BANDARANAIKE v. JAGATHSENA AND OTHERS

023-SLLR-SLLR-1984-2-BANDARANAIKE-v.-JAGATHSENA-AND-OTHERS.pdf


CA
Wijegunawardena v. Gracia Catherine (Tambiah. J.)
397
BANDARANAIKE
v.
JAGATHSENA AND OTHERS
SUPREME COURT.
WANASUNDERA, J„ COLIN-THOME', J. AND CADER. J.
S.C. APPEAL No. 58/82.
M.C. HATTON No. 18725.
MARCH 5 TO 9, OCTOBER 22, 25, 26. 29. 30. 1984.
Criminal Law – Unlawful assembly – Insult, meaning of – Mischief – Penal Code,sections 140, 484 read with 146, 410 read with 146 and 410 read with 32 —Assessment of contradicted evidence.
Appeal – Right of appeal of aggrieved person not a party to the original case -Article 128 of the Constitution — Code of Criminal Procedure Act, No. 15 of 1979,section 260 — Judicature Act, No. 2 of 1978, section 41(1) — Review of questions offact and taw – Articles 127, i28, 134(2) and 134(3) of the Constitution.
The 1st to the 6th respondents were charged in the Magistrate's Court of Hatton onfour counts with committing the offences of membership of an unlawful assemblywhose common object was to commit the offence of insult against Mrs. SirimavoBandaranaike and insult and mischief punishable under sections 140, 484 and 410read with 146 and 410 read with section 32 of the Penal Code.
On the night of 13th May 1979 when Mrs. Sirimavo Bandaranaike and her party were inthe Glencaim Bungalow at Dikoya the 1 st to 6th respondents along with some othershad gone there and for about two hours indulged in singing obscene songs insultingMrs. Bandaranaike. On the directions of Mrs. Bandaranaike. one Kamala Ranatungawho was with her had taken down a substantial part of the words uttered on notepaperprovided by her.
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The Magistrate convicted the 1 st to 6th respondents of the charges under section 140and 484 read with section 146 of the Penal Code and f’ned the 1 st, 2nd and 5threspondents Rs. 250 each and warned and discharged the others ordering each ofthem to oay Rs. 200 as State costs.
The 1 st to 6th respondents appealed to the Court of Appeal from the findings and orderagainst them of the Magistrate. Mrs. Siomavo Eandara"aixe as a party aggrieved wasallowed to intervene in the proceedings before the Cooit of Appeal and was heard byher lawyers The Court of Appeal however acquitted all the respondents and Mrs.Bandaranaike filed petition in the Supreme Court seeking a review of the judgment ofthe Court of Appeal. By way of preliminary objection her locus standi was challenged.
The respondents further challenged the evidence relating to their identification and thecredibility of the evidence of the prosecution witnesses.
Held –
Under section 260 of the Code of Criminal Procedure Act No. 15 of 1979 everyaggrieved party has the right to be represented in "any criminal court" by anattorney-at-Law and implicit in this right is the right to address court and makesubmissions. This right is not confined to a Court of First Instance; the expression 'anycriminal court" is wide enough to cover all Courts including Appellate Courts having thenecessary jurisdiction. Section 41(1) of the Judicature Act No. 2 of 1978 lendssupport to this interpretation. An attorney-at-iaw is entitled not only to assist and advisehis clients but also to appear, plead or act on behalf of them in every court or otherinstitution established by law for the administration of justice.
The Court of Appeal had rightly held that Mrs. Bandaranaike was an aggrieved party andthat this status did not cease with the conviction of the respondents in the Magistrate'sCourt. It was a status which continues until the final disposal of the appeal. She wastherefore entitled to be represented in the Court of Appeal and her attorney-at-law wasentitled to be heard in that Court.
Under Article 128(2) the Supreme Court has a wide discretion to grant specialleave tg appeal to itself from a judgment of the Court of Appeal where in the opinion ofthe court the case or mattei is fit for review by the Supreme Court. Under Article128(2) of the Constitution i; is not necessary to have been a party in the original Courtto be granted a hearing in the Supreme Court. Support for this view comes also fromArticle 134(2) and (3) of the Constitution.
Under Article 127 of the Constitution the Supreme Court is the final court with civiland criminal appellate jurisdict'on for the correction of all errors in fact or in lawcommitted by the Cot rt of Appeal or any Court of First Instance and may affirm, reverseor vary any order, judgment, decree or sentence of the Court of Appeal. This widepower must be used with circumcpecron A court of appeal must attach the greatestweight to the opinion of the judge who saw the witnesses and heard their evidence andconsequently should not disturb a judgment of fact unless it is unsound. Unless (1) theverdict of the judge is unreasonably against the weight of eviaence. (2) there is amisdirection on the law or on the evidence, (3) the court of trial has drawn the wronginferences from matters in evidence, tile appeal court must not interfere with ajudgment of fact.
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Bandaranaike v. Jagathsena
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(41 Whether words are insulting depend on a variety of circumstances such as thecontext in which they were uttered, the intention, the tone and the attitude of theperson uttering them and the situation :r. which they were. Section 484 requires thatthe person insulting should intend to provoke a person to commit a breach of the peaceor other offence or know it to be likely that such provocation will cause that person tobreak the publ.c ceace or commit any other offence. The offence depends on theprovocation pivee and not upon the piovocation felt. It is not necessary that the personinsulted shojld in fact te provoked The mere forbearance of the person insulted isinsufficient to protect the offender.
To constitute an unlawful assembly there must be an assembly of five or morepersons having a common object which is one of the six specified in section 138 of thePenal Code. The mere presence of a person in an assembly does not make him amember of an unlawful assembly unless it is shown that he had done something oromitted to do something which would make him such a member or unless being awareof facts which render any assembly an unlawful assembly he intentionally joins thatassembly or continues in it.
