Don Percy Nanayakkara v. The Republic of Sri Lanka
DON PERCY NANAYAKKARA
v.THE REPUBLIC OF SRI LANKA
COURT OF APPEAL
S.N. SILVA, J. & D.P.S. GUNASEKERA, J.
CA APPEAL NO. 375/85.
HC COLOMBO CASE NO. 752/80.
JULY 06, 08, 09, 10, 22 AND 30, 1992.
SEPTEMBER 01 AND 08, 1992.
Criminal Law – Examinations – Rescrutiny – Unauthorised alterations in exami-nation results sheet – Making a false document – Forgery – Sections 452 and453 of the Penal Code – Exercise of discretion to add a mark in a borderlinecase – Sentence – Imposition of deterrent punishment.
The accused appellant was the Acting Deputy Commissioner of Examinationsand the Officer-in-Charge of the Data Processing Section of the ExaminationsDepartment. This section was a key unit of the Department and it received datain respect of each G.C.E. (O.L) and (A.L.) examination conducted by theDepartment. In respect of each examination, the section makes out an originalresults sheet in the form of a direct print from the computer. Candidates whosit for an examination not from schools but privately are issued individual resultschedules taken from the original results sheet. At the material time thecandidates had an option of seeking a rescrutiny of their marks. Any changein the grade, effected by a Rescrutiny Board, is entered in the original resultssheet, by hand.
Candidate Hewagama's result sheet at the April 1978 A.L examinationindicated she had failed in Physics. On the rescrutiny despite an assuranceby the accused-appellant the results sheet still showed a failure in Physics. Thecandidate's father took this matter up with the accused-appellant who tookback the rescrutiny results schedule and handed over a fresh schedule showinga pass in Physics. As the candidate's employer wanted confirmation of the results,the accused-appellant issued a letter of confirmation under his hand confirmingthe pass in Physics. The original results sheet was also altered and the letter"F" (failure) which had earlier appeared on it was scored off and the letter“S” (pass) interpolated under the initial of the accused-appellant. Theaccused-appellant denied he did the alteration. Candidate Hewagama's fatherwas Personal Assistant to the Secretary of the Political Victimisation Committeeto which the accused-appellant had made representations. The accused-appellantreceived relief on the recommendation of the Committee and became knownto Hewagama. It was when this matter was in progress that the rescrutiny ofthe Physics result was sought.
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Again in the August 1978 O.L examination candidate Satharasinghe had soughta rescrutiny of her results in French and Physics. The results schedule onrescrutiny showed that candidate Satharasinghe had obtained a credit pass inFrench and as for Physics the accused-appellant added one mark necessary fora credit pass and gave a credit pass in Physics. The accused-appellant admittedthis alteration and claimed he had the discretion to do this in a borderline case.But in the results sheet the alteration was shown as done on the basis of rescrutinyand not on the basis of a bona fide exercise of discretion. The father of candidateSatharasinghe was acquainted with the accused-appellant.
The alteration on the Physics results sheet of candidate Hewagama wasclearly unauthorised. The accused had himself signed the letter of confirmationconfirming the pass in Physics for production to the employer of candidateHewagama, without allowing it to be done by the Certificate Branch accordingto the usual procedure. The alterations have been made dishonestly by theaccused-appellant.
The offence of forgery consists of the making of a false document as definedin section 453 of the Penal Code for any of the purposes stated in section 452.Section 453 defines a false document by setting out the particular process ofmaking the document by which the document itself is rendered false. The threelimbs of the section describe three distinct processes of dishonest or fraudulentmaking, altering or causing the execution or alteration of a document. The instantcase involved the application of the first limb of 'making'. The word "makes" asappearing in the first limb of section 453 should be construed in the broadersense of creating or bringing into existence, the impugned document and notin the narrow sense of only writing the impugned document. Such an interpretationis necessary in a situation where the impugned document is typed or printed.The accused-appellant is guilty of making a false document.
In regard to candidate Satharasinghe the alteration in respect of Physicsis unauthorised and has been made dishonestly and without authority.
