C. M. PERERA and 12 others, Appellants, and THE STATE Respondent

047-NLR-NLR-V-77-C.-M.-PERERA-and-12-others-Appellants-and-THE-STATE-Respondent.pdf


224
Perera v. The Stale
1974 Present : Walgampaya, J., Ismail, J., and Vythialingam, J-C. M. PERERA and 12 others, Appellants, and THE STATE,
Respondent
Appeals Nos. 121-127/72, with Applications 137-143S. C. 173/71—M. C. Colombo/ 69827
Criminal procedure—Identification parade—Proper procedure that shouldbe adopted.
Eleven prison officers of Welikade prison were suspects in thecommission of the offence of causing the death of a prisoner in thesame prison on 22.9.69. On receipt of various B reports from thePolice, the Magistrate of the area recorded the statements of certain
WALGAMPAYA, J.—Perera v. The State
225
■witnesses on 24.9.69. At an identification parade held on 9.10.69.fifty-three of the prison officers and twenty-three persons from thepublic were all lined up in a room in the well of the Court, andthe identifying witnesses were called up one by one to point outthe various persons who committed various acts of assault on thedeceased.
Before the three identifying witnesses were questioned, they werereminded by the Magistrate of the contents of the statements madeby them on 24.9.69.
Held, that with 53 prison officers in the parade and only 23 personsfrom the public, the parade was not properly constituted. Althoughthe 53 prison officers were not all suspects, still it was evidentthat the ratio of one outsider to two prison officers was inappropriateand unfair. The proper procedure that the Magistrate should haveadopted was—
that he should have held several parades in conformity with
the practice followed in similar circumstances ;
to have asked the particular witnesses to identify any suspect
if he was in the parade ;
if a witness pointed out any person, then only should the
Magistrate have asked the witness whether that accused whomhe pointed out did anything, and
if so, the details of what he did.
.A.PPEALS against certain convictions at a trial before theSupreme Court.
E. Chitty, with C. Chandrahasan, Jayakumar and C. MotilalNehru (assigned), for the 1st to 4th accused-appellants.
R. S. R. Coomaraswamy, with T. Joganathan, C. Chandra-hasan, E. R. S. R. Coomaraswamy (Jnr.) and C. Motilal Nehru(assigned), for the 8th, 9th and 10 accused-appellants.
T. D. Bandaranayake, Senior State Counsel, for the Attorney-General.
Cur. adv. vult.
May 23, 1974. Walgampaya, J.—
The events that preceded the filing of this action in theMagistrate’s Court, and the sequel thereto by an indictment filedin the Supreme Court, were shortly as follows : —
In September 1969, when the prosecution witness Kuttilan wasChief Jailor at the Welikade Prisons, the 3rd accused VernonFernando, a jailor, was the next most senior officer, the 4th and5th accused were jailors, the 1st, 2nd and 7th to 13th accusedwere guards at the same prisons, and the 6th accused wasoverseer.
226
WALG AM PAY A, J.—Perera v. The State
The deceased Dissanayake was a prisoner at the Welikadejail. He had a case pending against him in the Kalmunai Courts,and he had cited two fellow prisoners of his, Hemachandra andRatnasiri, as witnesses. All three of them were provided withan escort party to Batticaloa. That escort took the three prisonersxo Batticaloa and a new escort party took the prisoners toKalmunai, and on the return journey to Colombo on the 20thof September, 1969.
Kuttilan received information, probably from the Maho Police,,that the three persons referred to earlier, while being escortedby train to Colombo, had assaulted the escort party and thedeceased had jumped off the train. Hemachandra and Ratnasiriwere handed over to the Maho Police as the injured personsin the escort party had got warded at the Maho Hospital.
Hemachandra and Ratnasiri were brought back to Welikadejail under prison escort on 21.9.1969. The deceased was arrestedon 22.9.1969, and a prison escort was sent from Welikade jailto bring him by prison van. On that day the 1st and 2nd accusedhad to do escort duty on the orders of Kuttilan who said thatvery probably the 3rd accused was in charge of the van. On thejourney from Maho to the Welikade jail an assault appears to-have taken place on Dissanayake inside the van, and stains ofblood and pieces of hair were found inside the van, although ithas not been established that it was the deceased’s blood ordeceased’s hair that was found in the van ; but it was not relevantat the Supreme Court trial to ascertain who assaulted thedeceased in the prison van.