In a case where there are several accused the case against each accused must beconsidered separately. Omnibus evidence of a general character must be closelyscrutinised in order to eliminate all chances of false or mistaken implication of innocentpersons. It is possible that only some members of the assembly sang and that some ofthose in the assembly did not entertain the common object.
When versions of two witnesses do not agree the trial judge has to considerwhether, the discrepancy is due to dishonesty or to defective memory or whether thewitness' powers of observation were limited. The demeanour of the witness in thewitness box must be taken into account.
The Magistrate had correctly evaluated the evidence of Mrs Bandaranaike andKamala Ranatunga and the conflict in the evidence on the number of pens used inrecording the words of the songs does not make the record of the song a fabrication.There is no doubt that the incident as deposed to by Mrs. Bandaranaike did take placeand her evidence is truthful and that whoever sang the songs intentionally insulted herand gave piovocation to her. But the prosecution has not been able to establishbeyond reasonable doubt the identity of the persons who sang the songs or whoentertained the common ooject of intentionally insulting Mrs. Bandaranaike.
1st respondent having died when this appeal was pending the appeal against hisacquittal by the Court of Appeal abates
Cases referred to:
King v Gunaratne el at 14 Ceylon Law Recorder 174
Martin Fernando v. The Inspector of Police Mmuwangoda (1945) 46 NLR 210.
Hamffa v Packeer (1949) 51 NLR 330.
Fraser v Smnaiya (1910) 14 NLR 3
Jayasurr/a v. Ratnayake (1949) 40 CLW 47
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APPEAL from the Court of Appeal.
H. L. de Silva. P.C. with Faiz Musthapha. S. Dassanayake. H. H. Ashroff and K.Balapatabendifor petitioner.
S. J Kadirgamar, Q.C. with S. L. Gunasekera, Raja Dep and Daya Pelpola for 1st and2nd repondents.
K. Kanag-lswaran with Rajah Dep for 3rd and 4th repondents.
Mark Fernando with Daya Pelpola for- 5th respondent.
A. H. C. de Silva. Q.C. with M. S. M. Naseem for 6th respondent.
S. W. B. Wadugodapitiya, Addl. S.G. with D. P. Kumarasinghe. S.S.C. for 7 th and 8threspondents.
Cur. adv. vult.
December 12. 1984.
COLIN-THOME, J.
The 1st to the 6th respondents were charged in the Magistrate’s
Court of Hatton in case No. 18725 on the following charges
That on or about the 13th day of May, 1979, at Dikoya,within the jurisdiction of this Court, you along with others weremembers of an unlawful assembly with the common object ofintentionally insulting and thereby giving provocation to SirimaR. D. Bandaranaike, intending or knowing it to be likely that suchprovocation would cause her to break the public peace or tocommit any other offence, and thereby committed an offencepunishable under section 140 of the Penal Code ;
That at the same time and place and in the course of the sametransaction one or more members of the said unlawful assemblydid intentionally insult Sirima R. D. Bandaranaike by uttering
(inter alia) the following words "I very much like to get into a
river along with Sirima and swim with her and also to suck both
her lips” and thereby gave provocation to her intending or
knowing it to be likely that such provocation would cause her tobreak the public peace or to commit any other offence, andthereby committed an offence in prosecution of the saidcommon object of the said unlawful assembly, or such as themembers of the said unlawful assembly knew to be likely to becommitted in prosecution of the said common object, anoffence punishable under section 484 read with section 146 ofthe Penal Code :
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Bandaranaike v. Jagathsena (Cohn-Thome J.j
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That you did also in prosecution of the common object of thesaid unlawful assembly commit mischief by causing damage tothe amount of Rs. 1,989 to the jeep bearing distinctive No. 31Sri 1294 belonging to Sirima R. D. Bandaranaike an offencepunishable under section 410 of the Penal Code read withsect.on 1*f6 ;
That in respect of the said act of mischief, you are also guilty ofan offence punishable under section 410 of the Penal Code readwith section 32.
The case for the prosecution was that on the 13th of May 1979, atabout 9 p.m. a party of about 10 to 12 persons, which included the1st to the 6th respondents, came to Glencairn Bungalow in Dikoyaoccupied by the petitioner and her party, shouting out "Where is Mrs.Bandaranaike the prostitute ?" and thereafter indulged in singingobscene songs referring to Mrs. Bandaranaike. Some of the wordsuttered were spoken to by A. R. Don Gunaratne Jayasinghe, Mrs.Bandaranaike's bodyguard, and a substantial part of the words utteredwere taken down by Kamala Ranatunga at the request of the petitioneron notepaper provided by her. The petitioner stated that she readwhat was taken down that very night and the document P2 shown toher in Court contained what was written down. The 1st to the 6threspondents did not give evidence but called the Examiner ofQuestioned Documents and a licensed Surveyor who had made a planof Glencairn Bungalow. The Examiner of Questioned Documentstestified that the document P2 had been written with three ballpointpens while Kamala Ranatunga insisted that she had used only oneballpoint pen. The Surveyor was called to show that Jayasinghe couldnot have seen what was happening inside the bungalow through awindow while standing at a point outside the bungalow.
The learned Magistrate at the conclusion of the trial made orderconvicting the 1 st to the 6th respondents on the first two charges.The first, second and fifth respondents were fined Rs. 250 each inrespect of each charge ; the 3rd respondent was warned anddischarged ; the 4th and 6th respondents were also warned anddischarged and ordered to pay Rs. 200 each as State costs. All therespondents were acquitted on the 3rd and 4th charges. The sixrespondents appealed against their convictions to the Court of Appealand the Court of Appeal by its judgment delivered on the 31st August1982, acquitted the respondents upon the ground that if the learned
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Magistrate had viewed the evidence adduced by the prosecution "intheir proper perspective," he would not have convicted therespondents.
