unanimous verdict of the j ury and thereafter was. sentencedto a term of 7 years rigorous imprisonment and a fineof Rs. 2000/- with a default term of 6 months simpleimprisonment. The accused-appellant appeals against theconviction and sentence.
The prosecution story as deposed to by Okanda GamageUpasena a son of the deceased and Udupitiya LiyanagamageJagath Weerasekera a close relative of the deceased issummarised as follows:
The deceased was an old man of 88 years. He was living inhis own house along with his wife and son Upasena. Theaccused-appellant was a man from the same village where hewas known as Navaratne. The accused-appellant’s father wasa treacle seller and he was the only person selling treacle in
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(Navaratne hit me and stabbed me with the knife). There-upon the deceased was taken to the hospital in a van. Insidethe van he had repeated the same utterance. The witness hadtold Court that by the name “Navaratne” the deceased wasreferring to the accused-appellant as his assailant. Around 10p.m. on the same day the deceased had succumbed tohis injuries. Witness also testified to the enmity the accused-appellant had with the deceased. During the insurgency abrother of the accused-appellant had been killed by the army.The story in the village was that it was the deceased who gaveinformation to the army about the accused-appellant’s brother.This factor was highlighted by the prosecution as the motivefor the crime.
Jagath Weerasekera testified that on 22. 09. 93 around6.45 p.m. he was on his way to see his uncle Upasena when hesaw the deceased lying fallen on the road. He had gone up tothe deceased and the latter had asked him as to who he wasand when Weerasekera disclosed his identity the deceasedmade the following utterance:
that village. On the day of the incident the deceased had left hishouse around 3 p.m. to visit his daughter-in-law Dayawathie.Witness Upasena also had followed him to Dayawathie’s placearound 5.30 p.m. on his bicycle. While he was there thedeceased had left Dayawathie's place around 6 p.m. Soon afterthe witness too had proceeded towards their house on hisbicycle. On his way home he met Jagath Weerasekera. He said“Muttha is lying fallen in a pool of blood." After the receipt ofthis information the witness had proceeded to the place wherehis father was lying. The deceased was conscious at the time.When Upasena questioned the deceased as to who hisassailant was, the deceased had made the following utterance:
CARan/lth v. State (Kulatllake. J.)349
(panikaraya’s son hit me). The witness did not know who“panikaraya" was at that point of time. Thereafter he hadproceeded to the house of the deceased and was told bythe deceased’s wife that Upasena was not in. Whereuponhe had borrowed a motor cycle and went in search of a vehicleto take the injured to the hospital and on his way he metUpasena and told him that muttha was lying fallen on the road.
According to the medical expert Wijegunawardene whohad performed the post mortem, the death was due toshock and internal haemorrhage arising from the .injuries to the abdomen and other multiple fractures.Dr. Wijegunawardane, J.M.O. Matara was an experiencedmedical officer with 22 years of service at the time ofgiving evidence.' He had observed 15 injuries on the bodyof the deceased. Those injuries consisted of fractures,lacerations and contusions. Not a single of the injuries wasa stab injury. The medical expert boldly and consistentlyhad expressed the view that those injuries had been inflictedby a blunt weapon.
According to the investigating officer Inspector RupasingheRodrigo having inspected the scene of the crime he hadproceeded to the accused-appellant’s house around 4.30 p.m.on 23. 09. 93. It was located on a hill. The accused-appellantwas not present but on 29. 09. 93 the accused-appellanthad surrendered to Court.
The most significant feature in this prosecution is thatapart from the dying declarations alleged to have been madefirst to Jayantha Weerasekera and then to Upasena, the restof the evidence in the case was not sufficient to securea conviction. The learned trial Judge had correctly graspedthis point when he directed the jury that the case forthe prosecution rests solely on the three dying declarationsand that in the event of the jury rejecting them the jury mayproceed to acquit the accused.