The matters that became relevant at the Supreme Court trialwere as to what happened after Dissanayake was handed overto the custody of the prison officials who were in charge of theadmissions of prisoners. That was at 7.20 p.m. on 22nd September,,according to document P22.
The original indictment charged all thirteen accused with themurder of Dissanayake between Maho and Welikade on therelevant date. That indictment was amended and in the resultthe accused were charged with the murder of Dissanayake inthe Welikade jail. Therefore, what happened inside the jailafter the admission of Dissanayake became a fact in issue. Theprosecution therefore very correctly focussed its attention on 'the acts of assault on Dissanayake after his admission, andin the process eliminated the possibility of any injuries havingbeen caused on Dissanayake by a fall from the train, or anassault in the van contributing to the cause of death or resultingin death.
WALGAMPAYA, J.—Perera v. The State
227
The prosecution witness Bastian in his evidence has spokento an assault on Dissanayake in the admission room at point Hin the sketch. The witness Hemachandra spoke of an assault onDissanayake in the corridor of the Basement cell, and the witnessGamini spoke of assaults on Dissanayake in the visit room.Gamini claimed to have seen the assault from the position hehad taken on a lavatory seat in a room on the second floor of‘ H1 ward. I shall later in this order analyse the evidence ofthese three witnesses in regard to the identification by them ofthe persons who they claim assaulted the deceased in the severalplaces referred to earlier.
Shortly after mid-night on the 22nd of September, the Prisondoctor, Appuhamy, was sent for, and at 1.30 a.m. on 23rdSeptember one of the prison officers opened the cell door ofDissanayake. The doctor’s evidence was that there was no lightinside that cell, and that the corridors were dimly lit (by some' hurricane lanterns in the corner). He felt the pulse ofDissanayake and he found that there was stiffness in the hands.He did not test him for rigor mortis. The doctor was there insidethat cell only for 2 or 3 minutes and when he flashed his torchinside that cell he found that the floor was damp, but he did notinvestigate the cause for the dampness. It was dark inside thecell, except for a little light coming through the bars. The lampsthat he spoke of were kept on something at the end of thecorridor.
The same doctor examined the prisoner Hemachandra andasked him whether he had any complaints. His reply was thathe had pains in his chest, and on the doctor’s orders the prisonerwas removed to the prison hospital. Hemachandra had made noconplaint to the doctor of an assault on him by any one or moreprison officials.
The investigations in regard to the death of the deceasedcommenced immediately under the direction of Mr. Gaffoor, whowas the Officer-in-Charge, of the Borella Police. It was he who-has submitted various B reports to the Magistrate of the area,'who visited the scene at about noon on the 24th of September.The Magistrate went to the Basement cell section, to the lastcell on the right-hand side. He saw some circular marks drawnin chalk inside the cell. He was also shown some discolouredpatch on the right wall of the cell. It was dark inside the cell andhe examined the inside with the aid of a torch. At that stage,there were no suspects. He was informed that there were-prisoners who claimed to have some knowledge of the facts, and
22S
WALGAMPA YA, J.—Percra v. The State
that those prisoners were prepared to make statements to him.He then recorded the statements of the following witnesses,Alphonso, Gamini and Hemachandra.
The prisoner Alphonso was not available at the inquiry stagein the Magistrate’s Court, because he had committed suicide. Theother three prisoners referred to earlier had given evidence inthe Magistrate’s Court which evidence will be analysed later inthis order.
On 8.10.1969 a B report was filed in the Magistrate’s Courtunder Section 121 of the Criminal Procedure Code. Theapplication contained in that report was that an identificationparade may be held on 9.10.1969 either in Court or some otherpremises with all the suspects on remand custody, except jailorsFernando, Leelasena and Rajapakse, namely, the 3rd, 4th and5th accused respectively, together with all the prison officerswho were there present on duty and off duty, within the Welikadeprison on 22.9.1969 between 6 p.m. and mid-night.