The petitioner in her petition to us has canvassed the findings of theCourt of Appeal. The main grounds of the petition are
that the evidence of Jayasinghe, Kamala Ranatunga and thepetitioner when viewed "in their proper perspective" would havecompelled a prudent man in the particular circumstances of thiscase to find the respondents guilty of the charges ;
that it is inconceivable that these revolting obscene words werefalsely put into the mouths of these respondents by KamalaRanatunga and the petitioner when "milder" words wouldreadily have occurred to them if they had been inclined tofabricate evidence ;
{c) that the testimony of the petitioner, a former Prime Minister ofthe Island whose credibility the learned Magistrate did notdoubt, established that the impugned document P2 was inexistence on the very night of the alleged incident;
that it was immaterial whether one ballpoint pen or threeballpoint pens were used by Kamala Ranatunga. What was allimportant is whether what was written down was what wasuttered and that is amply corroborated by the unimpeachabletestimony of the petitioner which the learned Magistrate readilyaccepted ;
that the utterances of the respondents on entering GlencairnBungalow, viz : "Where is Mrs. Bandaranaike the prostitute ?"and their subsequent behaviour would have compelled anyprudent man to infer that the unlawful assembly was inexistence prior to their "invasion" of the bungalow and thecommon object of such assembly was to insult the petitioner;
that the credibility of the witnesses is essentially a question offact and therefore eminently a question for the trial Judge. It isonly in rare cases that such a finding should be interfered withand this it is submitted is not such a case ;
that the judgment of the Court of Appeal is erroneous and tendsto divert the due and orderly administration of justice in thiscountry into a new course which might be drawn into an evilprecedent in the future ;
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{h that the judgment of the Court of Appeal is, in the particularcircumstances of this case, manifestly unreasonable and ifunreversed, would occasion a grave miscarriage of justice.
The petitioner submitted that this case constituted a matter fit forreview by the Supreme Court and prayed for such other and furtherrelief as shall seem fit and meet to this Court.
At this stage it is pertinent to observe that the plaint was first filed inthis case on the 25th of May 1979, against 11 accused, chargingthem under two counts as follows : •
that on or about the 13th May 1979, at Dikoya they insultedSirima R. D. Bandaranaike using words such as "… I like verymuch to get into a river with Sirima and swim with her and tokiss both her lips while swimming and to suck both her breasts…." and thereby gave provocation to her, intending or knowingit to be likely that such provocation would cause her to break thepeace or to commit any other offence and thereby committedan offence punishable under section 484 of the Penal Coderead with section 32.
that at the same time and place aforesaid and in the course ofthe same transaction the accused did with intent to cause orknowing that they were likely to cause wrongful loss or damageto Sirima R. D. Bandaranaike caused damage to jeep bearingNo. 31 Sri 1294 which was in the custody of the said Sirima RD. Bandaranaike by tearing the cover and by removing anddestroying the reflecting side mirror fixed on the right hand frontmudguard so as to reduce the value of the said jeep in a sumamounting to Rs. 1,987, and committed mischief, an offencepunishable under Section 410 of the Penal Code read withsection 32.
On the 5th of November 1977 the Police filed an amended plaint.The charges against five of the accused were dropped and they weredischarged. The two counts in the plaint dated 25th May 1979 werealtered to four counts against the six respondents as stated at theoutset of this judgment.
Learned Counsel for the respondents took the preliminary objectionthat the petitioner had no locus standi. It was submitted that she wasneither an appellant nor a respondent in the Court of Appeal, The
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Court of Appeal erred in allowing her application to be heard as shewas not a party in the proceedings. This concession by the Court ofAppeal did not convert her into a party and did not confer on her aright to appeal to the Supreme Court. Under Article 1 28 of theConstitution the right of appeal was restricted only to a party in anyproceedings.
In the Court of Appeal learned Counsel for the petitioner made anapplication to represent the petitioner, who he submitted was an"aggrieved party" in the case. He also asked to be allowed to addressCourt on her behalf. He relied on the provisions of section 260 of theCode of Criminal Procedure Act, No. 15 of 1979 which reads :
"Subject to the provisions of this Code and any written law everyperson accused before any criminal Court may of right be defendedby an attorney-at-law, and every aggrieved party shall have the rightto be represented in court by an attorney-at-law."
The corresponding Section in the repealed Criminal Procedure Code(Cap. 20) was section 287 which stated :
"Every person accused before any criminal Court may of right bedefended by a pleader."
It is clear that the legislature intended that the right ofrepresentation shall be extended to an "aggrieved party". The right toaddress Court and to make submissions is implicit in the right ofrepresentation. This right is not confined to a Court of first instance, atrial Court and a court holding an inquiry. The expression "before anycriminal Court" in section 260 is wide enough to cover all Courtsincluding Appellate Courts having the necessary jurisdiction.
Section 41 (1) of the Judicature Act, No. 2 of 1978, lends supportto this interpretation. It states :
"Every attorney-at-law shall be entitled to assist and advice clientsand to appear, plead or act in every Court or other institutionestablished by law for the administration of justice and every personwho is a party to or has or claims to have the right to be heard in anyproceeding in any such court or other such institution shall beentitled to be represented by an attorney-at-law."
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Every person who is either a party to or has or claims to have theright to be heard in any proceedings in any Court is invariably a client ofan attorney-at-law. It follows, therefore, that an attorney-at-law shallbe entitled not only to assist and advice his clients but also to appear,plead or act on behalf of them in every court or other institutionestablished by law for the administration of justice.
