G. W. PERERA and another, Appellants, and E. M. V. NAGANATHAN, Respondent

105-NLR-NLR-V-66-G.-W.-PERERA-and-another-Appellants-and-E.-M.-V.-NAGANATHAN-Respondent.pdf


438
Per era v. Naganathan
1964Present: G. P. A. Silva, J.G. W. PERERAand another, Appellants, and E. M. V. NAGANATHAN,
Respondent
S. G. 226-22711963—M. C. Jaffna, 24240
Evidence— Cognizable offence—Statement made by a person to a police officer duringinvestigation—Use cf it by Court as evidence—Illegality—Reception of evidenceof bad character of accused—Etject—Finding of fact in a criminal case—Cir-cumstances when appellate Court will reverse it—Burden of proof in a criminalcase—Criminal Procedure Code, S3. 122 (3), 100—Evidence Ordinance, ss. 145,155, 165, 167.
At the trial of a cognizable offence, the accused led evidence in terms ofsection 122 (3) of the Criminal Procedure Code, read with sections 145 and 155of the Evidence Ordinance, to show that the prosecution witnesses had, in theirstatements to the Police in the course of the investigation of the offence, madecertain statements which were contradictory of their evidence at the trial.After the evidence in the case was concluded, the Magistrate caused to be pro-duced the full statements made to the Police by the prosecution witnesses, inorder to satisfy himself “that nothing has been taken out of their context”and also “ to go through the record of the statements in the light of statements ofcounsel for the defence ”. On the next morning he pronounced his verdictfinding the accused guilty and, two weeks later, delivered his reasons. In hisreasons, however, he made no reference to the statements made to the Police.
Held, (a) that the use made by the Magistrate of the statements to the Policewas contrary to the provisions of section 122 (3) of the Criminal ProcedureCode. The failure of the Magistrate to advert, in his judgment, to the statementsand to say in what way he used tlem was a fatal irregularity. Silence on thematter left the appellate court without any material to adjudicate on the questionas to the use made of the statements or as to the extent to which the Magistratewas influenced by them in arriving at his decision. Further, the note by theMagistrate that he would also like to go through the record of the statementsin the light of the statements of the Counsel for the defence suggested that hemight quite unwittingly have put these statements to a use other than thatwhich was authorised by the Code.
(b) that, if the statements to the Police were produced in terms of section 165of the Evidence Ordinance in order to discover or obtain proper proof of relevantfacts, and the Magistrate made use of such statements which he caused to beproduced of his own motion in arriving at his verdict under section 190 of theCriminal Procedure Code, acting on such evidence was a flagrant violation of theprovisions of section 122 (3) of the Criminal Procedure Code.
SELVA, J.—Per era t>. Naganathan
439
Held farther : Where irrelevant evidence as to the character of the accusedhas been admitted and the other evidence against the accused is by no meansoverwhelming and is unsupported by any independent circumstance and thereis no indication by the Judge that he has not been in any way influenced by theinadmissible evidence, the conviction of the accused would be set aside. Insuch a case, the provisions of section 167 of the Evidence Ordinance are notapplicable.
The court of apjeal will not lightly interfere with a finding of fact by thetrial court in a criminal case, but where there is good ground to do so in thecircumstances of the case or where the judgment is unsound, not merely hasthe appellate court the right but it is under a duty to reverse suoh finding.
In a criminal trial the trial Judge must not convict the accused by merelyexpressing a preference of the prosecution version to that of the defence. It isincumbent on him not merely to have a preference for the prosecution versionbut to be satisfied beyond reasonable doubt. Implicit in an expression ofpreference is a reasonable doubt.
.A-PPEAL from a judgment of the Magistrate’s Court, Jaffna.
H. W. Jayewardene, Q.C., with N. R. M. Daluwatte, L. C. Seneviratneand I. S. de Silva, for the Accused-Appellants.
M. Tiruchelvam, Q.C., with A. Mahendrarajah, M. Amerasinghamand Henry JayzJcody, for the Complainant-Respondent.
Cur. adv. wit.
