Dharmasena v. The State
Present.: Wijayatilake, J., Rajaratnam, J. and
D. M. DHARMASENA, Appellant,and
THE STATE, Respondent
S.C. 6/71—D. C. (Bribery) Kandy, B/2/70
Criminal procedure—Trial by District Court—Duty of District Judge torecord verdict within 24 hours after closure of defence—Delay inrecording verdict—Curable irregularity if prejudice has not beencaused—Computation of time as to the 24-hour period—Whetheran intervening dies non should be included or excluded—CriminalProcedure Code, ss. 214 (1), 294, 339, 425—Administration of JusticeLaw, No. 44 of 1973, s. 186 (2)— Interpretation Ordinance, s. 8 (3).—Holidays Ordinance (Cap. 177)—Holidays Act, No. 17 of 1965, ss.3, 6.
iBribery Act—Charges under ss. 16, 19.
Section 214 (1) of the Criminal Procedure Code reads a%follows : —
“ When the cases for the prosecution and defence are conclu-ded the District Judge shall forthwith or within not more
than twenty-four hours record a verdict of acquittal orconviction. ”
Held : (by Wijayatilake, J., and Rajaratnam, J.) That the failureof a District Judge to record a verdict of conviction within 24 hoursafter the conclusion of the defence will not vitiate the convictionunless it has occasioned a failure of justice. (In the present casethe two Judges took conflicting views on the question whetherprejudice was caused to the accused-appellant by the delay in therecording of the verdict.)
Per Wijayatilake, J.—Section 294 of the Criminal ProcedureCode which provides that no proceeding of any criminal Court andno inquiry shall be invalid by reason of its being held on a publicholiday is an absolute enactment and supersedes section 8 (.3) ofthe Interpretation Ordinance, the Holidays Ordinance and theHolidays Act, No. 17 of 1965. Accordingly, an intervening Poya dayalthough it is a dies non, should not be excluded in the computationof the 24 hours mentioned in section 214 (1) of the CriminalProcedure Code.
Per Wijesundera, J.—An intervening Poya day, being a dies non,should be excluded in computing the period of 24 hours. Section294, .read with section 214 (1), of the Criminal Procedure Code doesnot compel the Court to deliver the verdict on a dies non.
Cases referred to :
King v. Fernando, 2 Bal. Reps. 46.
Kulantaivelpillai v. Marikar, 20 N.L.R. 471.
Gunawardene v. Pedrick Singho. 5 C.W.R. 310.
Jayawardene v. Tiruchelvam, 71 N.L.R. 134.
^PPEAL from a judgment of the District Court (Bribery),Kandy.
E. Chitty, Q.C., with G. E. Chitty (jnr.), for the accused-appellant.
T. N. Wickremasinghe, State Counsel, for the Attorney-General.
Cur. adv. vult.
WIJAYATTLAKJS, J.—Dharmaaena v. The State
March 27, 1974. Wijayatilake, J.
In this case the accused-appellant, who is an Excise Guard,was indicted with having on the 19th January, 1970, accepteda gratification of Rs. 50 from one Seeladasa as an inducementor reward for abstaining from performing an official act andthereby committed offences punishable under sections 19 and 16of the Bribery Act. He was convicted on both counts.
Mr. Chitty, learned counsel for the accused-appellant, sub-mits that the verdict returned by the learned District Judge isillegal as it did not comply with section 214 (1) of the CriminalProcedure Code which requires the District Judge to forthwithor within not more than 24 hours to record his verdict. He hasalso drawn our attention to the recognition of this requirementin the Administration of Justice Law, No. 44 of 1973, at section186 (2).
The trial in this case was concluded at 12.40 p.m. on 14.7.71which was a pre-poya day. The District Judge has recorded asfollows : —
“ Under the circumstances today’s proceedings and thedocuments cannot be attended to today. Under section 214 itis incumbent on me, since I have heard this case as Addi-tional District Judge, to forthwith or within not more than24 hours record a verdict of acquittal or conviction. Sincetomorrow is a dies non and Poya day holiday, I will not beable to do so. I will therefore give my verdict on 16.7.71 assoon as I come on the Bench. I fix the time as 10 a.m. ”
Thereafter on 16.7.71 at 10 a m. he had proceeded to deliver hisjudgment and convict the accused.