There is no discretion in the Commissioner of Examinations to discriminatein favour of an individual candidate on the basis that such candidate has receivedmarks that place him on the borderline of obtaining a credit. Any discretion thatis exercised has to be done on a generalized and non-discriminatory basis. Allcandidates who have received marks up to that level should then be given thehigher grade. The award of a higher grade, as a favour, based upon kinship,friendship or other considerations is a negation of the rule of law, that shouldstrictly govern all processes of conducting public examinations. It is not indicatedin the results sheet that the alteration of the Physics result was done on thebasis of any discretion vested in the Commissioner. The cause for the alterationwas given as on rescrutiny and was patently false.
Nanayakkara v. The Republic of Sri Lanka (S. N. Silva, J.)
The accused-appellant was 60 years old, counted 24 years, of public service,had undergone incarceration for 64 days and was said to be suffering from renalfailure, hypertension and an ischaemic heart disease. There was no evidencehowever that he was receiving in-patient treatment in hospital.
In assessing punishment the Court has to consider the matter from the pointof both the offender and the public. The accused had held high public officeand exercised extensive statutory power in conducting public examinations in thiscountry. These examinations have to be conducted fairly and the results declaredaccurately. Thousands of students who face public examinations, every year,should have complete confidence in the fairness and accuracy of every processof the examinations. The accused has subverted the very basis of this confidenceby his conduct in dishonestly showing favour to persons with whom he wasacquainted. Therefore, public interest demands that he should be imposed adeterrent punishment.
Cases referred to :
Panchanan v. The State, AIR 1953 Calcutta 798.
Siddhapa v. Lalithamma, AIR 1954 Mysore 119.
Province of Bihar v. Surendra Prasad, AIR 1951 Patna 86, 89.
Chatru Malik v. Emperor, AIR 1928 Lahore 681, 686.
King v. Caspersz, 47 NLR 165.
Attorney-General v. H. N. de Silva, 57 NLR 121, 124.
Gomez v. Leelaratne, 66 NLR 285.
APPEAL from judgment, conviction and sentence of the High Court of Colombo.Ranjith Abeysuriya, P.C., with Lasantha Wickramatunga for accused-appellant.C. R. de Silva, D.S.G. for A.G.
Cur. adv. vult.
October 23, 1992.
S.N. SILVA, J.
The accused has filed this appeal from the conviction on charges1,2 and 4 of the indictment and the sentence of 3 years' R.l. imposedon him. The accused was a public officer employed at the Departmentof Examinations from 1966 until he was sent on compulsory leaveon 16.10.1979. At the time material to the charges on which he wasconvicted, he was the Acting Deputy Commissioner of Examinationsand was functioning as the officer-in-charge of the Data ProcessingSection of the Department. This is a key unit of the Departmentand it received data in respect of each G.C.E. (O.L) and (A.L.)examination conducted by the Department, at two stages. Firstly at
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the stage the applications of the candidates are received and secondlyat the stage when the marks secured by each candidate are sentup by the unit in charge of the marking of scripts. Upon processingthis data the section releases the result of the examination to thecandidate. In respect of each examination, the section makes out anoriginal results sheet in the form of a direct print from the computer.The results sheet contains the name, index number, the grade obtainedin each subject offered (viz. Distinction, Credit, Pass, Fail – D, C,S, F) and the total number of subjects passed, in respect of eachcandidate. Candidates who sit for an examination privately (not fromschools) are issued individual results schedules. These schedules areextracts in respect of the particular candidate taken from the originalresults sheet. At the material time the candidates had an option ofseeking a rescrutiny of their marks by making separate applicationsin respect of each subject. This facility was available in respect ofboth types of examinations. Any change in the grade, effected bya Rescrutiny Board, is entered in the original results sheet, by hand.
Counts 1 and 4 relate to unauthorised alterations in the originalresults sheet of the G.C.E. (A.L.) examination held in April 1978 (P1)and G.C.E. (O.L.) examination held in August 1978 (P9). Thesealterations have been made in relation to candidates, Hewagama(Index No. HP 71547) at the A.L. examination and Satharasinghe(Index No. 0060182) at the O.L. examination. Count 2 relates to themaking of a false document viz. Results Schedule (P5) which purportsto confirm the altered result in respect of candidate Hewagama. Theaccused denied that he made any alteration in respect of candidateHewagama and denied that he issued the schedule P5. He admittedmaking the alteration in respect of candidate Satharasinghe andsought to justify that alteration on the basis that it was a bona fideexercise of discretion. In view of this position, the evidence and thesubmissions in respect of the different sets of charges have to beseparately dealt with.