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The learned counsel for the accused-appellant urged thefollowing grounds in his endeavour to assail the verdictreached by the jury, namely –
that the direction given by the learned High CourtJudge to the juiy emphasizing the sanctity attached to a dyingdeposition is not the correct exposition of the law relating tothe admissibility of dying depositions in our law and therebythe learned Judge has misdirected the jury on a vital questionof law.
that the learned trial Judge failed to direct the juryto look for factors that would tend to corroborate a dyingdeposition.
that the learned Judge has failed to adequately directthe jury with regard to the inherent weakness in the evidenceled in the case.
Urging the first point raised by him the learned counsel forthe accused-appellant referred us to the following passage inthe J udge’s summing up to the j ury where the J udge explainedto the jury the law relating to the admissibility of a dyingdeposition in the following terms:
“Dying declarations are admitted on the basis that hadbeen accepted from ancient times that a person at death'sdoor will not utter a lie. He knows that he is about to die.A wicked person may falsely implicate someone who is notthe actual doer of the act. Such instances are not even onein a million.’' (emphasis is mine.)
In fact in making this direction to the jury the learned trialJudge was placing before the jury the classical expositionof the English Common Law as stated by Eyre C.B – Rex v.Woodcock}11 in the following terms:
“The principle on which this species of evidence isadmitted is that they are declarations made in extremity.
CARanjith u. State (Kuiatilake, J.)351
when the party is at the point of death, and when everyhope of this world is gone; when every motive to falsehoodis silenced, and the mind is induced by the most powerfulconsiderations to speak the truth; a situation so solemnlyand so awful is considered by the law as creating anobligation equal to that which is imposed by a positive. oath administered in a Court of Justice.”
In this regard Professor G.L. Peiris in his book The Lawof Evidence in Sri Lanka, first edition at page 202 makesthe following observation:
“The proposition that, before this principle of inclusioncan come into play, the deponent or declarant mustnecessarily be in extremity at the time when the statementis made, is not valid for the law of Ceylon.”
In Somasundaram v. The Queen12’ the learned trial Judgein the course of his summing up to the juiy had explainedthe law relating to dying depositions in the following terms:
“This is a very vital matter for the reason that underour law a statement made by a man who is veryseriously injured is considered with great sanctity,because the law assumes that a person in that positionwill not unnecessarily implicate an innocent man.”
Justice Samerawickrame in his judgment at page 12referring to the above direction given to the jury on the sanctityattached to dying depositions made the following observation:
“This direction does not correctly set out the positionunder our law."
In the instant case the classical view of sanctity attachedto a dying deposition had been placed before the jury by thelearned trial Judge in a more emphatic language, thus causingmuch prejudice to the accused-appellant’s case.
“The learned Senior State Counsel quite correctly broughtto the notice of Court that the learned trial Judge himselfhad labelled the utterances alleged to have been made bythe deceased as “dying declarations”. Having introduced theutterances as “dying declarations” the learned trial Judge hasresorted to the classical principle of the English Law as thebasis for accepting dying declarations as gospel truth. Thelearned counsel for the accused-appellant submitted to Courtthat even though at a latter stage of his summing up thelearned trial Judge had cautionedLthe jury as to the inherentweakness in a dying declaration yet it cannot erase theimpression that had already crept into the minds of the jurors.The learned counsel contended that much prejudice wascaused by the learned Judge’s emphatic phrase "such casesare not even one in a million.” The learned counsel fortified hissubmission with a series of case law. The learned counsel laidemphasis on the judgment of Justice Gratiaen in The King v.Asirvadan Nadar131 at 324 where His Lordship observed:
“Under our Evidence Ordinance the sense of impendingdeath which is believed to provide “a situation so solemnas to create a special guarantee of veracity" is not insistedupon”.
We see merit and substance in his submission that thelearned trial Judge had misdirected the jury by giving anundue sanctity to a dying declaration and placing it on a higherpedestal than rest of the evidence in the case.