Applying these provisions to the circumstances of this case theCourt of Appeal has rightly held that Mrs. Bandaranaike was an"aggrieved party" and that this status did not cease with the convictionof the respondents in the Magistrate's Court. It was a status whichcontinues until the final disposal of the appeal. She was therefore,entitled to be represented in the Court of Appeal and herattorney-at-law was entitled to be heard in that Court.
It now becomes necessary to examine the relevant provisions ofArticle 128 of the Constitution in relation to the petitioner'sapplication for a review of the judgment of the Court of Appeal :-
"128. (1) An appeal shall lie to the Supreme Court from anyfinal order, judgment, decree or sentence of theCourt of Appeal in any matter or proceedings,whether civil or criminal, which involves a substantialquestion of law, if the Court of Appeal grants leaveto appeal to the Supreme Court ex mero metu or atthe instance of any aggrieved party to such matteror proceedings ;
(2) The Supreme Court may, in its discretion, grantspecial leave to appeal to the Supreme Court fromany final or interlocutory order, judgment, decree, orsentence made by the Court of Appeal in any matteror proceedings, whether civil or criminal, where theCourt of Appeal has refused to grant leave to appealto the Supreme Court, or where in the opinion of theSupreme Court, the case or matter is fit for reviewbythe Supreme Court:
Provided that the Supreme Court shall grant leave toappeal in every matter or proceedings in which it is satisfiedthat the question to be decided is of public or generalimportance."
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Under Article 1 28 (2) the Supreme Court has a wide discretion togrant special leave to appeal to the Supreme Court from a judgment ofthe Court of Appeal where in the opinion of the Supreme Court, thecase or matter is fit for review by the Supreme Court, Under Article128 (2) you do not have to be a party in the original case.
This view is strengthened on an examination of Article 134 (2) and
of the Constitution :
"134 (2). Any party to any proceedings in the Supreme Courtin the exercise of its jurisdiction shall have the rightto be heard in such proceedings either in person orby representation by an attorney-at-law.
The Supreme Court may in its discretion grant to anyother person or his legal representative such hearingas may appear to the Court to be necessary in theexercise of its jurisdiction under this Chapter."
In the instant case as there are questions of law and fact to bedecided which are of public and general importance I hold that thiscase is fit for review by the Supreme Court and the preliminaryobjections are overruled.
Learned Counsel for the petitioner submitted that it is only in rarecases that a finding on fact by a Magistrate should be interfered with.He submitted that this was not such a case.
Under Article 127 of the Constitution –
"The Supreme Court shall, subject to the Constitution, be the finalCourt of civil and criminal appellate jurisdiction in Sri Lanka for thecorrection of all errors in fact or in law which shall be committed by
the Court of Appeal or any Court of First Instanceand it may
affirm, reverse or vary any order, judgment, decree or sentence ofthe Court of Appeal"
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This wide power must be used with circumspection. It is notnecessary to review the many decisions of this court which have heldthat a court of appeal should "attach the greatest weight to theopinion of the judge who saw the witnesses and heard their evidence,"and, consequently, should not disturb a judgment of fact unless it isunsound. The principle embodied is a simple one, and has been statedsuccinctly in two cases.
In the King v. Gunaratne etal(1) Macdonell, C.J. stated :
"This is an appeal mainly on the facts from a Court which saw andheard the witnesses to a Court which has not seen or heard them,and in dealing with this judgment I have to apply the three tests.asthey seem to be, which a Court of Appeal must apply to an appealcoming to it on questions of fact:
Was the verdict of the Judge unreasonably against theweight of evidence,
Was there a misdirection either on the law or on theevidence,
Has the Court of trial drawn the wrong inferences frommatters in evidence."
In Martin Fernando v. The Inspector of Police, Minuwangoda, (2)Wijeyewardene, J. held that:
"An Appellate Court is not absolved from the duty of testing theevidence extrinsically as well as intrinsically" although "the decisionof a Magistrate on questions of fact based on the demeanour andcredibility of witnesses carries great weight." Where "a closeexamination of the evidence raises a strong doubt as to the guilt ofthe accused, he should be given the benefit of the doubt."
It is common ground that the three most important witnesses in thecase are the petitioner, Kamala Ranatunga and Jayasinghe. Mrs.Bandaranaike stated that she came to Hatton on the 12th May 1979in connection with Urban Council elections. She put up at theGlencairn Bungalow for the night. On the 13th after the electioncampaign she returned to the bungalow at about 6 or 6.30 p.m. Shewas accompanied by Kamala Ranatunga, Jayasinghe, Chandrasena,Tilak Liyanage, Taldena and a driver Simon. She had dinner at about 8
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or 8.30 p.m. and thereafter retired to her room accompanied tyKamala Ranatunga. This room adjoined the hall. The hall consisted of alounge and sitting room separated by an arch. Jayasinghe occupiedthe room next to her. At about 9.15 p.m. she heard the tooting of acar horn and some persons talking in a loud tone come inside thebungalow. A person was talking loud as if he was addressing ameeting. She heard a group of persons Singing at intervals. Thesinging came from the direction of the hall.
Mrs. Bandaranaike stated that she was unable to state the words ofthe song in Court as they were so filthy. She had asked KamalaRanatunga to note down the words on note,paper which she tookfrom her bag. Kamala Ranatunga took them down in her presence.Later as Kamala's handwriting was not easy to read she got Kamala toread over the words to her. She identified P 2 and P 2 A as the'paperstaken out of her bag on which Kamala wrote the words of the song.The song caused her severe pain of mind and annoyance. She did notsee the persons who were singing the song. They continued to singeven after 11 p.m. She had to get down the Manager of the hotel andshe asked him to tell those persons to allow them to be in peace as itwas after 11 p.m.