September 23, 1964. Silva, J.—
The two accused-appellants in this case, G. W. Perera and S. B. Pila-pitiya, both Sub In, pectors attached to the Jaffna Police, were chargedon two counts of voluntarily causing hurt to Dr. E. M. V. Naganathanat the Jaffna Police Station on 5. 6. 1962, offences punishable underSection 314 of the Penal Code. There was a separate charge in respectof each of them of having committed this offence in the course of the sametransaction. The learned District Judge, who was also an additionalMagistrate, found both the accused guilty at the conclusion of the trialand sentenced Sub-Inspector Perera to one month’s simple imprisonmentand Sub-Inspector Pilapitiya to a fine of Rs. 100, in default four weekssimple imprisonment. Both the accused have appealed. In view of thissentence passed against Sub-Inspector Perera, which is not appealable,he has also filed papers in revision before this Court. The appeal hasbeen strenuously argued on both sides, the argument lasting four days,and I am indebted to both counsel for their exhaustive analysis. Asthe cases of both accused are inextricably interwoven with each other,being part of the same incident, it will be convenient to deal with boththe appeal and the application in revision together. Counsel for therespondent has very properly conceded that the same considerations willapply to the appeal and the application in these circumstances.
440
SILVA, J.—Perera v. Naganathem
The first submission made by counsel for the appellant, based on certainprovisions of the Criminal Procedure Code, is that the statements madeto the Police by the complainant and his witness were used as evidenceby the learned Magistrate. His contention was that such use ofPolice statements was clearly contrary to the provisions of Section 122 (3)of the Criminal Procedure Code, which says :—“ No statement made byary person to a Police officer or an inquirer in the course of any investi-gation under this Chapter shall be used otherwise than to prove that awitness made a different statement at a different time, or to refreshthe memory of the person recording it. But any Criminal Court maysend for the statements recorded in a case under inquiry or trial in suchCourt and may use such statements or information, not as evidence inthe case, but to aid it in such inquiry or trial. ” Counsel argued thatthe only course authorised by this Section for a Court if to send for thestatements recorded in a caso under inquiry or trial, so that they may beused to aid the Court in such inquiry or trial but that it would be irregularfor a Court under any circumstances to have entire statements mado to thePolice by prosecution witnesses to be produced in the case and that themoment such statements are produced they become part of the ovidence.It seems to me that there is force in this contention. In the conduct ofcriminal cases, it is imperative t hat the provisions of the Criminal Proce-dure Code must be strictly adhered to. In a country where there is astatute or code governing criminal procedure, the rule is that a court canonly do what it is authorised to do and no other discretionary powerscan be exercised, unless the Code itself permits such discretionary powersover and above what is specifically laid down. That being so, a fortiori,where the Code makes a definite prohibition regarding any matter suchas the use of Pclice statements during the proceedings, a violation of sucha prohibition must be considered to be a fatal irregularity, whatevermay be the use to which such statements have been put. The objectionis rendered stronger when the Judge has failed, in the course of his judg-ment, to advert to the statements produced in the teeth of a prohibitionin the Code and to say in what way he has used the statements. Silenceon such a matter would leave this court without any material to adjudi-cate on the question as to the use made thereof or as to the extent towhich the learned Magistrate may have been influenced by such statementsin arriving at his decision against the accused.
In the case of Bartholomeu-sz v. Velu l, it was held by Macdonell, C.J.,that where a Magistrate at the conclusion of the evidence in a case sentfor and perused the Police Information Book for the purpose of arrivingat a decision, the use of the Information Book was irregular and that aMagistrate who wished to use the Information Book should call the Policeofficer who recorded the information. In that case after the prosocutionand the defence had closed, having called witnesses on both sidos, theMagistrate made an order, “ Lot I. B. Extracts be produced tomorrow ”.They were accordingly produced and filed in the record of the case the
1 (1931) 33 N. L, R. 161.