In the course of the argument we drew the attention of counselto section 8 (3) of the Interpretation Ordinance and to section294 of the Criminal Procedure Code. Under the former where alimited time not exceeding six days from any date or from thehappening of any event is appointed or allowed by any writtenlaw for the doing of the act or the taking of any proceedings ina court or office every intervening Sunday or public holidayshall be excluded from the computation of such time. The ques-tion therefore arises as to whether 15th July being a Poya day(during which period all Poya days were recognised as holidaysin lieu of Sundays) this date should be excluded in thecomputation of the 24 hours as contemplated under section 214.Under section 294 of the Criminal Procedure Code it isprovided that no proceeding of any criminal Court and noinquiry shall be invalid by reason of its being held on a Sundayor public holiday. Here too Sunday has to be read as Poya day.In this context learned State Counsel has drawn our attention
WUAYATTLAKJE, J.—Dharmaeena v. The State
to the Holidays.Act, No. 17 of 1965, which under section 3 pro-vides that every Poya day shall be a public holiday and undersection 6 that every public holiday shall be dies non and shallbe kept as a holiday ; so that he contends that 15th of July beinga dies non it has to be excluded in the computation of the 24hours. In the light of these provisions the question does arisewhether section 294 of the Criminal Procedure Code which Ihave referred to supersedes these provisions. It has to be notedfor instance, when a murder is reported, a Magistrate can proceedto hold the inquest and non-summary proceedings promptlywhether it be a Sunday or public holiday. Could it be said thatthe proceedings at any such inquest or inquiry would be nulland void as the date on which it is held is a dies non ?
Mr. Chitty has drawn our attention to Craies on Statute law,(6th Edition page 262) and also Maxwell on Interpretation ofStatutes (12th Edition page 322) with regard to absolute anddirectory enactments.
In my opinion, section 294 is an absolute enactment referringto the proceedings of our criminal courts and in the light of theillustration I have given with regard to murder inquiries it isquite clear that this section supersedes section 8 (3) of the Inter-pretation Ordinance and the Holidays Ordinance (Chapter 177)and Holidays Act, No. 17 of 1965, and it was open to the DistrictJudge to pronounce his verdict on the 15th July, although it wasPoya day.
The question therefore arises as to whether the verdict enteredby the learned District Judge is invalid. Learned State Counselrelie's on the judgment of King v. Fernando, 2 BalasinghamReports 46, where it was held that the failure of a District Judgeto record a verdict of acquittal or conviction within 24 hoursafter conclusion of trial as required by section 214 of the Crimi-nal Procedure Code, will not vitiate a verdict unless it hasoccasioned a failure of justice. Wendt, J. observes that section214 is undeniably a salutary enactment, in requiring the Judgeto record his decision when the evidence is still fresh in hismemory and delay in doing so may be an element in inducinga Court of Appeal to hold that the Judge’s conviction of theprisoner’s guilt was not a strong or definite one, but it cannot begiven greater effect to. “ It is most an irregularity in proceedings
during trial, such as section 425 contemplates, which will
not render the judgment of a competent Court liable to bereversed or altered on appeal unless it has occasioned a failureof justice.” With great respect, I agree with this view thatit is only an irregularity and not an illegality. Samerawick-.rame, J. in Jayawardene v. Tiruchelvam, 71 N.L.R. 134, did
WIJAYATTLAKE, J.—Dharmaama v. The State
not deal with the effect of section 294 or the CriminalProcedure Code when discussing the Holidays Act inrelation to section 339 of the Criminal Procedure Code. Thejudgment of Bertram, C. J. in Kulantaivelpillai v. Marikar,20 N.L.R. 471, pertains to a question of civil procedureThe question therefore arises as to whether in theinstant case there has been a failure of justice as the DistrictJudge did not avail himself of the opportunity afforded undersection 294.