The Magistrate made order that an identification parade beheld on 9.10.1969 in the Court premises of Maligakande. He madeorder that precautions should be taken to ensure that the suspectswho were to be placed in the parade should not be seen earlierby the identifying witnesses. His order was that the suspects bebrought to Court in a closed van under escort. He was not surewhether that order took in the other officers who were notsuspects at that time, but who were on duty and off duty on therelevant date between 6 p.m. and mid-night. So that, we do notknow with certainty how the latter category of prison officerscame to Court, but certainly it is clear from the evidence thatall these prison officials who were not suspects were kept outsidethe Magistrate’s Court premises in a closed van ; but, that was aplace different to where the 11 suspects were kept in a closed van.When the parade commenced, 53 of the prison officials and 23persons from the public were all lined up in the well of the Court,and witnesses were called up one by one to point out the variouspersons who committed various acts of assault on the deceased.
In considering the manner in which this identification paradewas held, the primary matter that strikes one is with 53 prisonofficers in the parade and only 23 persons from the public,whether the parade was properly constituted. The Manual forJudicial Officers which was printed at the Ceylon GovernmentPress in 1939, at page 33 thereof lays down certain guidelinesto Magistrates who hold parades of this type. At page 33, Section165 (b) (II) : “ The suspect shall never be presented to the
WALGAMPAYA, J.—Perera u. The State
229
witnesses alone. He shall be placed in a line consisting of five ormore persons of the same class as himself and -be given anopportunity of taking any position he likes in the line. ”
“ (III) The witnesses shall be presented singly and requestedto examine the line and state whether the man or men theyidentified are there. ”
Nowhere in the Criminal Procedure Code (which has sincebeen repealed by the Administration of Justice Law No. 44 of1973) is there any principle which applies to the holding ofidentification parades. Archbold on Criminal Pleading, Evidence& Practice, 38th Edition, Chapter 15, page 653, refers to a HomeOffice circular No. 9/1969, and states : “ (i) the object of anidentification parade is to make sure that the ability of thewitness to recognise the suspect has been fairly and adequatelytested, (ii) identification parades should be fair, and should beseen to be fair. Every precaution should be taken to see thatthey are so, and, in particular, to exclude any suspicion ofunfairness or risk of erroneous identification through thewitness’s attention being directed specially to the suspectedperson instead of equally to all the persons paraded. ”
“ (VIII) The suspect should be placed among persons (ifpracticable 8 or more)”
“ (IX) Occasionally all members of a group are possiblesuspects. This may happen where police officers are involved(e.g., an allegation concerning a police officer which can benarrowed down to a number of officers who were on duty at thetime and place in question.) In such circumstances, anidentification parade should not include more than two of thepossible suspects ; e.g. if there were 12 police officers on dutyat the time and place in question, there should be at least sixparades, each including ten officers who were not implicated •and not more than two who might have been ; twelve possiblesuspects should not be paraded together. ”
The Home Office circular No. 9/1969 had been prepared onthe basis of a memorandum by the Chief Officer of theMetropolitan Police in consultation with the Lord Chief Justice(Vide 6th Supplement to the 37th Edition of Archbold onPleadings, paragraph 1009).
That paragraph also refers to the undesirability of invitingwitnesses to identify accused persons for the first time whenthey are in the dock—(Rex v. Hunter1 (1969) Criminal LawReview 262, which was a decision of the Court of Criminal
*(1969) Criminal Law Review 262.
230
WAL GAMP A YA, J .—Perera v. The State
Appeal, and Rex v. Howick1 (1970), Criminal Law Review 403.)The latter case which was decided by the Court of Appeal,Criminal Division, held : “ It is usually unfair to ask a witnessto make an identification for the first time in Court because itis so easy for the witness to point to the defendant in the dock. ”
Although the 53 prison officers were not all suspects at thattime still it is evident that the ratio of one outsider to two prisonofficers was inappropriate and unfair. The chances of a memberof the public being pointed out was just 1 to 2. The situationlooks more unfair when one sees that the identifying witnesseswere persons who met the prisoners day in and day out, andif anyone of these witnesses had a grudge against any prisonofficer, he could well have pointed out that officer as havingcommitted some act of assault.