SILVA, J.—Per era v. Naganathan
441
next day and, on the day after that, the Magistrate found the accusedguilty. Macdonrll, C.J., in setting aside the conviction observed,“ These entries in the record can, I think, only mean this, that afterhearing the evidence on both sides, the learned Police Magistrate was notquite satisfied which side he should believe, and that he sent for the Infor-mation Book to assist him. This is a purpose for which the InformationBook must not be used and to my thinking it vitiates the conviction ”.While saying that there was abundant authority for this proposition hecited one case, namely, that of Paulis Appu v. Don David 1, in which casetoo the Magistrate had done almost identically the same thing. In theinstant case what happened was that when the prosecution witnessesgave evidence, they wore confronted with certain alleged statementsmade to the Police which contradicted their evidence. Later, when theAssistant Superintendent of Police gave evidence for the defence, thesecontradictory statements were proved with a view, of course, to showingthat the prosecution evidence should not be accepted owing to theirinconsistency with previous statements. This course is sanctioned bysection 122 (3) of the Criminal Procedure Code read with sections 145 and155 of the Evidence Ordinance. At some stage of the evidence of theAssistant Superintendent of Police the Magistrate made the followingorder:—“ I order the witness to produce the full statement of Pathma-nathan and the full statement of Dr. Naganathan as recorded by him,as I want to ensure that nothing has been taken out of its context andfor no other reason. ” The Assistant Superintendent of Police beingthe last witness to be called for the defence, counsel made their addressesafter which the learned Magistrate made the following order :—“ Ordertomorrow morning, as I have had no opportunity to read through therecord of statements of Dr. Naganathan and witness Pathmanathan,which I want to be produced to see that nothing is taken out of theircontext. I would also like to go through the record of statementsin the light of statements of the counsel for the defence. ” Thosetwo statements appear at the end of the record marked * X ’ and ‘ Y ’and on the next morning (1. 2. 1963) the Magistrate pronounced hisverdict finding both accused guilty and ordered the accused to be presenton 14.2.1963 for reasons to be delivered and sentence to be imposed.These were accordingly done. There appears to have been some mis-understanding about this date owing to a Press report that the reasonswere to be delivered on 15.2.1963 and the learned Magistrate deliveredhis reasons on the 15th. In his reasons, however, he has made noreference to the statements which he ordered to be produced and which,in fact, have been produced as ‘ X ’ and ‘ Y It would appear that thecontradictions that were put form a very small proportion of the fairlylong statements made by the prosecution witnesses. It is not possiblefor one to say that the contradictions which were put have been takenout of their context. In the absence of any observations by the learnedMagistrate regarding this aspect of the contradictions, itmustbe assumedthat, at the time they were proved, he considered the contradictions to
1 8 Times oj Ceylon Law Reports 59.
442
SILVA, J.—Per era v. Naganathan
have been material, for, if they were immaterial contradictions, no usefulpurpose would have been served by the Magistrate going through theentirety of the statements in order to discover for himself whether suchimmaterial contradictions were in or out of context. If then he orderedthe statements to be produced because he considered the contradictionsto he material, unless they were taken out of their context, and if, afterperusal of the statements, he found that the contradictions were notout of context, what importance did he attach to the contradictions.Unfortunately, the judgment docs not furnish an answer to this question.In these circumstances, it is not possible for this court to say to what usethe learned Judge put these Police statements nor to assess to whatextent, however imperceptibly, he would have been influenced by thePolice statements in coming to his decision. Further, the note by theMagistrate that be would also like to go through the record of the state-ments in the light of the statements of the counsel for the defence suggeststhat he may quite unwittingly have put these statements to a use otherthan that which is authorised by the code.
Counsel for the appellants further argued that the only provisionswhich permitted a Judge to order the production of a statement arecontained in section 165 of the Evidence Ordinance and that it must,therefore, be presumed that he ordered the production of the statementsmade to the Police by the prosecution witnesses in terms of this section.He submitted that in criminal proceedings that section must bo readwith sections 190 and 301 (1) of the Criminal Procedure Code, the lastsection dealing only with the requirement for the Magistrate to initialand date any document produced as evidence, which requirement hasbeen complied with in this instance by the Magistrate. Section 165of the Evidence Ordinance provides as follows :—“ The Judge may,in order to discover or to obtain proper proof of relevant facts, ask any
question he pleasesand may order the production of any
document or thing …. ” Section 190 of the Criminal Procedure
Code says :—“ If the Magistrate after taking the evidence for theprosecution and defence and such further evidence (if any) as he mayof his own motion cause to be produced finds the accused not guilty
&c.” On an interpretation of these two sections read
together it would appear tiiat a Judge is entitled to order the productionof any document of his own motion only to discover or to obtain properproof of relevant facts which can be used in arriving at a verdict. Con-versely, unless a Judge wishes to discover or to obtain proper proof ofrelevant facts he has no power to order the production of any documentmero moiu. It seoms to me, therefore, that a Judge is not empoweredunder this section to order any documentaiy evidence to be producedin order to check whether an alleged contradiction has been taken outof its context. This principle would apply with greater force when thedocumentary evidence ordered to be produced consists of a completestatement to the Police which itself is prohibited from being used asevidence under section 122 (3) of the Criminal Procedure Code, eventhough the Magistrate has stated that he was ordering their production
SILVA, J.—Per era v. Nagano thon
443
for some other purpose. It was, therefore, either irregular for the courtto have ordered the productions of documents * X ’ and 1 Y’as there wasno enabling provision to do so or, if they were produced in terms ofsection 165 of the Evidence Ordinance in order to discover or obtainproper proof of relevant facts, and the Magistrate made use of suchstatements which he caused to be produced of his own motion in arrivingat his verdict under section 190 of the Criminal Procedure Code, actingon such evidence would be a flagrant violation of the provisions ofsection 122 (3) of the Criminal Procedure Code.
