Baddewithana v. The Attorney-General
COURT OF APPEAL.
P. R. P. PERERA, J. AND W. N. D. PERERA, J.
C. A. 337/85 – HIGH COURT, COLOMBO No. B 563.
MAY 21, 1990.
Bribery- Acceptance of gratification to perform official act – Bribery Act s. 19 – Failure ofaccused to call available witnesses -Presumption under s. 114 (f j of the EvidenceOrdinance -Evidence re purpose for which money was accepted.'
(1) From the failure of an accused to offer evidence when a prima facie case has beenmade out by the prosecution and the accused is in a position to offer an innocentexplanation, an adverse inference may be drawn under s. 114(f) of the EvidenceOrdinance.
(2) When the accused's position was that the money received was as rent, the absenceof any corroborrative evidence of the prosecution case relating to the purpose for whichthe accused accepted the money, would make it unsafe to permit a conviction to stand.
Case referred to:
Rex v. Burdett (1820) 4B& Aid. 95. 120
APPEAL from judgment of the High Court of Colombo.
R. I. Obeysekera with/ A. IV., Yusuf, S. Gunasekera /and N. Indatissa forAccused- Appellant.
N. Rodrigo, Senior State Counsel for the State.
Cur. adv. vult.
June 18, 1990../
P. R. P. PERERA, J.
The accused appellant who was a Public Health Inspector at Pundulu
Oya, was indicted on the following charges :
that on or about 8.1.75, being a public servant, he did accept agratification in a sum of Rs. 5/- from Mohammed Ibrahim CaderIbrahim, as an inducement or reward to perform an official act,punishable under section 19 of the Bribery Act,
that on or about 11.1.75, he did accept a gratification in a sum ofRs. 20/- from the said Cader Ibrahim for the same purpose set
(1990) I Sri LR.
Sri Lanka Law Reports
out in Count (1) – an offence punishable under section 19 of theBribery Act.
that being a State Officer, he did accept a gratification in a sumof Rs. 20/- from the said Cader Ibrahim, an offence punishableunder section 19 (c) of the Bribery Act,
At the conclusion of the trial the learned trial Judge convicted theaccused-appellant on all the counts in the Indictment and imposed a termof twelve (12) months rigorous imprisonment suspended for a period offive (5) years on each count, and a fine of Rs. 250/- on each count. Thepresent appeal is against the conviction and sentences imposed.
The prosecution case was briefly as follows : The complainant CaderIbrahim was a licensee of a beef stall, at Katukithula, Pundulu Oya from1972-1975. The appellant was the Public Health Inspector for that areaand one of his duties was to inspect beef stalls and also to approve cattlefor slaughter. On representations made by Cader Ibrahim to the LocalAuthority of the area in May, 1973, the Commissionerof Local Government,Nuwara Eliya, requested the Local Authority to direct the Overseer of thatarea to pass cattle for slaughter which was a duty ordinarily performed bythe accused- appellant. A few months thereafter, on representationsmade by the accused to the Medical Officer of Health, Nuwara Eliya,these duties were restored to the accused. Cader Ibrahim had then madea complaint to the Bribery Commissioner against the accused in November,1974. Thereafter the appellant had on 8.1.75, demanded from CaderIbrahim a sum of Rs. 25/-. Ibrahim had given him Rs. 5/- and hadrequested him to come on the 11 th of January for the balance Rs. 20/-.
At this stage, Cader Ibrahim had contacted the Bribery Commissioner sDepartment and had informed them that the accused had agreed tocollect the balance sum of Rs. 20/- on 11.01.75. The officials of theBribery Commissioner's Department then arranged for a detection on11.1.75. The Bribery Officials had given the usual instructions to thepersons participating in the raid. Particular mention must be made of thefact that the Bribery Officers had given specific instructions to CaderIbrahim to converse with the appellant, with a view to eliciting the purposeforwhichthe money wasgiven. P. C. Hashimof the Bribery Commissioner'sDepartment was asked to accompany Cader Ibrahim and to act as abutcher in the stall, and to listen to the conversation and watch thetransaction.
Baddewithana v. The Attorney-General (P. R. P. Perera, J.)
After the usual instructions were given P. C. Hashim and CaderIbrahim, had gone to the beef stall, around 9.00 a.m. on 11.1.75, andaccording to Ibrahim, the accused had called over at the stall at around
00 p.m. The accused had stated that he had come on that day becausehe was requested to come on the 11 th for the balance. It is the evidenceof Ibrahim that he had two cattle receipts on which he had purchased twoheads of cattle. The accused had signed the cattle receipts even withoutexamining the cattle. After the accused signed the receipts marked ‘P1 ’and 'P1 A’, the accused had asked for the money and he had handed overthe Rs. 20/- in marked notes which the Bribery Officials had given him tobe given to the accused stating that that was the balance. The accusedaccording to Ibrahim accepted this money and put it into his shirt pocket.At this stage, P. C. Hashim, who was watching the transaction andlistening to the conversation had given a signal to Inspectors Serasingheand Thavalingham, who had immediately arrived there and asked theaccused to hand over the money which he had taken. .