C. P. Hewagama being the father of the candidate Hewagamagave evidence regarding the circumstances in which he sought theassistance of the accused as to an application for rescrutiny madeby his daughter, in respect of one subject. He stated that he becameacquainted with the accused when the latter came to presentan appeal to the Political Victimisation Committee. The witnesswas functioning as a Personal Assistant to the Secretary of theVictimisation Committee. He stated that he assisted the accused
CANanayakkara v. The Republic of Sri Lanka (S. N. Silva ,J.)
by expediting certain steps that had to be taken by the Committeewith regard to the appeal which according to him was belatedlymade. It is not disputed that the accused got relief upon therecommendations made by the Committee. When this matter was inprogress, witness's daughter sought rescrutiny in the subject of Physicsin which she had failed (Grade F). Witness requested the accusedto look into this application for rescrutiny. At a certain stage theaccused indicated, that the daughter secured a Pass in Physics(Grade S) pursuant to the rescrutiny. Some time thereafter, thedaughter received a communication dated 31.1.1979 (P19) stating thatthere was no change in the result pursuant to the rescrutiny. Sincethis was contrary to the information given by the accused, witnesscontacted the accused regarding the matter and the accused agreedto look into it. Later the accused said that there was a mistake andrequested the witness to meet him with P19 and the results schedulethat had already been issued to the candidate. When the witnessmet the accused at the latter's office he handed over P19 and theresults schedule to the accused who in turn gave a fresh schedule(P5) which shows that the daughter had secured a Pass (Grade S)in Physics. According to his evidence, by this time the daughter wasemployed as an Uncertified Science Teacher at the EducationDepartment. When the schedule P5 was submitted to the Department,according to the usual procedure the Department sought confirmationof P5 from the Department of Examinations. This confirmation hadbeen sought but there was a delay at the Department of Examinations,in replying the query. At that stage witness contacted the accused,once again, regarding the matter. The accused requested the witnessto see him at the office. Witness met the accused on 10.10.1979and the accused issued a letter of confirmation under his hand (P8)confirming the altered results as shown in the schedule P5.
The other evidence regarding this set of charges comes fromofficial sources. Fonseka, Asst. Commissioner of Examinations, whosucceeded the accused as the officer-in-charge of the DataProcessing Section, produced the relevant portions of the originalresults sheet in regard to candidate Hewagama (P1). This resultssheet shows that letter "F“ appearing in the column Physics has been -scored off and letter “S" written against it. In the last column showingthe number of subjects in which the candidate has passed, number3 has been scored off and 4 written against it. Beneath each alteration(P1A) an initial in the form of a single letter (zn) has been written.Witness who stated that he has worked with the accused for several
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years identified the initial as being of the accused and specificallystated that the alteration had been made by the accused. Thealteration (P1A) was identified as been made by the accused,by the Commissioner of Examinations witness Gunesekera and defencewitness Gerald de Alwis who was also an Assistant Commissionerof Examinations. A retired Examiner of Questioned Documentstestified for the defence and stated that no opinion could be expressedas to who made the alteration due to the insufficiency of the impugnedwriting. Learned trial Judge placed no reliance on this evidencebecause the witness did not have the necessary material or theopportunity to carry out a proper examination. The prosecution alsoproduced in evidence the detailed mark sheet in the subject ofPhysics showing the marks secured by candidate Hewagama inPhysics (P2 and P3). According to these mark sheets, this candidatehad obtained 29 marks in paper I and 22 marks in paper II. Thusthe average marks secured by the candidate is 26 out of 100 whichis far below the pass mark of 38. The result of the Board of Rescrutiny(P4) shows that the Board found no change in the marks securedby the candidate. Therefore, P19 has to be taken as the correctstatement of the result as disclosed by the Board of Rescrutiny. Thealteration P1A cannot be referred to the rescrutiny and in any eventwitnesses Fonseka and Gunesekera specifically stated that if analteration is made pursuant to a rescrutiny, that matter has to benoted at the foot of the altered results sheet. There is no such entryin the results sheet P1. In the circumstances the alteration P1A isclearly unauthorised.