The answer of the counsel for the respondent to this submission is thatsection 122 (3) of the Criminal Procedure Code empowers a criminalcourt in the course of a trial or inquiry to send for Police statementsand that the Judge in this case did no more than that. He also submittedthat there was not one word in the judgment to show that the courtwas influenced in its decision by these Police statements. Counselcited to me several cases in support of his argument. In the first ofthem, King v. Soysa1, while Jayawardena, A.J., expressed the view thatthe improper use of the entries in the Information Book will notnecessarily vitiate a conviction of the accused if there is other reliableindependent evidence to support the conviction, he held that a Judgewas not entitled to use statements in the Information Book for the purposeof corroborating the prosecution evidence. It is important here to notethe qualifications in the expression of this opinion. The other evidencereferred to must be both independent and reliable. The complainant’soial evidence alone unsupported by any other witness—Pathmanathan’sevidence being admittedly unreliable—or any circumstance such as thepresence of injuries on the complainant based on a medical report,can hardly be called other reliable independent evidence whichJayawardena, A.J., had in mind. His pronouncement about theimproper use of the Information Book, however, is categorical and he setaside the conviction although I must say that the trial Judge in that caseappears to have gone much further in the use of the Information Bookstatements than in the instant case. In the next case cited, PaulisAppu v. Davit2, after the case was closed the Magistrate deferredjudgment noting down that he wished to peruse the Information Bookand gave his decision convicting the accused some time thereafter.Akbar, J., citing two previous cases in support acquitted the accusedholding that it was wrong for the Magistrate to have looked at theInformation Book to enable him to come to a decision.
Of the two cases cited by Akbar, J., one was the 26 New Law Reportscase already referred to and the other one was that of Wickremasinghe v.Fernando 3, where too the accused was acquitted in appeal when theMagistrate referred to the Information Book for the purpose of testingthe credibility of a witness by comparing his evidence with a statement byhim to the Police. In this respect this case bears some similarity tothe instant case. In this case Jayawardena, A.J., went on to illustrate
1 (1924) 26 N. L. B. 324.* (1930) 32 N. L. B. 336.
* (1928) 19 N. L. R. 403.