Police Officers arrived at the bungalow after midnight. She did notmake a statement to them. They took Jayasinghe and Tilak to thePolice Station.
Under cross-examination she was shown P 2 and repeated that itwas written by Kamala on her instructions. On the following morning(14th) she telephoned the Inspector-General of Police about theincident and told him that as she had to proceed to Ratnapura that dayfor a meeting she had no time to make a statement. The I.G.P. toldher to get the others to make statements and to speak to him whenshe returned to Colombo. She was not called upon by the Hatton orNorwood Police to make a statement and she did not mention theexistence of P2 to them. She intended to produce it in Colombo.
On the 15th she spoke again to the I.G.P. about the alleged incidentand thereafter a police officer from the Cinnamon Gardens PoliceStation recorded her statement that day. She told the police thatinsulting words were uttered during the incident. At that time P2 wasnot with her. it was with Kamala Ranatunga.
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A group of persons were singing for about 1 1 /2 hours. All that wassung was not written down. She was questioned again by the policeon the 18th and in that statement she referred to P2. When she wasquestioned by the police on the 15th she was not questioned in detailabout the words used in the song. They were not words that could bestated to the police, particularly to a male police officer. On the 1stoccasion she made onl/ a short statement. On the 18th she gave adetailed statement to the police.
Kamala Ranatunga stated that Mrs. Bandaranaike asked her to takedown the words of the songs as much as possible. She wrote thewords on paper and with the pens which were in Mrs. Bandaranaike'sbag. The songs, which were sung very fast, were recorded by her ontwo sheets of paper P2 and P2A. These papers were in her custodyuntil she handed them over to the police on the 18th. The singingwent on for about two hours. She took down the words whilestanding. She said she used a black colour ballpoint pen. She wasunable to give the number of papers taken by her from the bag wherefiles were kept. She was concentrating on not missing any of thewords sung. She stood close to the door and took them down. Therewere occasions when she went to speak to the security officers in thenext room. Later she showed P2 to Mrs. Bandaranaike. Mrs.Bandaranaike found it difficult to read her handwriting and so she readit over to her. At that time the black ballpoint pen was on the table.
Kamala Ranatunga's attention was drawn to line 4 on the reverse ofP2. She stated that it appeared to her that the page was written withonly one pen. It was not clear to her that there was a difference in thecolour between line 4 and the other lines. On the 15th she returned toher home in Veyangoda She was asked to come to Rosmead Place onthe 18th. On that day she made a statement to the police and handedover P2 and P2A to them.
Jayasinghe stated that at about 9.15 p.m. four or five vehiclesapproached the hotel with their horns tooting. At that time he wasnear the telephone counter. About 10 persons in a group entered thebungalow after knocking at the door. The first respondent came infirst. There were about three women in this group. After they came inJayasinghe withdrew towards his room. They asked whether therewas a stud bull present. Jayasinghe stated, "They asked 'where isSirima the prostitute ?' I am not sure as to who had asked so. One
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among them askeu this." Jayasinghe added, "The group of personswho had come asked for a bottle of whisky." Then he correctedhimself and said the 1 st respondent asked for whisky and the managersaid there was no whisky and then the 2nd respondent caught him byhis shirt. Then some of the persons went into the sitting room whileothers went to the kitchen through the corridor.
Jayasinghe stated he saw an employee taking tumblers and ice tothe group. "I think they took liquor thereafter. I saw them taking liquor."While consuming liquor they started to sing in an insulting manner; hecould recollect some of the words, they were :
"I like very much to get into a river with Sirima and swim and tosuck both her lips while swimming, and also to squeeze both herbreasts. I like very much to get together with Sirima and get into ariver and swim and to get on to her stomach : There comes thefoolish son ; Mother take the girl inside the house ; Please take thegirl inside. Sirima my life, please listen, your period is over now. Thisis our period ; The elephants have come in 1977."
A male was singing the song in lead while others joined in the refrain.Mostly it was the men who sang.
In answer to Court Jayasinghe said :
"I saw them singing in the sitting room and swinging golf clubs Ican compare the voice of the leading singer to that of the 5thaccused."
He stated that the 1 st, 2nd and 5th respondents were among tho 'ewho sang. He had heard the 1 st respondent speak briefly the previoi sevening but he was not familiar with the voices of the 2nd, 3rd, 4th,5th and 6th respondents before the 13th.
He identified the 1st, 2nd, -3rd, 4th and 5th respondents in thecorridor. In addition to the six respondents there were others whowere singing. The group sang till about 11.10 p.m. After the Managerspoke to them they prepared to leave. He heard one of those personsshout that if the vehicles were not removed within five minutes theywould push them down the hill. He was not sure who said this. He sawthe 1 st. 2nd and 5th respondents pushing the petitioner's jeep. When
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the jeep was being shaken hard the 3rd respondent made an appeal tohis father, the 1st respondent, "Father, mere is no necessity to dothis, enough of this singing, let us go". Then the 1st respondentpushed the 3rd respondent who fell and the 1 st respondent pulled outa pistol and threatened to shoot his son. Then the 4th respondent andsome other women pulled these respondents away, pushed them intothe cars and left.
Later Jayasinghe accompanied police officers tc the Hatton PoliceStation where he made a statement. Sub-Inspector Sarders of theNorwood Police Station arrived after that and he made a statement tohim as well. On the 18th he made a 3rd statement to the C.I.D.
Under cross-examination it became evident that when Jayasinghestood by the door of his room during the incident nobody inside thelounge or the sitting room was visible from this position. Havingconceded this vital tact he then stated for the first time that he wentoutside the bungalow and peeped through a window near the loungefor two or three minutes. He did not however say what he saw orwhether he identified any of the respondents singing insulting songsat the time he peeped through the window. He admitted that if he hadnot gone out and peeped through the window nothing happening inthe sitting room or lounge would have been visible to him from nearthe door of his room.