The accused in his evidence denied having made the alterationP1A. He admitted meeting witness Hewagama at the PoliticalVictimisation Committee but denied that he had any conversationregarding the rescrutiny application made by his daughter. He alsodenied that he issued P5. The accused admitted that witnessHewagama met him at the office on 10.10.1979 regarding theconfirmation sought by the Department of Education of the resultsschedule. At that stage witness had shown him a photo copy of thefront of the schedule P5. The accused gave that copy of the scheduleto his secretary requesting her to attend to the matter. He admittedsigning the letter P8 which confirms the altered result. His defenceis that he did not check the original results sheet before signing theletter P8. But, that he signed the letter in the belief that his secretaryhas caused the matter to be properly checked. The secretary wasnot called as a witness.
CANanayakkara v. The Republic of Sri Lanka (S. N. Silva, J.)77
Learned trial judge has disbelieved the evidence of the accusedregarding the denial of making the entries P1A and of issuing ofP5. He has believed the evidence of Hewagama regarding thecircumstances in which P5 was issued to him. He has also believedthe evidence of witness Fonseka and Gunesekera and the defencewitness de Alwis that the accused made the alteration P1A.
Learned President’s Counsel submitted that the trial Judge wasin error when he accepted the evidence of witness Hewagama. Itwas submitted that Hewagama knew other persons in the Departmentof Examinations and would have got the alteration done by one ofthem. As regards credibility, learned President's Counsel submittedthat the evidence of Hewagama shows manifest improbability in twomatters. They are : (1) according to the witness' evidence whenP5 was given, which was contrary to letter received after therescrutiny (P19), he merely took it from the accused although therewas no authentication on the face of the document. It was submittedthat any person would have insisted that the altered schedulebe authenticated specially because it was contrary to the resultsalready declared ; (ii) Hewagama stated that he did not tell thedaughter that he got the altered schedule (P5) from the accused.It was submitted that this is highly improbable since the daughterwould invariably have asked, as to how he managed to get a resultsschedule different from what was originally issued and confirmed bythe letter sent after rescrutiny.
We have carefully considered these two matters in relation to theevidence of Hewagama and the other evidence adduced by theprosecution. Hewagama has been specifically cross examined asregards these aspects at the trial. In relation to the first matter hestated that since the schedule P5 was given directly by the accusedbeing the Deputy Commissioner, he did not think it necessary to seekfurther authentication. We are inclined to accept the view expressedby learned trial Judge that there is no improbability in this version.The second matter relates to something what the father would havetold the daughter regarding the person who gave the freshschedule. Hewagama specifically stated that he did not consider itnecessary to tell the daughter as to who gave the schedule P5. Thesematters have to be viewed in the background of the other evidenceof Hewagama. According to Hewagama's evidence, before theletter P19 was received the accused informed him that the daughter
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had passed in Physics pursuant to the rescrutiny. When thewitness spoke to the accused later regarding P19, the accused saidthat P19 had been sent by mistake and requested the witness tosee him with that document and the original results schedule. Viewedin this background, we do not see merit in the submission of learnedPresident's Counsel that the evidence of Hewagama should havebeen disbelieved by the trial Judge in view of these two matters.On the other hand, Hewagama's evidence is supported by thefollowing matters
Documents P19 (letter dated 31.01.1979 sent to candidateHewagama informing her of the results upon rescrutiny) and theenvelope in which the letter was sent (P36) were found inside adrawer of the table of the accused at the time it was searched bythe police in the presence of witness Fonseka. These two documentswere shown to the accused when he was brought from the remandprison on 27.11.1979. Hewagama's evidence is that he handedover these documents to the accused prior to receiving the freshschedule P5.
The letter P8 addressed to the Department of Educationconfirming the results of candidate Hewagama (as altered) is signedby the accused. The explanation of the accused is that he issuedthe letter on being shown a copy of the results schedule P5. However,the significant fact is that the letter specifically confirms the alteredresults. If any officer of the Examinations Department checked onthe original results schedule, for the purpose of confirmation, thatofficer would invariably have discovered the unauthorised alterationP1A. Hence the fact that the accused himself signed the letterof confirmation, without allowing it to be done by the CertificateBranch, according to the usual procedure, supports the position ofthe prosecution that the accused made the unauthorised alterations.On the other hand, the suggestion of the defence that Hewagamagot the alteration done by another person and sought the assistanceof the accused only to get the letter of confirmation P8 is baseless.If Hewagama got the alteration done by another person he wouldnot have gone to the accused to get confirmation of the alteredresult, knowing fully well that the forgery will be discovered at thatstage.