At this juncture it is appropriate and pertinent to examinethe dying declarations alleged to have been made to the twoprosecution witnesses. The first utterance was made to JagathWeerasekera and reads as follows:
(panikaraya’s son hit me). The second one was made toUpasena and reads as follows:
(Navaratne hit me and stabbed me with the knife). Thethird one was made to Upasena inside the van and was to thefollowing effect:
The time gap between the first and the second utteranceswas roughly about 15 minutes. The significant feature in thesecond utterance is that it sought to clarify and describe thefirst utterance. Another interesting feature is that the thirdutterance made inside the van to Upasena was exactly a wordrepetition of the earlier utterance made to him. If we are toapply the Test of Probability and Improbability a reasonabledoubt would arise in our minds as to the veracity andtruthfulness of both witnesses with regard to the utterancesalleged to have been made to them by the deceased. On aperusal of the summing up of the learned trial Judge to the jurywe find that the direction given to the jury is thoroughlyinsufficient on these matters pertaining to the alleged dyingdepositions.
Ordinarily it is not safe to base a conviction for murdersolely upon a dying declaration, unless there is corroborationfrom an independant source. Vide the decision in Ram Nath v.State of Madhya Pradesh!41 or else by circumstantial evidence.Vide Bakhshish Singh v. State of Punjab/51. An examination ofthe evidence of the medical expert Dr. Wijegunawardane vis avis the dying depositions made to Upasena serious doubtarises as to the truthfulness of the utterance itself whichspeaks of stabbing with a knife. Of the 15 injuries noted in thepost mortem report and described by the Doctor there wasn'ta single stab injury. Furthermore the Doctor was quiteemphatic when he expressed his view that the inj uries were theresult of ah attack with a blunt weapon. Thus the medicalevidence not only contradicts the dying declaration made to
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Upasena but In fact demolishes it in toto. Unfortunately thejury did not receive adequate guidance on this vital point aswell.
The learned counsel for the accused-appellant sought toimpugn the first utterance made to Weerasekera by raising aqueiy as to why Jagath Weerasekera who was possessed of thefact that it was the “panikaraya’s son” who had attacked thedeceased at that point of time when he met the deceased’s sonUpasena did not disclose that fact to Upasena. Learned SeniorState Counsel attempted to answer this query by submittingthat Jagath Weerasekera being a layman his prime dbncemwas to fetch a vehicle to take the injured person to the hospital.We find it difficult to accept this submission becauseaccording to the prosecution it was to Weerasekera. thedeceased had made the first utterance disclosing the identityof the person who attacked him and a reasonable man’sconduct would be to disclose that fact to Upasena who is theson of the deceased, at the earliest opportunity. We havealready entertained a serious doubt as to the truthfulnessof the utterances made to Upasena and the testimonialtrustworthiness of that witness. Taking this factor inconjunction with Weerasekera’s conduct in not informingUpasena of the identity of the assailant cast a serious doubt inour minds as to the veracity of Weerasekera’s evidence to theeffect that the deceased made a dying declaration to him.
In fact inasmuch as a dying declaration is admitted on thebasis of necessity an obligation lies on the learned trial Judgeto direct the jury to be on its guard to scrutinize all the relevantsurrounding circumstances. Vide Dua, J in Tapinder Singh v.State of Punjab/61. Hence we take the view that the second andthird grounds urged by the learned counsel for the accused-appellant stand in good stead and carry sufficient weight tovitiate the conviction.
The learned Senior State Counsel submitted to Court thateven if the dying depositions are disregarded yet there were
Warapttiya Rahula Them v. Commissioner General of
Examinations and Others (Amerasinghe. J.)
his application was rejected, since he was a member of theclergy.
There is nothing in the gazette notification or in the lawdisqualifying the members of the clergy from serving in thePublic Service. They are in the circumstances, entitled to theprotection relating to equal treatment guaranteed by Article12(1) of the Constitution.. Indeed Learned Counsel for therespondents properly concedes that there has been a violationof petitioner’s fundamental rights guaranteed by Article, 12(1)of the Constitution, although he did express concern about theappropriateness of a member of the clergy functioning as anordinary public officer.
In the circumstances, we declare that the petitioner’srights under Article 12(1) of the Constitution have beenviolated. We made order that the State shall pay a sum ofRs. 25,000/- as costs to the petitioner.
WUETUNGA, J.I agree.
BANDARANAYAKE. J. – I agree.