Mr. Chitty has stressed the fact that the prosecution has ledthe evidence of Weeratunga, the father of Seeladasa, in regard tothe act of solicitation by the accused. In fact the Crown hascalled him at the very commencement of the trial as one ofthe principal witnesses, with a view to providing the backgroundof this transaction. No doubt, there is no charge as such ofsolicitation against the accused but it cannot be gainsaid thatstrong reliance has been placed on his evidence to show the partplayed by the accused. When this witness was called his evidencewas so unsatisfactory that even the learned Crown Counsel wascompelled to admonish him and the learned Judge too has noted' several times as to the unsatisfactory manner in which thewitness was giving evidence. In this judgment the District Judgestates that “ he has seldom come across a more unsuitable open-ing witness. ” However, he states that he must reiterate thatWeeratunga was neither a fool nor a knave but that he wasjust a thoroughly unsatisfactory witness in that he genuinely didnot remember the incidents after his premises were raided bythe Excise and which led to the Bribery Department officerscoming to the scene. Thereafter the District Judge has sought toconvict the accused, particularly, on the evidence of Weeratunga’sson Seeladasa and Police Sergeant Abeyratne of the BriberyCommissioner’s Department. It is significant that the allegedbribe had been given to the accused not by Seeladasa direct butthrough Sergeant Abeyratne when they were having tea at theTaj Mahal Hotel. Why Seeladasa himself did not give the moneydirect to the accused and why the accused accepted the moneyfrom Abeyratne a complete stranger is an important question.This transaction, as the District Judge observes, is a “ trap case nand being a trap case Abeyratne was in fact acting as a decoy sothat in assessing his evidence one has to do so with extremecaution, particularly, as an earlier trap on the 3rd of July hadfailed as the accused had not turned up. Furthermore, at the-stage the money was given Abeyratne was seated to the rightof the accused and the money was found ultimately in the right
WTJAYATILAKE, J.—Dharmasena v. The State
hand trouser pocket of the accused and it is also in evidencethe five Rs. 10 notes were found separately from the purse whichwas in the same pocket.
The District Judge in the course of his judgment has observedthat “ it is quite clear the accused in accepting the Rs. 50 madeWeeratunga believe that the bribe would absolve the membersof his family from prosecution under the Excise Ordinance andthat they would be protected from punishment by his interven-tion ”. So that it would appear that despite the unsatisfactorynature of Weeratunga’s evidence he is seeking to place relianceon the same. In considering the defence of the accused is it likelythat it was Seeladasa who had introduced the money into theaccused’s pockets ? The District Judge states that the alternativeposition as set out by the defence is unacceptable in view of thesummary of the facts attached to the indictment. Mr. Chittyvery strenuously submits that it was highly irregular for theDistrict Judge to rely on the summary to fill the gaps, if anyin the case for the prosecution. I entirely agree that this proce-dure is quite irregular. If we approve of this procedure it canopen up questionable avenues which will ultimately result inan erosion of our Criminal Law and procedure and nullifyingthe provisions of the Evidence Ordinance.
It is noted at page 46 of the brief (marginal 38) “ the CrownCounsel wished it to be noted that the witness, Sirimawathie,the wife of Weeratunga and the mother of this witness, (Guna-ratna, a son of Weeratunga) whose name had transpired ashaving communicated something to this witness, is not presentin Court today. There is a medical certificate sent to explainher absence ”. However, I find that Sirimawathie has not beencalled as a witness and the communication referred to by StateCounsel has not been proved.
Mr. Chitty submits that the learned District Judge appears tohave entertained a substantial doubt at the stage he reservedjudgment, else it is not likely that he would have made theelaborate note with regard to the requirement under section 214of the Criminal Procedure Code. He could very well have enteredthe verdict and given his reasons later. On a careful considera-tion of what transpired in the case I am of the view that there ismerit in this submission.