The accused-appellant has not given evidence at the trial, but hisdefence, was that he had received this sum of money as rent due to hissister-in-law and denied that this was an illegal gratification. He hasadmitted having accepted Rs. 5/- on the 8th January, 1975, and Rs. 20/- on 11 th of that month, He however, denied that it was a bribe. Accordingto the evidence adduced by the defence, it transpired that Ibrahim residedin a house belonging to one Piyasena, who was a brother of the accused-appellant. This fact was conceded by Ibrahim Cader in his evidence. Itwas the defence case that some months prior to this detection Piyasena'swife had fallen ill, and they had shifted to Sangili Palama, which was aboutthree to four miles from Katukithula. After they so shifted, it was thepractice for the accused-appellant who also resided at Sangili Palama, tocollect the rent from Ibrahim on behalf of Piyasena's wife. The defenceposition was that the rent that Cader Ibrahim paid was Rs. 25/- per month.The defence called a witness by the name of Habeebu Thamby. It wasHabeebu Thamby’s evidence that he was employed by Cader Ibrahim asa butcher for about two years. According to this witness, during the timehe was working for Ibrahim the accused-appellant himself used to collectrents which were due to one Silva Nona. It is his evidence, that theaccused used to come and collect rents from Ibrahim, and that on the 8th,the accused had come and got some money from Ibrahim although hedid not know what amount of money was given to the accused. He hadalso stated, that on the 11 th also Ibrahim had given some money to theaccused, saying that it was money due to the accused.
Sri Lanka Law Reports
 1 Sri LR.
In the course of his judgment having considered the evidence, adducedin this case, the learned trial Judge has made the following observation:
“The accused did not give evidence in this case. The accused didnot call Piyasena or his wife, or Upali or Upali's brother as his witness.One of these people could have established the crux of the defencecase. The defence chose not to call them although they were available.There is a presumption that such evidence being available and if notcalled, would be adverse if they were called to give evidence. Theaccused certainly is entitled not to give evidence."
Counsel for the appellant adverting to this passage in the judgment,submitted that it was not permissible in law to draw such a presumptionunder section 114 (/) of the Evidence Ordinance, against an accusedperson. It was his contention that the learned trial Judge had misdirectedhimself in drawing an adverse inference in terms of section 114 (/) againstthe accused-appellant in the present case. I regret I am unable tosubscribe to this view contended for by Counsel. The inference thatevidence which an accused might have called but has withheld wasunfavourable to him is no doubt incompatible with the fundamental rulethat an accused is free to elect whether he will or will not call evidence.However it may be necessary to consider in an appropriate case, whetherit is an inference that should in any case be drawn. The proper effect tobe given to the failure of an accused to offer evidence when a prima faciecase has ben made out by the prosecution and the accused is in a positionto offer an innocent explanation, is set out in the dictum of Abbott, J. inRex v. Burdetl (1).
“No person is to be required to explain or contradict until enough hasbeen proved to warrant a reasonable and just conclusion against him,in the absence of explanation or contradiction ; but when such proofhas been given, and the nature of the case is such as to admit ofexplanation or contradiction can human reason do otherwise thanadopt the conclusion to which proof tends.” Having regard to the natureof the evdence adduced in this case. I am unable to say with anydegree of conviction that the learned trial Judge was in error when heproceeded to draw an adverse inference against the accused-appellantthat the evidence that the accused withheld could have been adverseto his case.
Baddewithana v. The Attorney-General (P. R. P. Perera, J.)
I am however in agreement with the submission of Counsel for theappellant, that it would be unsafe to permit the conviction of the accused-appellant in this case, to stand in the absence of any corroborrativeevidence to support the evidence of the virtual complainant CaderIbrahim, in regard to the purpose for which the money was accepted asset out in the Indictment. On an examination of the totality of the evidenceof this case, it is clear, that there is no independent corroborration of theevidence of the virtual complainant, either in respect of the allegation thatthe accused-appellant accepted a sum of Rs. 5 as an inducement or areward to perform an official act, or that he accepted a sum of Rs. 20 on11.1.75 for the same purpose. There is no corroboration of the evidenceof the virtual complainant Cader Ibrahim in respect of the charge set outin count (3) as well.
It is indeed significant that at the trial, the most vital witness who is saidto have watched the transaction and listened to the conversation betweenCader and the accused on 11.1.75, namely P. C. Hashim has not beencalled to give evidence. This lapse on the part of the prosecution has tobe considered in the light of the evidence of Habeebu-Thamby a witnesscalled by the defence who has testified to the effect that the conversationbetween Cader Ibrahim and the accused-appellant related to somemoney that was due to the accused- which according to the defence wasrent payable by the virtual complainant to the accused-appellant's sister-in-law.
I am therefore of the opinion that in the absence of any corroborativeevidence relatingtothe purposeforwhichthe accused-appellant acceptedthis money it would be unsafe to permit a conviction of the accused-appellant on charges under the Bribery Act to stand. I therefore set asidethe conviction and the sentences imposed in this case and acquit theaccused-appellant. The appeal is allowed.
W. N. D. PERERA, J—I agree.
Appeal allowed. Conviction set aside and accused acquitted.