Nanayakkara v. The Republic of Sri Lanka (S. N. Silva, J.)
The document P6 (letter dated 14.08.1979) sent by theDepartment of Examinations seeking confirmation of the results ofcandidate Hewagama) was also found in the drawer of the accused'stable when it was searched on 19.11.1979. According to the evidencethis being a letter sent through the official channels would havebeen dealt with by the Certificate Branch. It would not have ordinarilyreceived the attention of the accused directly. This matter supportsthe submission made by the prosecution that the accused removedthe letter from the Certificates Branch and kept it in his drawer toprevent any person from discovering the alteration in P1A, in dealingwith P6, in the ordinary course.
The evidence of witnesses Fonseka and Gunesekera andthe defence witness Gerald de Alwis that the alterations in P1A arein the writing of the accused.
Evidence of witness Yasawathie (subject clerk) that theschedule P5 (with reference to the serial number) had been issuedto the accused in the ordinary course.
Considering the foregoing matters we are of the view that thereis no merit in the submission of learned President's Counsel that theevidence of Hewagama should have been disbelieved by the learnedtrial Judge. The several items of evidence referred above, in our view,clearly establish that the accused made the unauthorised alterationsin P1A. The alterations produce a result that is not borne out bythe marks of candidate Hewagama obtained in the subject of Physicsand has been made dishonestly. The guilty knowledge of the accusedin this respect is seen by the fact that he kept the documents P19,P36 and P6 in his drawer to prevent discovery by any other person.The fact that he took upon himself the task of signing the letter ofconfirmation P8 is a clear indication of the steps taken by him toprevent any discovery of the dishonest act. In the circumstances weare of the view that charge No. 1 has been established beyondreasonable doubt and that there is no error in the finding of the learnedHigh Court Judge in this respect.
Charge No. 2 which relates to issuing of P5, directly flowsfrom the unauthorised alteration P1A. Learned President's Counselsubmitted that this charge could only be established if it isproved that the accused himself made the false document P5. This
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document is a printed results schedule in which the signature of theCommissioner is also printed. The particulars such as the name,index number and grades obtained are typed. This is clearly a falsedocument since it reflects an incorrect grade in respect of thesubject of Physics. Learned President's Counsel submitted that theprosecution should establish that the accused himself typed outthe entries in this document. That, it is not sufficient if all what theprosecution can establish is that the accused was responsible for thisdocument or caused it to be typed by any other person.
Learned President's Counsel relied on the following passage fromGour's Pencil Law of India, in relation to the corresponding section(464) of the Indian Penal Code
"In order to attract the application of the first part of section464 it is necessary that the accused should make a false documentor part of a false document and not merely cause it to be made.Making a false document is one thing and causing a falsedocument to be made is another.” (10th edition-vol. IV-p3904)."
We have considered the submission of learned President'sCounsel as a matter of law. The offence of forgery consists of themaking of a false document as defined in section 453 of the PenalCode, for any of the purposes stated in section 452. Section 453defines false document by setting out the particular process of makingthe document by which the document itself is rendered false. Thethree limbs of the section describe three distinct processes ofdishonest or fraudulent making, altering or causing the execution oralteration of a document. This case involves the application of thefirst limb of “making", which reads as follows :
"Firstly – who dishonestly or fraudulently makes, signs, sealsor executes a document, or makes any mark denoting theexecution of a document, with the intention of causing it to bebelieved that such document or part of a document was made,signed, sealed, or executed, by or by the authority of a personby whom or by whose authority he knows that it was not made,signed, sealed, or executed, or at a time at which he knows thatit was not made, signed, sealed or executed ; or"
Nanayakkara v. The Repbulic of Sri Lanka (S. N. Silva, J.)