Learned State Counsel has submitted that even ifWeeratunga’s evidence is eliminated the other evidence in thecase is sufficiently cogent to sustain the conviction. However,even with regard to the acceptance of the gratification there canbe little doubt that the learned Judge has been influenced by theversion of Weeratunga and the summary of facts annexed to the
RAJARATNAM, J.—Dharmasena v. The State
indictment; so that in a case of this nature I do not think itcorrect for us to speculate when the indications are (as referredto above) that the Judge has taken into account the backgroundin which Weeratunga played the prominent role. If the accusedwas charged with solicitation on the basis of Weeratunga’s evi-dence, in view of the worthless character of his evidence, therecan be little doubt that the District Judge would haveacquitted him on such a charge. This is an aspect of the casewhich we have to keep in mind in considering the verdict of theDistrict Judge in respect of the other charges. The question doesarise whether the whole atmosphere of the trial has been sotainted that the trial Judge may have been influenced by thesematters I have referred to.
In the light of these illegalities, irregularities and infirmities,in my view, particularly, Weeratunga being the head of thehousehold this is a case in which we should interfere.
With respect I am unable to agree with my brothers Rajarat-nam, J. and Wijesundera, J. that this appeal should be dismissed.I accordingly set aside the conviction and sentence and send thecase back for a trial de novo.
I have had the opportunity to read the judgments of mybrothers. With great respect I have not been able to agree withmy brother Wijayatilake that in the circumstances of this casethere should be a fresh trial. I find it difficult to form theview that the learned trial Judge could not have arrived at hisfinding that the case was proved beyond reasonable doubt.
The accused had not given evidence in this case. InspectorPerera of the C.I.D. found the marked five ten rupee notes inthe trouser pocket of the accused. The accused was wearing abush shirt which presumbly hung over the opening of the trouserpocket. These were the circumstances at the final stage of thetransaction. Another circumstance was that the accused was atthe Taj Mahal Hotel away from the Courts in the company ofSergeant Abeyratne and Seeladasa the brother of the accused inthe excise case. At the stage earlier to the said final stage waswhat transpired in the hotel testified to by Seeladasa andSergeant Abeyratne. If their testimony was believed, the accusedis fully implicated in the offence with which he was charged.There was the acceptance and also the circumstances surroundingthe acceptance. Any weakness in the evidence of Weeratungais remedied by the subsequent transaction according to thetestimony of Seeladasa and Sergeant Abeyratne if believed. Thepart played by the accused in this transaction according to their
WIJESUNDERA, J.—Dharmaecna v. The State
testimony proves the charge against the accused. The circums-tantial evidence arising from the oral testimony of SergeantAbeyratne, Seeladasa and Inspector Perera is strong and in theabsence of an explanation by the accused, I am of the view thatthe charges were proved against him. I do not think that thepossibility of introducing a bundle of five ten rupee, notes into thetrouser pocket of the accused is a reasonable possibility. The.accused evidently was in the company of Seeladasa and SergeantAbeyratne and the defence has not suggested how or why theaccused got into the company of these two persons at the TajMahal Hotel. All the circumstances tend to support the testimonyof Sergeant Abeyratne and Seeladasa and also the finding of themoney in the trouser pocket of the accused. I have consideredall the questions put in cross-examination and also the sugges-tions. Neither the questions nor the suggestions have beenhelpful to me to form a view different from the views of thetrial Judge with regard to the testimony of the presecutionwitnesses.
With regard to the delay in delivering the judgment, I am ofthe view that it was an irregularity and whatever delay therewas, it was not such that caused any prejudice to the accused.The reference in the judgment to certain items in the summaryof facts again has not caused any prejudice.
I therefore dismiss the appeal.
I have read the judgement of Wijayatilake, J. but with respectI take a different view.
The accused-appellant appeals against his conviction andsentence for two offences under the Bribery Act.
Mr. Chitty appearing for him submitted that the convictionsof the accused-appellant should be quashed because—(1) therewas non-compliance with section 214 of the Criminal ProcedureCode, (2) the learned trial Judge has : (a) taken into considera-tion the statements in the summary of facts as substantiveevidence, and (b) acted upon the evidence of one Weeratungewho was a very unsatisfactory witness.
