083-NLR-NLR-V-34-BARTHOLEMEUSZ-v.-KULERATNE.pdf
MACDONELL C.J.—Bartholemeusz v. Kuleratne.
317 .
1932Present: Macdonell C.J.
BARTHOLEMEUSZ v. KULERATNE.
475—P. C. Kandy, 38,935.
Identification of accused—Witness in Court denies identification—Evidenceof person present at parade admissible.
Where, at an identification parade, the accused was identified by awitness and the latter in the course of his evidence stated that hewas not quite certain of the identity of the accused.
Held, that the evidence of a person who.was present at the paradewas admissible to establish that the accused was identified by thewitness.
.A.PPEAL from a conviction by the Police Magistrate of Kandy.
Ranawake, for accused-appellant.
Wendt. C. C., for Attorney-General.
December 23, 1932. Macdonell C.J.—
In this case the accused was charged, that being an officer of BogambaraPrison, Kandy, he suffered a parcel containing 200 cigars to be thrownor introduced into the prison, thereby contravening section 59 of Ordi-nance No. 16 of 1877.
The facts alleged are that the accused was seen buying certain cigarsfrom a boutique-keeper in Kandy and that the same indentical packetof cigars was found unopened under a saucepan in the gaol kitchen. Theidentity of the packet of cigars is sufficiently established. The accusedis a hospital orderly and works in the gaol kitchen. The circumstancesof the finding are to my thinking not quite satisfactory, raising a doubtin my mind of which the accused must have the benefit. The principalwitness says he saw the accused buying the cigars and seems to have in-formed the overseer that “ the parcel may probably be thrown over thewall” of the prison. The overseer told the gaoler and the gaoler detaileda guard to “ watch the movements of the accused ”. The principalwitness, as I have called him, found the cigars as stated under a saucepanin the gaol kitchen, and he says that the guard detailed to watch toldhim that “ a parcel had been thrown over the walls and that he waslooking for it ”, and he himself went forthwith to the kitchen and foundit. But the gaoler says, evidently repeating what the guard detailed to.watch told him, that the parcel was found “ outside the kitchenThere is thus a contradiction as to the actual finding. The principalwitness says he found it, and there is no suggestion that the guard detailedto watch had anything to do with the actual finding. But that guardsays as follows : “ I searched the kitchen. Later the principal witnessjoined in the search. I found the parcel in the kitchen.” It is difficultto regard this as a satisfactory story as to this all important point of thefinding. If it was found in the kitchen, then how did the guard detailed
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MACDONELL C.J.—Bartholemeusz v. Kuleratne.
to watch come to say to the gaoler that it was “ found outside thekitchen”? Yet another matter. Was this kitchen the ordinary gaolkitchen where various people in the gaol would have lawful duties, orwas it the hospital kitchen where accused as hospital orderly would gobut not perhaps the ordinary gaol official? On the whole there is adoubt in my mind as to the circumstances of the finding of this packetof cigars and if so it would not be safe to hold that the accused “ intro-duced ” them. It is a very suspicious case, certainly, but I doubt thatthe evidence is so satisfactory that on it the accused ought to be convicted.The appeal will be allowed then and the conviction set aside.
There is however, a point of law in this case which calls for decision.The seller to accused of the cigars was shown the parcel and identifiedit and its contents as what he had sold. An identification parade ofseventeen prison officials including the accused was thereafter held.The cigar seller says in evidence : “ At an identification parade I pointedout the man to whom I sold the cigars ”. The Superintendent of the gaolsays in evidence : “ The cigar seller pointed out this accused to me asthe person who had bought the cigars. He was perfectly certain it wasthis accused to whom he sold the cigars”. Pausing at this point, onemay remark that here there was evidence, undoubtedly admissible,that the man to whom the cigars had been sold was the accused and noother. The cigar seller says he pointed out the man to whom he soldthem, and the Superintendent in his evidence makes it definite that theman so pointed out was the accused. But in giving his evidence thecigar seller went on to say : “ The man to whom I sold the cigars is notin Court. The man whom I pointed out to the Superintendent, he toois not here (witness rolls his eyes all over the Court but does not lookat accused . . . .). The man whom I pointed out is like theaccused. I cannot say whether it is this accused ”. It was argued thatas the cigar seller had gone back on his previous evidence andhad in the Police Court given evidence to show that the man to whomhe sold cigars was hot the accused, there was no evidence that it was theaccused to whom the cigars were sold, and that consequently the evidenceof the cigar seller must be entirely disregarded in accordance with thedecision in Rex v. Silva In that case it was held that a statement madeby a witness to a Police Officer and afterwards denied by that witness atthe trial, could not be used as substantive evidence of the facts statedagainst the accused. But on the facts of the present case it can easilybe distinguished from Rex v. Silva (supra). In the Police Court thecigar seller admitted that he did point out the man to whom he sold thecigars. Other evidence was given to show the identity of that man.The evidence of the Superintendent shows that the- man was theaccused. It is quite true that the cigar seller in Court did not say thatthe accused was the man whom he pointed out or that he was the manto whom he had sold cigars, and his admission could not be used forthat purpose. But it could be used to show that on a certain occasionhe did identify a particular man as being the person to whom he soldcigars. That is beyond question since he said‘those words in evidencebefore the Magistrate. Who was the man whom he pointed out ? That
1 30 -V. L. R. 103.
JAYEWARDENE A.J.—Herath v. Rajapakse.
319
fact can be established by the evidence of any one present at theidentification parade and it was established by the evidence of theSuperintendent. I think the facts in this case are quite sufficient todistinguish it from Rex v. Silva (supra), and the evidence of the cigarseller did, when taken with that of the Superintendent, go to prove thatthe man to whom he sold cigars was the accused and is clearly admissiblefor that purpose.
For the reasons I have stated above, I do not think the evidence quitesufficiently satisfactory to justify the conviction which must thereforebe set aside.
Set aside.