It was established by the defence that Jayasinghe did not mention inhis first statement to the Hatton Police in the early hours of the 14ththat he had peeped through a window near the lounge. He statedfalsely under cross-examination that he had mentioned this fact in hisstatement to the C.I.D. on the 18th. This was disproved by Inspector
K. Gajanayake who recorded his statement on the 18th. Jayasinghestated that he got close to the window, one or two feet away from it,and peeped through it into the hall. He pointed out the window fromwhich he peeped in the plan 1 D 2 produced by the defence. Havingfirst said that he peeped through the window only once, later hestated that he had done so twice or thrice and that he spent more than10 or 15 minutes peeping through the window.
The only other witnesses who claimed to have identified therespondents are Chandrasena and Tilak Liyanage. They were securityofficers. Chandrasena stated that 12 or 13 persons arrived that night.During the singing, on the instructions of Jayasinghe, he took up a
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position at a place like a balcony. This was at the rear of the buildingbetween Jayasinghe's room and the kitchen. Chandrasena stated thatat a certain stage the first respondent came into the corridor andattempted to kick the door of the room occupied by Mrs.Bandaranaike but the 6tn respondent rushed up and pulled him awayHe also stated that he saw the 2nd and 5th respondents with golfclubs walking about in the hall shouting "Who is in come out"
Apart from the impossibility of observing anybody in the lounge orsitting room from the balcony it was also established thatChandrasena was not familiar with the voices of any one of therespondents. He had seen the 1 st, 3rd and 4th respondents briefly onthe previous day and he saw the 2nd, 5th and 6th respondents for thefirst time on the day of the incident. Chandrasena stated that hementioned to the Police that the 2nd and 5th respondents werewalking up and down with golf clubs. He was forced to admit that hedid not know the 2nd and 5th respondents at the time of the incidentand that he did not mention to the police that some persons werewalking about with golf clubs. He did not know the names of therespondents. Later he learnt their names from outsiders.
Tilak Liyanage's evidence was rejected by the learned Magistrate.He was not at the bungalow for most of the time as he went to make atelephone cal! to the police from a nearby hospital. He stated that atthe time the respondents arrived he was in an upstair room in thebungalow. He could not explain how he could have seen therespondents from the room upstairs. Liyanage claimed that prior tothe incident he had known the 1st, 3rd and 4th respondents.However, it was proved by the defence that in his statement to theHatton Police he had stated "Jagathsena was there. I did not know theothers"
Simon Singho, driver of Mrs. Bandaranaike, stated that the singingstarted at about 9 p.m. He was unable to recollect the words and hedid not identify the persons who sang. After about half an hour hewent on foot to the Hatton Police Station about 4 or 5 miles away andmade a complaint as he feared that Mrs. Bandaranaike would beharassed by the group of persons who arrived at the bungalow.
•None of the "respondents gave evidence at the trial. The defencecalled P. H. Gunatunga, B.Sc. Hons., Examiner of Questioned
Documents. He had 15 years' experience in examing questioned
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documents. He was also trained at the Royal Canadian MountedPolice Crime Detective Laboratory for 1 1/2 years and at Ottawa andToronto. He also had experience in examining inks and pens includingballpoint pens and other writing implements. He had examined thedocument P 2 under a microscope under ultra violet and infra red rays.The examination revealed that-
"1. the colour of t*~e ink in the entire handwriting in toe body ofpage 1 of P 2 and the colour of tne ink in the handwriting fromline 9 to the last line of page 2 of P 2 is violet blue.
the colour of the ink in the handwriting from line 1 to line 3 andfrom line 5 to 8 in page 2 of P 2 is blue black.
the colour of the ink in the handwriting in line 4 of page 2 of P 2is bright blue "
He also examined document P 2A. The entirety of this documentwas written with a ballpoint pen using an ink which was violet blue incolour. P 2 had been written with three different ballpoint pens.
Under cross-examination Mr. Gunatunga stated that the methodadopted by him for his report on P 2 was only a physical analysis. Heconceded that sometimes colours of ink change due to effluxion oftime and also due to chemical action. The common factor in P 2 andP 2A was that ballpoint pens with blue colour ink were used. He statedthat he had done chemical tests on ballpoint pen ink in other cases buthe had not done so in this case. Permission of Court is obtained forchemical tests as the documents may get damaged. The learnedMagistrate accepted his opinion that P 2 had been written with threedifferent ballpoint pens.
D. L Y A. Wijewardhana, a licensed Surveyor, was called by thedefence to produce plans of the Glencairn Bungalow marked 1D1 and1D2. He had prepared these plans on the 10th February 1980. Hestated that the window through which Jayasinghe claimed that he hadpeeped was 6 feet 7 1/2 inches above the ground. The cross-sectionwas 51 1/2 inches. He stated that a person cannot see what ishappening inside the lounge if he stood very close to the window. It isso even if he stood two feet from the window. There was a flower bedoutside this window which was 9 feet in width. The flower bed wasbetween the window and the path.
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The main submissions of any substance by learned Counsel for therespondents about Mrs. Bandaranaike's evidence were that-
I
She was a belated witness. She did not inform the Police of thedetails of the insulting words until the 18th.
P 2 and P 2 A were belatedly handed over to the Police.
She did not mention the obscene and insulting words in Court
In the Magistrate's Court Mrs. Bandaranaike stated that she wasunab'e to state the words of the song as they were so filthy. She wasshown P 2 and P 2 A both by State Counsel and by Defence Counseland she stated that they contained the words of the song. Shetherefore adopted the contents of P 2 and P 2 A.