The case went to trial on 18.6.1971 and to suit the convenienceof Counsel, it was continued on 14.7.1971 which was a Pre-poyaday. On that day further evidence was led and the prosecutionclosed its case. The defence called no evidence but addressed thfr
WIJESUNDEBA, J.—Dharmaeena v. The State
•Court and the proceedings terminated at 12.40 p.m. At the end•of the proceedings the learned trial Judge mad£ the following'observation: —
“It is 12.40 p.m.—Pre poya day. Office closes at 12.30 pm.Under the circumstances today’s proceedings and the docu-ments cannot be attended to today. Under section 214 it isincumbent on me, since I have heard this case as AdditionalDistrict Judge, to forthwith or within not more than 24hours record a verdict of acquittal or conviction. Sincetomorrow is a dies non and Poya day holiday, I will notbe able to do so. I will therefore give my verdict on 16.7.71(PI) as soon as I come on the Bench. I fix that time as 10 a.m.(Both counsel wish to be excused from attending Court onthe 16th. The Crown Proctor and the accused’s Proctor willbe present)”.
On 16.7.1971 the verdict was delivered finding the accusedguilty of both charges and reasons were given. Mr. Chitty’s firstsubmission is that there was a delay of over 24 hours in deliver-ing the verdict and, therefore, it was bad in law.
Section 214 of the Criminal Procedure Code reads:
“ When the cases for the prosecution and the defence are
concludedthe District Judge shall forthwith or within
not more than 24 hours record a verdict of acquittal orconviction”.
The question then is, whether the intervening Poya day shouldor should not be counted in computing the period of 24 hours.It was contended by both Counsel that section 8 of the Inter-pretation Ordinance does not apply.
Counsel for the State drew my attention to the Holidays ActHo. 17 of 1965 which came into operation on 1st July, 1965. Sec-tion 3 declared Poya days public holidays. Section 6 reads“Every Public Holiday (a) shall be a dies non, and (b) shallbe kept as a holiday”. The meaning of the words “Dies Non”lias been considered in K. A. Jayawardena v. Tiruchelvam, 71N. L. E. 134, at page 135 where Samerawickrema, J. adopted•what Bertram, C. J. said in Kulantaivelpillai v. Marikar, 20N. L. R. 471, “ The effect therefore, in our opinion, of the decla-ration of a day as a Public Holiday and dies non is two-fold.In the first place it excuses Judicial Officers and their subordi-nate ministerial officers from the necessity of attending Courtor of performing any judicial or ministerial acts on that day. Inthe second place it precludes any member of the public frombeing forced to attend Court or to attend any judicial proceed-ings also elsewhere than in court on that day ”. I, with respect,
WIJESUNDERA, J.—Dharmaaena v. The Slate
give the same meaning to the words “Dies Non”. The meaningremains the sSme whatever be the nature of the proceedings.The trial Judge was then excused from delivering his verdicton the Poya day, 15th July. Then the duration of the Poya dayshould be excluded from *the computation of the period set outin section 214 of the Criminal Procedure Code.
It has also been said that the ordinary inference from thefact that the day has been declared as “Dies Non” is that pro-ceedings of a Court ought not to be taken, on the day, but it doesnot make the proceedings, if taken, void—Ennis, J. in Gunawar-dena v. Pedrick Singho, 5 C. W. R. at 310. Section 294 of theCriminal Procedure Code says no more than that, that is, ifproceedings are taken those shall be valid. This section readwith section 214 of the Criminal Procedure Code does not com-pel the Court to deliver the verdict on a Poya day, because if itdoes there is no meaning in declaring a day a Public Holidayand a “Dies Non”.
Another matter needs mention. Both Counsel, when the casewas fixed for 14th July, 1971, for trial to suit them, were awarethat it was a pre-Poya day. Proceedings terminated at 12.40p.m. Then the trial Judge had no alternative but to adopt thecourse he did adopt. He recorded why he was compelled to post-pone the delivery of the verdict to the post-Poya day. The in-ference that he postponed the delivery of the verdict because hemight have had doubts is not warranted. I am of the view thatthe verdict is valid at law.