The passage cited by learned President's Counsel in Gour is basedon the judgment of Mitter, J. of the High Court of Calcutta in thecase of Panchanan v. The State (1). In that case, the accusedaccording to the evidence, had obtained the thumb impression of anold lady on a blank paper so that he could get authority to act onher behalf in an action filed against her. This paper was used tomake out a conveyance of the old lady's property, by anotheraccused. The accused who wrote out the conveyance was acquittedand the High Court held that the conviction of the accused whoobtained the thumb impression on the blank paper cannot besustained because he did not make the conveyance. It is in thiscontext that the learned Judge made the observation that is containedin the passage stated above. However, a perusal of other judgmentsof High Courts in different States of India show that the word ''makes"appearing in the first limb of the definition of forgery is not restrictedto the actual writing of the impugned document itself. In the caseof Siddhapa v. Lalithamma (Z) the High Court of Mysore upheld theconviction of the accused of forgery where he had caused to beprinted, false marriage invitations issued under the names of twopersons, announcing the celebration of the marriage of the accusedwith the complainant who was a young woman owning property.Neither the complainant nor the persons under whose namesthey were issued had authorised the accused to print suchinvitations and in fact no marriage was fixed between theaccused and the complainant. According to the evidence theaccused caused the printing to be done, distributed these invitationsto friends and caused it to be published in the newspapers.Balakrishnaiya, J. followed other decisions in India and held thatthe word " makes " in the definition means nothing else than thecreation or bringing into existence of a document. On that basis heupheld the conviction although the accused had only authorised theprinter, to print the document. Similar interpretations have been givento the word “makes" by the High Court of Patna in the case ofProvince of Bihar v. Surendra Prasad(3) and the High Court of Lahorein the case Chatru Malik v. Emperor <4). Therefore, we are of theview that the word "makes" as appearing in the first limb of section453 should be construed in the broader sense of creating or bringinginto existence, the impugned document and not in the narrow senseof only writing the impugned document. Indeed, such an interpretationis necessary in a situation where the impugned document is typedas in this case or printed as in the Mysore case referred to above.
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In this case there is no direct evidence as to who typed the entriesin the schedule P5. This schedule, as noted above, is the normalform in which results are communicated. It has the signature of theCommissioner printed on it. Thus it carries with it the authority ofthe Commissioner to disclose the correct result as appearing in theoriginal results sheet. If an unauthorised result is entered in thisschedule the position is that the document does not have the authorityof the Commissioner but, becomes a dishonest manifestation of theCommissioner's authority. We are of the view that the following itemsof circumstantial evidence establish that the accused created orbrought into existence the schedule P5, in the form in which itappears now
the (blank) schedule is one issued to the accused forthe purposes of his official work. This was disclosed by the subjectclerk with reference to the entries in the register upon which theforms of schedules are issued and the serial number of the schedule.
The document in the present form was given toHewagama by the accused at his office.
It contains the results as altered by the accused in P1A,according to the previous finding.
Its contents are confirmed by the letter P8 signed bythe accused.
Therefore we see no basis to interfere with the conviction oncharge 2.
As regards charge 4, the prosecution adduced the evidence ofSatharasinghe being the father of the candidate. He stated that his. son sat the G.C.E. (O.L) examination in August 1978. On receiptof the results, he sought rescrutiny of the marks in the subjects ofPhysics and French. At or about this time, he met the accused atthe house of the then Minister of Education, in connection withanother matter. Later he received letter dated 15.03.1979 (P23) statingthat there is no change in the results in Physics. However, no replywas received regarding the rescrutiny application in the subject ofFrench. He contacted the accused regarding this matter and theaccused agreed to look into it. When he contacted the accused later,the accused said that the candidate had got one mark less than theCredit level in Physics and that he had the discretion to give thatmark. He requested the witness to see him after the rescrutiny resultis received in respect of French. Thereafter the rescrutiny result in
Nartayakkara v. The Republic of Sri Lanka (S. N. Silva, J.)
French was received stating that the candidate had secured a Creditin that subject. Since the accused had agreed to alter the result inPhysics by giving an extra mark, witness met the accused on 19.04.1979with the results schedule P17 and P23 being the letter whichcommunicated the result upon rescrutiny, in the subject of Physics.The accused retained these documents and issued the fresh scheduleP18 under his signature. This schedule states that the candidatehas obtained a Credit in Physics as well. The original results sheetin respect of candidate Satharasinghe has been produced markedP9. It shows alterations in respect of the subject of Physics andFrench. In both places the letter °S" has been scored off and theletter "C" written. The initial has been written beneath these entries.At the bottom of the sheet it is written as follows"Physics C – on rescrutinyFrench C – on rescrutiny."
Both entries are bracketed and the accused has placed his fullsignature. As stated above the accused admitted making bothalterations and the entries at the bottom.