444
SILVA, J.—Perera v. Naganathan
some of the uses to which statements in the Information Book can beput, namely, “ to discover out of them any matter of importance bearingupon the case and then to call for the necessary evidence to have thematter legally proved ”. It would thus appear that it requires carefuldiscrimination and wise judgment to make a proper use of the Policerecords and while they may bo resorted to in the course of an inquiryor trial for the histoiy of the several stages through which the Policeinvestigation into a crime has passed they are unsafe to be relied on for anypurpose relating to the finding of guilt. The other case cited by counselfor the respondent was that of Kitnapulle v. Christoffelzx, in whichBasnayake. J., held that the use of the Information Book was a matterentirely within the discretion of the Judge. He qualified his decision bysaying that a Judge should, however, take care not to make use of state-ments or facts contained in the Information Book as evidence for anypurpose whatsoever or to draw any conclusion of guilt from such state-ments. On a perusal of this judgment it would appear that the Magistratehad in his judgment stated the specific purpose for which he read thePolice statement: “ There were some discrepancies between the state-ment to the Police and evidence but these do not go to the root of theincident. On the evidence it is clear beyond doubt tha+ the accusedare the persons who committed the offence In this particular case,therefore, the Appeal Court had some material in the judgment tornwhich it could definitely be satisfied as to what use the Magistrate hadmade of the Information Book., and secondly, there seems to have beenother weighty evidence to prove clearly the guilt of the accused. In theinstant case while the Judge stated in the course of the proceedings whyhe was calling for the two statements he has not stated, for the benefitof this court, what opinion he formed after a perusal of the statement inregard to the contradictions. It is to be noted that in all these casescited by both counsel, bar one, the use of the Information Book was holdto vitiate the conviction when such use was for a purpose other than thosespecified iu section 122 (3) of the Criminal Procedure Code. In my view,when the Information Book has been used by the court even if it isdoubtful whether such use was proper or not, or even if it is doubtfulwhether the Judge was influenced by it or not, the accused must receivethe benefit of the doubt, more particularly where the evidence for theprosecution is neither overwhelming nor compelling. In this con-nection the principle laid down by de Kretser, J., in the case cited bycounsel for the appellant, Coomarasamy v. Meera Saibo2, is of interesteven though it was cited by counsel for a different purpose. It was held inthat case that even if a Judge is not in fact influenced, if the accusedgained the impression that he had been influenced by some inadmissibleevidence that consideration was sufficient to vitiate a conviction havingregard to the principle that the administration of justice should notonly be pure but should seem to be pure. (The italicizing is mine.)
1 {1948) 49 N. L. R. 401.
* 5 Ceylon Law Journal 68.
SILVA, J.—Perera v. N agancUhan
440
The next point taken up by counsel for the appellant was that thelearned Magistrate has not given reasons for his decision in the mannerthat he is required to do in terms of the provisions of section 306 (1)of the Criminal Procedure Code. Two cases have been cited to me in.upport of his submission, namely, Ibrahim v. Inspector of Police,Ratnapura x, and Thuraiya v. Pathaimany 2. In the latter case, whichwas followed in the former, it was held that a mere outline of the casefor the prosecution and defence, embellished by such phrases as, “ Iaccept the evidence ” for the prosecution, “ I disbelieve the defence ”is by itself an insufficient discharge of the duty cast upon a Magistrateby section 306 (1) of the Criminal Procedure Code. In his ..ubmiscionthere was a narration of facts for the prosecution and defence by theJudge which ran into about 3£ pages, at the end of which he merelysaid, “ I have no hesitation at all in preferring the doctor’s version tothat of Sub-Inspector Perera. While the doctor made an excellentimpression in the box, Sub-Inspector Perera cut a very sorry figureunder cross-examination I do not think that there is substance inthis contention for the Judge has, in fact, given reasons for his finding.There is, however, a grave fallacy in his reasoning. For, having dis-believed the Sub-Inspector the Judge thereafter went on to give somereasons for his disbelief almost all of which were based on his beingcontradicted by Sergeant Dharmalingam. I could even have appreciatedthis line of reasoning if the learned Magistrate had formed a veryfavourable impression of the witness Dharmalingam. But I find thatthe learned Magistrate had condemned Dharmalingam as a perjurerfor more reason s than one. At various times in the course of the judgmenthe has made the following observations in regard to Sergeant Dharma-lirgam. “ Police Sergeant Dharmalingam has obviously been prevailedon to fall into line with the Sub-Inspector’s version of what the Sub-Inspector claimed that the doctor did in regard to the taking of the seat… The Sergeant’s story of how the doctor pulled him off the
seat was obviously untrue …. The statements of Police officerswere not commenced until 12.25 a.m. when Dharmalingam’s statementwas recorded. This obviously gave the Police officers ample opportunitynot only to concoct a defence to the known facts of the case but also toprevail on Dharmalingam to fall into line, if indeed he had ever intendedto tell the truth. Dharmalingam did not appear to me to be made ofthe stuff that heroes are made of and it is obvious that he would haveto be a very brave man to go counter to his superior officers and continueto work with them at the Jaffna Police Station.” This being his viewof Dharmalingam as a witness, his disbelief of Sub-Inspector Perera,because he was contradicted by Dharmalingam, appears to me illogical.Further, the serious point of contradiction which the learned Magistratehas referred to is the one in regard to the table at which complaints wererecorded and a3 to the conflicting reason given by each of them for gettingthe complainant away from the reserve table. While the 1st accusedstated that complaints were recorded by the Reserve Sergeant at a table
1 (1957) 59 N. L. R. 235.