Before passing from this question reference must be made tothe judgment of Wendt, J. reported in Rex v. Fernando, (1905)2 Balasingham Reports 46. In that case the trial was concludedbefore the District Judge on 24th July and the verdict was deli-vered on 26th. Wendt, J. observed “ there is nothing in the Codeto say that the failure to observe this direction vitiates the con-viction, nor does any other part of the Code say so ” and wenton to hold that it was a curable irregularity. The report doesnot 3how whether the 25th was a “Dies Non”. If it was, I ven-ture to think it would have been considered. This judgment wasfollowed later in a case referred to by Dias, Vol. I page 584,—Criminal Procedure Code, S. C. Minutes 29th August, 1917. It isnot necessary for me to follow this judgment.
In order to examine the other submissions of M Ch-'ty it isnecessary to look into the evidence in the case. The accused wasan Excise Guard at Gampola. He, together with some otherofficers raided the house of one Weeratunga on 12th December,1969, in the absence of "Weeratunga. Unlawfully manufacturedliquor was found in the house and one of his sons Jayaratne was
WIJESTXNDERA, J.—Dharmaeetta v. The State
taken into custody. When Weeratunga returned home he wasinformed of this and he went to the Excise Station, Gampola,where he met the accused who told him that unless a paymentof Rs. 50 is made not only his son but all the other members ofthe family will be involved in a case.,Of this visit there is onlythe evidence of Weeratunga. Weeratunga thereafter went backand informed his other son Seeladasa who in turn informed abrother of his working in the Magistrate’s Court of Kalutara.After this visit, Seeladasa went to the Excise Station on10.1.1970 and met the accused at the Excise Station. The accusedthen made, in the course of conversation, a request for moneyfrom him. The Bribery Commissioner was informed and theusual trap was laid for 19.2.1970. The arrangement was thatSeeladasa was to offer Rs. 50 promised in marked currency notesin the presence of another Police Officer Abeyratne to thethe accused. Seeladasa and Abeyratne, on the morning of thisday, went to the Gampola Court house and met the accusednear the gate. The three of them went to a hotel close by and inthe presence of Abeyratne, after inquiry by the accused for themoney, Seeladasa gave the marked currency notes which theaccused accepted. The money was found in the pocket of theaccused.
The charges that the prosecution preferred against the accusedwere : (1) That on or about the 19th day of January, 1970, atGampola within the jurisdiction of this Court you being a publicservant, to wit: —Excise Guard, Excise Station, Gampola, didaccept a gratification of a sum of Rs. 50 from K. Seeladasa asan inducement or a reward for abstaining from performing anofficial act, to wit :— the institution of a prosecution against thepersons concerned in committing offences under the ExciseOrdinance on 12.12.1969 at Berawila, and that you are therebyguilty of an offence punishable under section 19 of the BriberyAct. (2) That at the time and place aforesaid and in the courseof the same transaction you being a public servant as aforesaidemployed for the prosecution, detection or punishment ofoffenders did accept a gratification of a sum of Rs. 50 from theaforesaid K. Seeladasa as an inducement or a reward for yourprotecting from punishment the members of the family of K.Weeratunga perpetrators of offences under the Excise Ordinance,and that you are thereby guilty of an offence punishable undersection 16 of the Bribery Act.
Mr. Chitty complains that when the learned District Judgerefers in his Order to the summary of facts, he utilised that tocorroborate the evidence. Referring to the summary of facts thelearned District Judge has said “ This is found in precis form inpage 4 of the summary of facts attached to the indictment, a copy
WIJESUMDERA, J.—Dharmaaena v. The Slate
of which has been served on the accused—vide last two lines ofpara 1 and 2 ”« The paras referred to are those relating to thegist of the conversation that took place on 19.1.1970 betweenSeeladasa, Abeyratne and the accused. The conversation is de-posed to in detail independently in the evidence of Seeladasaand Abeyratne which the trial Judge has accepted. In referringto the summary of facts the learned trial Judge was only sum-marising their conversation of 19.1.1970 as it transpired in theevidence given in Court for the purpose of considering a defencesuggestion that the money was introduced. That has not beenused to corroborate the evidence of any witness. There can thenbe no complaint on this matter.