The alterations and the entry in respect of the subject of Frenchis authorised since it is based upon rescrutiny. The case for theprosecution is that the alteration in respect of Physics is unauthorisedand has been made dishonestly. The accused in giving evidencestated that he had a discretion to add a mark in a borderline case.His evidence in this regard was supported by the evidence of witnessBogoda Premaratna. Both witnesses have been cross examined atlength by the prosecution regarding this aspect of the exercise ofdiscretion. They were not able to point to any instance where aborderline case was singled out for special treatment. Learned trialJudge has disbelieved the evidence of the accused and of Premaratnaregarding this aspect. We are firmly of the view that there is nodiscretion in the Commissioner of Examinations to discriminate infavour of an individual candidate on the basis that such candidatehas received marks that place him on the borderline of obtaining aCredit. Any discretion that _ is exercised has to be done on ageneralized and a non-discriminatory basis. All candidates who havereceived marks up to that level should then be given the higher grade.The award of a higher grade, as a favour, based upon kinship,friendship or other considerations is a negation of the rule of law,that should strictly govern all processes of conducting publicexaminations.
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Learned President's Counsel submitted that in any event theaccused cannot be considered as having acted dishonestly becausehe has made the alteration in P9 and the corresponding entry, quiteopenly and without any attempt to hide or conceal the authorshipof the alteration.
In other words, it was submitted that even if the discretion hasbeen exercised on an erroneous basis, the accused has acted bonafide and not dishonestly. We are not inclined to accept this submissionfor the reason that in the results sheet P9, the accused has statedthat the result in respect of Physics is also altered on the basis ofrescrutiny. It is not stated there that the alteration was done on thebasis of any discretion vested in the Commissioner. Thus, the causefor the alteration as given in P9 is patently false. The accused soughtto explain this on the basis that he used the word "rescrutiny"differently in the two instances. As regards French, he used "rescrutiny"in the sense of rescrutiny of marks. As regards Physics, he used“rescrutiny" in the sense of a rescrutiny of the result. There is nobasis whatever to accept such an explanation. The accused hasfailed to produce the appeal which he claimed was made bySatharasinghe nor did he produce any file containing the particularsof an official exercise of discretion. On the other hand documentsP17 and P23 given by Satharasinghe were found by the police insidea locked drawer of the table, in the presence of the accused. Thesecircumstances clearly establish that the alteration in P9 was madedishonestly and without authority.
For the reasons stated above, we affirm the conviction on charges1, 2 and 4 of the indictment.
As regards sentence, learned President's Counsel submitted thatthe accused is 60 years old at present and has had 24 years' inpublic service. It was submitted that the accused has undergoneperiods of incarceration in remand up to 64 days. He further submittedthat the accused has been suffering from renal failure, hypertensionand an ischaemic heart disease. There is no evidence that theaccused is at present receiving in-patient treatment at any hospital.On these matters learned President's Counsel submitted that theaccused should be imposed a non custodial sentence. LearnedPresident's Counsel also relied on the judgment of the Supreme Courtin the case of King v. Caspersz (5).
Nanayakkara v. The Republic of Sri Lanka (S. N. Silva, J.)
Learned Deputy Solicitor-General objected to any variation ofthe sentence that has been imposed. He relied on the observationsof Basnayake, ACJ, in the case of Attorney-General v. H. N. deSilva (6) and of Sriskandharajah, J. in the case of Gomez /sLeelaratne m.
We have carefully considered the question of sentence in thelight of the submissions made and the judgments that were cited.We are of the view that in assessing punishment the court has toconsider the matter from the point of both the offender and the public.The accused has held high public office and exercised extensivestatutory power in conducting public examinations in this country.These examinations have to be conducted fairly and the resultsdeclared accurately. Thousands of students who face these publicexaminations, every year, should have complete confidence in thefairness and accuracy of every process of the examinations. Theaccused has subverted the very basis of this confidence by hisconduct in dishonestly showing favour to persons with whom he wasacquainted. Therefore, public interest demands that he should beimposed a deterrent punishment. We are of the view that there isno reason whatever to interfere with the sentence imposed by thetrial Judge.
We are also mindful of the fact that the accused has stayed awayfrom the country contrary to the conditions imposed in granting bail.
We accordingly affirm the conviction and the sentence of 3 years'R.l. imposed on the accused and dismiss the appeal.
D. P. S. GUNASEKERA, J. – I agree.
DON PERCY NANYAKKARA v. THE REPUBLIC OF SRI LANKA