It is relevant at this stage to consider the procedure that wasadopted by the Magistrate who held the parade. As I saidbefore, 53 prison officers and 23 members of the public werelined up in a row in the well of the Court. The requirementthat all persons who were lined up had to be similarly dressedwas observed in this case, except that 3 or 4 of them were inshorts and the rest were presumably dressed in shirts and longtrousers. The 8th accused Peiris who was also known as KannadiPeiris was wearing glasses. There were two Counsel who werewatching the interests of all suspects. The Magistrate calledthe witnesses one by one and he put certain questions to themto point out the suspects. Those questions were presumablyput on the statements those witnesses had made to the Magistrateon the afternoon of 24.9.1969. When questioned : “ The reasonwhy you kept the 3rd, 4th and 5th accused out of the paradeis because they had been specifically named by the witnesses ? ”his answer was : “So I was informed. ”
The first identifying witness who was called was Bastian. Tohim the Magistrate put the question to point out the personwhom he referred to as Boxing Mahattaya in his statement, andBastian pointed out the 1st accused. When the Magistrate askedBastian to point out the person whom he referred to as KannadiPeiris, Bastian pointed out the 8th accused.
The Magistrate then asked Bastian to point out the personwho came into the visit room and washed his hands, and hepointed out the 2nd accused. The Magistrate then asked Bastianthe question :“ Did he point out Wimalasiri ? ” and Bastian
(1970) Criminal Law Review 403.
WALGAMPAYA, J.—Perera v. The State
23i
said that that was the person whom he saw about the place.Wimalasiri was the 9th accused. Bastian could not identifythe person who kicked the deceased.
The next identifying witness who was called into the Courtroom was Gamini. The Magistrate asked Gamini to point outthe person whom he saw assault the deceased in the visit room,and the witness pointed out the five persons, 13th, 9th, 1st, 10thand the 6th accused. Later the witness pointed out the 8thaccused. So that, according to witness Gamini he saw six personsassault the deceased in the visit room. The Magistrate then askedGamini to point out the person whom he saw pulling out thehair from the head of the deceased, and he pointed out the 1staccused. The Magistrate then asked Gamini to point out theperson who applied something on the head of the deceased, but.the answer to that question is not on record.
Witness Hemachandra was then brought into the Court room,and the Magistrate asked him to point out the person whom hesaw assaulting the deceased on the corridor of the Basementcell, and he pointed out the 1st, 7th and the 9th accused. TheMagistrate then asked witness Hemachandra to point out thepersons who brought the deceased to the Basement cell, andhe pointed out the 1st and 7th accused. The Magistrate thenasked Hemachandra to identify the persons who “ removed thebody of the deceased that night ” and he pointed out the 12th,.11th and the 10th accused.
It is our considered view that when the Magistrate used thestatements made by various witnesses to him on 24th September,and asked them to point out the various persons who did various-acts, he was in effect refreshing the memory of those witnessesin regard to what they had told him on the 24th of September.In our view, that process of questioning gave the identifyingwitnesses an opportunity of knowing what they had told theMagistrate on the 24th of September, 1969—especially as theinquiry in the Magistrate’s Court commenced on 26.10.69 andterminated on 22.11.71.
We are of the view that unless these particular witnesses hadphotographic memories it would have been very difficult forthem to remember what they had told the Magistrate earlier.The questions put by the Magistrate to those identifyingwitnesses were inappropriate for the reason that those questionswould have enabled them to know what they had told theMagistrate on 24.9.1969 and consequently they would have beenreluctant to resile from the position they had taken earlier.
232
WALGAMPAYA, J.—Pet-era v. The State
The procedure adopted by the Magistrate was in our viewquite unfair by the accused who were tried for murder. It isour view that the proper procedure that the Magistrate shouldhave adopted was : —
that he should have held several parades as indicated
earlier in this order ;
to have asked the particular witnesses to identify any
suspect if he was in the parade ;
if a witness pointed out any person, then only should
the Magistrate have asked the witness whether that
accused whom he pointed out did anything, and
if so, the details of what he did.
The failure on the part of the Magistrate to have adopted theprocedure referred to a while ago constitutes a seriousirregularity which has vitiated the purpose of the parade.