Mr. Chitty next urged that the learned trial Judge has actedon the evidence of Weeratunga. Weeratunga was an unsatis-factory witness. In considering his evidence the learned trialJudge has said : —
“ What can be gathered from the sifted from his evidenceis (a) on 12th December, 1969, his house and premises wereraided in his absence by an Excise party ; (b) he went tothe Gampola Excise Station subsequently, where he waitedfor and met the accused, who said only Jayaratne will becharged (in consequence of the raid) if a ‘ Gasthuwa ’—feeof Rs. 50 is given; else all the members of the family over18 would be charged ; (c) he cannot (at first) rememberwhether he told his son Seeladasa of this ; (d) Seeladasawrote to brother Sunil Gunaratne, who came in Djecemberand met him in the village having come from the Magis-trate’s Court, Kalutara, where he was working, after whichhe (Sunil) informed the Bribery Department). ”
There is independent evidence on (a), i.e. the fact of the raidcoming from the Excise Inspector that Weeratunga’s house wasraided in his absence on 12.12.69 by an Excise party. On (c) and
above, there is independent evidence coming from Seela-dasa. The question that needs consideration is what is stated inpara (b) above, that is the purpose for which the money wasgiven. The two charges both aver that the acceptance of Rs. 50by the accused was from Seeladasa. On this there cannot beany doubt.
The question then is whether the purpose for which the moneywas given as averred has been established. The conversationthat took place on the 10th of January between Seeladasa andthe accused and on the 19th of January between Abeyratne,Seeladasa and the accused, which the learned District Judgeaccepted, is illuminating. The accused asked Seeladasa on 10th
WIJESTTNDERA, J.—Dharmaeena v. The Slate
January whether he was from Berawila and whether he wasJayaratne and requested him to pay before summoris was issuedin the case. The date of trial in that case was 19th January, 1970.The conversation that took place between Seeladasa, Abeyratneand the accused on the 19th, namely, inquiries about his motherfermenting toddy, the man who ran away at the raid, the person,who gave information in the village about the Excise raid andso forth, make it abundantly clear that it related to the commis-sion of acts by the other members of Weeratunga’s familyamounting to offences as found at the raid in December andspoken to by Weeratunga. Then it seems to me that on the mat-ters the trial Judge has accepted Weeratunga’s evidence, thereis other evidence which also the trial Judge accepted.
Mr. Chitty drew our attention to the evidence given by Weera-tunge wherein he has at one stage said that he told the Policethat the accused was not the man to whom he spoke on the dayhe went to the Excise Station. But later on Weeratunga said onoath that it was this accused with whom he spoke and whodemanded the money. The defence further produced two docu-ments, Dl, an entry in the diary of the accused D2, a log bookto show that the accused was not in the Station on that dayreferred to by Weeratunga, viz : 21st Dec. The learned trialJudge said that these entries do not mean that the accused couldnot have met Weeratunga immediately outside the Excise Sta-tion. However, the other evidence dispels all doubts on this. Theconversation on the 19th of January is clearly referable to that.
On the 10th of January when Seeladasa went to meet the mandescribed by Weeratunga, whom Weeratunga had met on the21st, and Seeladasa says it was this accused whom he met, thenclearly the person with whom Weeratunga did have the con-versation was the accused. Therefore the learned trial Judgecorrectly concluded when he stated, “ however unsatisfactoryWeeratunga’s evidence is by reason only of his unreliablememory his two sons have established the links in the chain toshow why the Rs. 50 was accepted. ”
The prosecution further argued that even if Weeratunga’sevidence is ignored there is sufficient evidence, viz : the evidenceof Seeladasa and Abeyratne, supporting the finding of guilt onboth charges. When I consider the evidence of Seeladasa andAbeyratne, I am inclined to agree with that view. I therefore dis-miss the appeal and affirm the conviction and sentence.
D. M. DHARMASENA, Appellant and THE STATE, Respondent