(1939) 15 O. L. W. 119.
446
SIIWA, J.—Perera v. Naganathan
other than the table at which he sat, Dharmalingam denied this andalthough the 1st accused stated that the ammunition at the ReserveSergeant’s table was not under lock and key Dharmalingam said thatthe drawers were locked and the key was with him. The question atissue to which this evidence related was whether there was a table otherthan the Reserve Sergeant’s table at which complaints were recorded.It has to be borne in mind that even if this was a material contradictionit was on an incidental matter which, though it has a bearing on theoircumstances that led to the alleged assault, does not affect the mainquestion whether the accused assaulted the complainant. Secondly,counsel for the appellant submitted that the 1st accused was speakingto a practice that obtained for years having himself been attached to theJaffna Police for some time while Dharmalingam had been there onlyfor five days and could not have been at the Reserve table for more thanone or two days at the most. Thirdly, he has brought to my noticethat on this crucial matter when the complainant was questioned in cross-examination whether it was not the fact that the 1st accused asked himto go and sit at the table in question and make the statement, he refusedto do so, he gave no answer, the suggestion of the counsel, of course,being that this conduct of the complainant supported the evidence of the1st accused. It would thus appear that while counsel’s submission thatthe Magistrate bas given no reasons whatsoever for his finding is incorrect,because the Magistrate has, in fact, given some reasons, the reasons forthe conclusion and the inferences drawn do not bear scrutiny and theconclusions appear from one point of view to be based on misdirectionson questions of fact. Por, on the evidence there is no justification forholding either that Dharmalingam shaped his testimony to fall in linewith the accused nor that there was an unexplained mala fide delay onthe part of the Assistant Superintendent of Police to record the statmentsof the accused and Dharmalingam which “obviously gave the Policeofficers ample opportunity not only to concoct a defence …. butalso to prevail on Dharmalingam to fall into line ” when such asuggestion was not made even by the prosecuting counsel.
This brings me to the other submission very strongly urged by counselfor the appellants that the adverse conclusion of the learned Magistrateagainst the Assistant Superintendent of Police who recorded the state-ments is most unjustified having regard to the evidence in the case.He has argued with considerable force, that, in fairness to the Policeofficer he should have been given an opportunity, when he was givingevidence, to meet the adverse inferences that were made against himin the course of the judgment by at least a question being asked eitherby the counsel for the prosecution or by the court as to his conduct.On an examination of the evidence of Assistant Superintendent of PoliceSenarath, it would appear that having come to the Station at some stagehe took over the inquiry himself and continued to record the statementsof the complainant which Inspector Marso had started recording.Immediately after he finished the complainant’s statement, at about8.30 p.m. he recorded the statement of the witness Pathmanathan.
SILVA, J.—Ter era v. Naganalhan
447
As there was reference in these statements to persons who were notmentioned by name and who were not known to the deponents, he heldan identification parade at 10.25, presumably, in order to make surewho the assailants were. It should be appreciated that the parade wasan essential prerequisite to the questioning of the alleged assailants, asPathmanathan, the only witness for the complainant, referred to themby description, such as ‘ the dark Inspector ’ and ‘ the person with abanian Pathmanathan’s statement was concluded about 9.30 p.m.and after that the statement of Mr. Navaratnam, Member of Parliament.The Assistant Superintendent of Police then held an identification parade.He next went to the Hospital and after returning from there he recordedthe statements of Inspector Marso, Sergeant Dharmalingam and thereafter,the statements of the two accused around 1 a.m. It is very importantto remember, in regard to the complaint made by counsel for the appellant,firstly, that the Assistant Superintendent of Police must have the basisof the complaint from the complainant’s statement and the supportingevidence and secondly, that the alleged assailants must be either known,to the complainant and the witness and if not known, should be identifiedbefore they can be questioned in regard to the charges. It would,therefore, not be practicable to record the statements of the allegedassailants before theso steps are taken nor would it be useful for someother officer to record simultaneously the statements of those who maypossibly be the assailants. Considering the length of the statementsof the complainant and witness Pathmanathan, it would certainly havetaken some time to record