Dr. Chandra Amarasekera, Judicial Medical Officer, Colombo,held a post mortem examination on the deceased on 23.9.1969,commencing at 2.45 p.m. at the Medico Legal Morgue, Colombo.The body was that of a well nourished male person, 5 feet 10inches tall, and about 27 years of age. The doctor bias spokento the numerous injuries on the deceased man, some of whichcould have been caused on the 20th of September, possibly whenthe man jumped off the train, and some were more recentinjuries caused within a period of about 24 hours prior to thepost mortem examination.
The fatal injury was a depressed fracture of the 2nd rib, tornpericardium, bruised heart, bruised aorta, and bruised pulmonaryartery. The doctor’s view was that a very great degree ofexternal force was necessary to cause that fatal injury. Hedescribed the manner in which that fatal injury could havebeen caused as if a vehicle had run over him, or by stampingon the chest with or without shoes, or by jumping on the body.The doctor further said that either kicking, stamping, or blowswith the fist or baton, could have caused the fatal injury. Hecould have cried out for two or three minutes after receivingthe fracture, and there would have been involuntary groaning,the doctor said. There would have been a certain amount ofplucking of hair from the head of the deceased. All the injurieswere suggestive of the deceased having been beaten by a numberof persons. The deceased would have had his last solid mealearlier than 2 or 3 hours prior to his death, and the doctor’sview was that no medical or surgical skill could have savedthe life of the deceased after he received the fatal injury. He
WALGAMPAYA, J.—Perera v. The Slati
233
was of the view that the deceased had come by his death withina period of 14 to 18 hours prior to 2 p.m. on 23.9.1969. He placeda maximum limit of 18 hours and said that death could haveoccurred between 8 p.m. and mid-night on 22.9.1969. In theresult, it must necessarily follow that the fatal injury wascaused probably in the visit room.
The documents produced in the case which were not challengedby the Prosecution, prove that the keys of the Basement cellwere removed by Sugathadasa at 8.10 p.m. on 22nd September,and returned at 8.35 p.m.—25 minutes later. In the light of themedical evidence that after receiving the fatal injury thedeceased would not have been able to be in a standing posturefor a long time and he would have collapsed within a short time,one can draw the necessary inference that the deceased waspulled along or dragged to the Basement cell.
It is relevant at this stage to consider the evidence of witnessHemachandra who was in the train when the deceased jumpedoff the train somewhere at Maho. On the relevant day at about5.30 or 6 p.m. Hemachandra was put into his cell. Sometime laterthe deceased was also brought to the Basement cell. According toHemachandra, the deceased was dragged by the 1st, 7th, 8th andthe 9th accused, and both of them were assaulted, but tc Hr.Appuhamy, Hemachandra had only complained of pain and notof an assault. We are of the view that the medical evidencereferred to earlier negatives Hemachandra’s evidence of anassault on the deceased in the corridor of the Basement Cell. Themore so, because the place was very dimly lit and identificationof persons, if any, assaulting would not necessarily be accurate.
The evidence of Bastian is subject to numerous infirmities. Inhis evidence the Magistrate has said that Bastian wanted to makea statement to him, but he asked Bastian to make the statementto the inquiring officer, but Bastian in his evidence in theMagistrate’s Court has said that the first person to whom hemade his statement was to the Magistrate, and that he signed it.Later he said that he went up to the Magistrate and made astatement, but the Magistrate did not record the statement. Inthat state of Bastian’s evidence one cannot say with certaintythat Bastian was a reliable witness.
When one analyses the evidence of Gamini, the primary matterto be considered is whether, when he was standing on thelavatory seat on the 2nd floor of H ward, he could have seenwith certainty what was happening in the visit room at point Fin the sketch. According to the key to the sketch the distancefrom the H ward to the visit room outer wall is 21 feet. There is
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WALGAM PAYA, J.- Per era v. The State
no indication in the key to the sketch in regard to the height of■the 2nd floor of H ward, but certainly taking into considerationthe fact that Gamini claims to have seen into the visit room bystanding on the lavatory seat in the 2nd floor, it would bereasonable to say that his eyes were at a distance of at least 30feet from the wire mesh window in the visit room.