With regard to the submission of belatedness she was aware on the13th night that the Hatton and Norwood Police were informed of theincident. She herself informed the I.G.P about the incident on the14th morning and on the 15th as weik She made a brief statement tothe Police on the 15th and made a detailed statement to the C.I.D. onthe 18th when she for the first time referred to P 2 and P 2 A and thecontents of these documents
She explained that she was reluctant to mention the words to apolice officer. They were not words that could be stated to a malepolice officer by a woman. She had promptly intormed the police andthe I.G.P. in a general way about the incident. Considering the natureof the songs sung the learned Magistrate accepted her explanation asreasonable and truthful. We have no hesitation in accepting thelearned Magistrate's evaluation of the testimony of this witness.
The mam submissions against Kamala Ranatunga's evidence werethat:
According to the Examiner of Questioned Documents threeballpoint pens of different shades of blue ink were used to writethe words in P 2. But according to Kamala Ranatunga she usedonly a black coloured (ink) ballpoint pen.
The interpolations on the reverse of P 2 in different shades ofblue ink indicate that these documents were not madecontemporaneously but long after the event.
The tendering of P 2 and P 2 A to the police only on the 18thsupports the theory of subsequent fabrication.
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The discrepancy between the evidence of the Examiner ofQuestioned Documents and Kamala Ranatunga's evidence regardingthe number of ballpoint pens used in writing P 2 has to be criticallyexamined in the light of al1 the circumstances connected with thewriting on P 2 and P 2 A. Kamala stated, "Madam said that there werepaper and pens in her bag and asked me to write down as much of thesongs as possible." She wrote most of the words in a standingposition. Sometimes she went to the next room to speak to thesecurity officers. The singing went on for almost two hours. She wasconcentrating on the words sung.
When versions of two witnesses do not agree the trial judge has toconsider whether the discrepancy is due to dishonesty or to defectivememory or whether the witness' powers of observation were limited.In weighing the evidence the trial judge must take into considerationthe demeanour of the witness in the witness box. Was she trying tothe best of her ability to speak the truth ? The learned Magistrate hadto bear in mind that Kamala was giving evidence eight and a halfmonths after the incident. Could she be expected to remember everydetail of the incident ? She was unable to remember how many paperswere taken from the bag. She made these entries at night. Can she beexpected to remember precisely several months later what shade ofblue ink she used ? According to her recollection she used a blackcoloured (ink) ballpoint pen which was clearly an error. The learnedMagistrate considered all these circumstances and held that Kamalamade a mistake about the number of pens she used as all her attentionwas focussed on recording the words of the song and not on theimplements used for recording it. This mistake was trivial and did notdetract from the fact that Kamala Ranatunga had recorded the wordson P 2 and P 2 A contemporaneously with the singing.
Mrs. Bandaranaike and Kamala Ranatunga have explained the delayin handing P 2 and P 2 A to the Police. The Police were aware of theincident on the 13th night. Mrs. Bandaranaike informed theInspector-General about the indident on the 14th morning and againon the 15th. Being a woman she was too ashamed to give details ofthe obscene words to a male police officer. The learned Magistratehas accepted this explanation and rejected the suggestion of asubsequent fabrication of these documents. It was never suggested toMrs. Bandaranaike and Kamala Ranatunga under cross-examinationthat they had a motive for implicating the respondents. There was noteven a suggestion that they knew the respondents earlier In their
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evidence they did not state that any of the respondents sang theobscene songs. They did not set eyes on them at any stage during theincident. The Magistrate has considered ail the circumstances inwhich Kamala Ranatunga wrote the words in P 2 and P 2 A and hasaccepted her evidence. We see no reason for rejecting the learnedMagistrate's assessment of the evidence of Kamala Ranatunga.
Learned Counsel for the respondents submitted that the words usedin the song did not amount to an "insult" as contemplated in section484 of the Penal Code which states :
'484. Whoever intentionally insUts and thereby givesprovocation to any person, intending or knowing it to belikely that such provocation will cause him to break thepublic peace, or to commit any other offence, shall bepunished with imprisonment of either description for aterm which may extend to two years, or with fine, orwith' both."
The verb "insult" according to the Oxford Dictionary means "toassail with scornful abuse or offensive disrespect; to offer indignityto : to affront, outrage." Whether words are insulting depend on avariety of circumstances, such as the context in which they wereuttered, the intention, the tone and the attitude of the person utteringthem, and the situation in which they were uttered. Whether words oracts are insulting is to be determined on the facts of each case.Similarly, whether the insult was intentional is also a question of fact tobe inferred from the tone, the manner in which the words are spokenand other circumstances.
Section 484 requires that the person insulting should intend toprovoke a person to commit a breach of the peace or other offence orknow it to be likely that such provocation will cause that person tobreak the public peace or commit any other offence
The mere forbearance of the person insulted and provoked fromcommitting a breach of the peace is insufficient to protect theoffender. The offfence depends on the provocation given and notupon the provocation felt. In Haniffa v. Packeer{3) per Basnayake, J. it
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was held that an offence under section 484 is committed where theinsult is provocative of a breach of the peace even where the personinsulted is not actually provoked or where he shows restraint:
It is not necessary that the person insulted should in fact beprovoked or yield to his resentment, because if it were so it wouldnot be an offence to insult a person who by virtue of his position inli*e exercises restraint or is too weak to retaliate. The law is notdesigned to enable those who do not respect law and order tooppress those who do. The section punishes insults which areprovocative of the breach of the peace, and their character is judgedby the standard of the ordinary reasonable man, holding themcriminal if they are ordinarily sufficient to arouse oassions andprovoke retaliation."
See Gours' Penal Law of India. 8th Edn. pp. 3662 – 3667 : Fraserv. Sinnaiya (4) and Jayasuriya v. Ratnayake (5).