We hesitate to say that he could have identified persons clearlyfrom that distance, specially in view of the fact that he had toidentify persons (who he said assaulted the deceased) throughthe wire mesh window. According to him at the time he watchedfor more than one hour, and the accused whom he saw assaultingwere the 1st, 3rd, 4th, 5th, 6th, 8th, 9th, 10th and the 13th accused.In giving details of that he said that he could not say what the1st accused was wearing, but he saw the 1st accused striking thedeceased. He saw the 3rd, 4th, 5th and the 6th accused strikingthe deceased with clubs. He saw the 8th accused bringingsomething in a vessel and applying on the head of the deceased.He saw the 1st and 9th accused pulling out hairs from the headand the chest of the deceased. He saw the 13th accused strikingthe deceased.
One infirmity in the evidence of Gamini is that, of the personshe claimed to have identified, it has been proved affirmativelythat the 5th accused was off duty on the day in question, andat the close of the trial, the 5th, 6th and the 13th accused havebeen acquitted, and another infirmity is that he told theMagistrate he saw some persons pulling out the hair of thedeceased, but he had not mentioned the names of any of thosepersons to the Magistrate. However, at the inquiry he improvedon his story and said he saw the 1st and the 9th accused pullingout hairs.
Gamini in his evidence at the inquiry has stated that he heardthe deceased shouting out not to apply chillie powder, and thatit was smarting, but there is no evidence at all of the applicationof chillie powder, or presence of chillie powder in the samplessent to the Government Analyst according to the evidence andreport by the Analyst.
Learned Counsel who appeared for the 1st to the 4th accused,and the 8th, 9th and the 10th accused, has stressed very stronglythat in the state of the evidence led for the prosecution in regardto identification that there should have been very clear directionsby the learned Commissioner of Assizes, not only regarding theeffect of the evidence of these three witnesses, namely, Gamini.Bastian, and Hemachandra, and although the evidence of the firsttwo witnesses was not accepted in regard to certain accused,then the only evidence against the 8th accused was the evidence
WALGAMPAYA, J. Perera v. The State
235
of Bastian, and there should have been very clear direction as tohow that evidence should have been approached, for it wasBastian alone who had referred to the 8th accused, as havingassaulted the deceased. It was also submitted by learned DefenceCounsel that when the prosecution alleged the different acts ofassault on the deceased at different places, namely, the admissionroom, the visit room, and the corridor in the Basement cell, thereshould have been very cogent evidence of common intention forall accused who were convicted to have been found to haveshared a common intention.
In 69 N.L.R. page 166, Manicavasagar J., has held :
“ In order to sustain the charge based on common intentionit is essential that both accused persons must have partici-pated in the offence, in the sense that they must be physicallypresent at or about the scene of offence. ”
The trial in the Assize Court had commenced on 21.8.1972 andthe verdict of the Jury was given on 7.11.1972. The summing upof the learned Commissioner had lasted nine hours. After sucha lengthy summing up, one does not see how the Jury could havereasonably and properly returned the verdict in forty minutes.It is not at all clear from their verdict, in regard to the basis onwhich they had arrived at their verdict.
Learned Defence Counsel has further submitted that certainpassages in the summing up are conflicting and highly prejudi-cial to the 8th, 9th and the 10th accused. It certainly appearsfrom the summing up that there had been a strong emphasis inregard to the participation of those accused in the commissionof some offence, whether it was murder, culpable homicide notamounting to murder, or grievous hurt. It does appear to us thatwhen, in the latter part of the summing up the 8th, 9th and 10thaccused are stressed and grouped together, the Jury would havehad it prominent in their minds, and probably thereafter lookedfor other accused. If it happened that way, and there is a strongpossibility that was so in view of the fact that the Jury returnedtheir verdict in forty minutes, then it is quite clear that thatverdict was unreasonable and it would be unsafe to allow it tostand.
For all these reasons I am of the view that the convictions ofthe accused for simple hurt and the sentences should be setaside and the accused are acquitted and discharged.
Ismail, J.—I agree.
Vythialingam, J.—I agree.
Accused acquitted.