Applying these principles to the present case there is no doubt thatwhoever sang the songs intentionally insulted and gave provocation toMrs. Bandaranaike, knowing it to be likely that such provocation willcause her to break the public peace, or to commit any other offence,an offence punishable under section 484 of the Penal Code.
The crucial question in this case is whether the respondents havebeen identified beyond reasonable doubt as members of an unlawfulassembly with the common object of intentionally insulting andthereby giving provocation to Mrs. Bandaranaike as stated in the firsttwo charges. It must be remembered that the six respondents wereonly some of the 10 to 12 persons who came to the GlencairnBungalow on the 13th night.
The only witnesses who claimed to have identified the respondentsas being members of an unlawful assembly were Jayasinghe,Chandrasena and Tilak Liyanage. Jayasinghe stated that a male wassinging the song in lead while others joined in the refrain. Mostly it wasthe men who sang. He said he saw them singing in the sitting room.Under cross-examination it was established that he stood by the doorof his room during the singing and he conceded that from this positionhe could not see what was happening in the lounge and sitting roomwhere the singing was taking place. He then stated for the first timethat at a certain stage he went outside the bungalow and peeped
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through a window into the lounge. He did not mention this importantfact in examination in chief, nor had ne mentioned it in his statement tothe Hatton Police on the 13th night or in his detailed statement to the
I.D. on the 18th. In any event he did not state that he saw anyone,;ng when he peeped throurn the window. The learned Magistrate didnot consider these unsatisfactory features in Jayasinghe's evidencewhen evaluating his evidence. These defects taken together with theSurveyor's evidence that the window was 6 feet 71 /2 inches from theground and that no one close to it could have seen anyone inside thelounge prove that Jayasinghe's evidence of peeping through a windowwas pure invention.
If Jayasinghe could not see what was happening inside the loungeand sitting room from near his door then it was also impossible forChandrasena to have seen any occurrence in the lounge and sittingroom fron the balcony which was further away. It is probable that thelearned Magistrate did not analyse Chandrasena's evidence becauseof this glaring defect. Tilak Liyanage claimed that he heard therespondents sing. He admitted that he was in an upstairs room at thetime. The Magistrate correctly rejected his evidence.
To constitute an unlawful assembly there must be an assembly offive or more persons having a common object. The common objectmust be one of the six specified in section 138 of the Penal Code. It issettled law that mere presence of a person in an assembly does notmake him a member of an unlawful assembly unless it is shown that hehad done something or ohnitted to do something which would makehim a member of an unlawful assembly or unless being aware of factswhich render any assembly an unlawful assembly he intentionally joinsthat assembly, or continues in it.
What has to be proved against a person who is charged with theoffence of being a member of an unlawful assembly is that he was oneof the persons constituting the unlawful assembly and entertained thecommon unlawful object of the assembly. In a case where there areseveral accused the case against each accused must be consideredseparately. Omnibus evidence of a general character must be closelyscrutinised in order to eliminate all chances of false or mistakenimplication of innocent persons.
In the instant case there is no reliable evidence that Jayasinghe,Chandrasena and Liyanage saw the respondents sing. They were notin a position to see what was happening in the lounge and sitting
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room. There was no evidence, therefore, of the behaviour of eachmember of the assemb'y during the singing in order to infer that eachrespondent was actuated by a common unlawful object. It has notbeen established beyond reasonable doubt that all ten or twelvepersons in the lounge and sitting room were singing the insultingsongs It is possible that only some members of the assembly sang.The witnesses did not have that degree of familiarity with the voices ofthe respondents and others in the assembly to identify them by theirsinging The possibility that some of those in the assembly did notentertain the common object cannot be ruled out.
The learned Magistrate had not marshalled the evidence againsteach respondent separately so as to consider each case individually.He has also omitted to consider items of evidence favourable to someof the respondents on the vital question whether they entertained acommon object of intentionally insulting Mrs. Bandaranaike ; notablythe cases of the 4th and 3rd respondents – the wife and 18 year oldson of the 1 st respondent. It would not have been unusual for them tohave accompanied the 1st respondent with an innocent intention.There is also evidence that when the 1 st respondent was leaving thebungalow he pushed a jeep belonging to Mrs. Bandranaike and that hisson, the 3rd respondent, tried to pull him away saying, "Father, weneed not do this, enough of this singing, let us go." When the 1strespondent set upon his son and threatened him with a pistol the 4threspondent and the other ladies pulled them apart and bundledeveryone into their vehicles and saw them off the premises. It is also inevidence that when the 1 st respondent attempted to kick the door ofMrs. Bandaranaike's room the 6th respondent rushed up to him anddragged him away. If these respondents are excluded the charges onthe basis of an unlawful assembly fails. For reasons best known to theprosecution a charge of intentionally insulting Mrs. Bandaranaikeunder section 484 of the Penal Code based on a common intentionwas not included in the amended plaint.
It has been brought to our notice that the 1st respondent diedpending the conclusion of the hearing of this petition. The petitionagainst his acquittal by the Court of Appeal therefore abates.
While we have no doubt that the incident as aeposed to by Mrs.Bandaranaike took place arid her ev dence is tuthfu1 •* e owever findthat the prosecution had noi oeen abe to establish beyond resonabledoubt the identity of the persons who sang the songs or who
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entertained the common object ot intentionally insulting MrsBandaranaike. It is also a requirement of the law that an unlawfulassembly should consist of a minimum number of five persons. It hasnot been established beyond reasonable doubt that five or morepersons in the assembly entertained a common unlawful object.
The petition is refused. There will be no costs.
WANASUNDERA, J. – I agreeCADER, J. – I agree.
ppvtiOn refused.