them. Seeing that the steps taken by theAssistant Superintendent of Police were not only correct but necessaryand also considering that Sergeant Dharmalingam’s statement wasrecorded before those of the two accused, can it be said that the AssistantSuperintendent of Police was acting with improper motives to enablethe accused to concoct their defence, particularly, when not one questionwas asked by counsel for the prosecution or by the Judge, directly sug-gesting such improper conduct, in which case, the Assistant Superin-tendent of Police would have had an opportunity of further explainingthe course he took. It also seems to me that the learned Judge’s findingboth against the Assistant Superintendent of Police, that he gave thisopportunity and against Dharmalingam, that he made use of theopportunity of the delay to fall in line with accused’s version, consider-ably loses force when it is found that Dharmalingam made his statementbefore the accused. For, how could Dharmalingam who made hisstatement at 12.25 a.m. fall in line with the statements of the accusedthat were to be made later, unless, of course, one concludes that thistoo was a part of the conspiracy to meet a possible attack of concoctionof an agreed defence which may be directed against the accused at thesubsequent trial. If one always imputes bad faith there would, ofcourse, be no end to such inferences. It must be appreciated thatrecording of each statement, depending on its length, making arrangementsfor an identification parade, conducting such parade and suchother matters necessarily take some time. The only question to consider
448
SILVA, J.—Perero v. Naganathan
is whether having reg xrd to all this and the requirements of the casethere was delay on the part of the Assistant Superintendent of Policewhich could not be explained. I am not able to say that the learnedMagistrate has given his mind to all these aspects nor that he has givenan opportunity to the Assistant Superintendent of Police to meet thegrave charge of dishonesty and partiality implied in his finding beforesuch finding was arrived at. In the circumstances, I am compelledto hold that the facts of the case do not warrant the finding of the learnedMagistrate either against Dharmalingam or against the AssistantSuperintendent of Police.
The final submission of law made by counsel for the appellants was inregard to the leading of the inadmissible evidence of character. Thiswas based on the fact that in re-examination of the complainant by hiscounsel, it was elicited that from the reports he heard, the 1st accusedPerera was one of the Police officers who had conducted himself in a veryunpleasant manner and that he had referred to him in speeches in Parlia-ment. It is submitted that this evidence constituted bad character ofthe 1st accused and that it should not have been led. Counsel who con-ducted the prosecution presumably led this evidence to show motive onthe part of the 1st accused Porera towards the complainant. However,it must be said that this evidence came out in re-examination and didnot arise out of any cross-examination on behalf of the 1st accused. Whilethe fact of the complainant having referred to the accused Perera inParliament could even remotely have been justified on this basi3, thereis considerable substance in the contention of counsel for tho appellantthat the rest of the evidence was objectionable as evidence of badcharacter. I think that the objection is rendered even stronger when thebad character deposed to was derived not from personal knowledge butfrom hearsay, which itself should not find its way into proceedings in court.
Counsel for the respondent has sought to meet this objection by theargument that the mere reception of inadmissible evidence will not vitiatea conviction if there is other evidence to support it and secondly if itcannot be shown that the Judge was influenced by such inadmissibleevidence. He cited section 167 of the Evidence Ordinance and alsocertain decisions of this court in his favour. In the first case cited by him,Aron v. Amarawardene1, Basnayake, J.held that in a case where irrelevantevidence as to character has been admitted it is open to the AppellateCourt to apply the provisions of section 167 of the Evidence Ordinanceand uphold the verdict if there is sufficient admissible evidence to justifyit. Basnayake, J. referred in his judgment to various cases in whichdifferent views were taken on this matter and the two decisions on whichhe appears to have relied for his own view wero Stirland v. Directorof Public Prosecutions2 and King v. Pila3. In the former, the House ofLords did not interfere with a conviction in a case where apart altogetherfrom the impeached evidence there was an overwhelming case provedagainst the accused. In the latter, Lascelles, C.J., observed that there
* (1944) 2 All England Law Reporta, page 13.
* (1912) 15 N. L. R. 453.
1 (1948) 49 N. L. R. 167.
SILVA, J.—Perera v. Naganaihan
449
was no question but that the Appellate Court, under section 167 of theEvidence Ordinance, has power to uphold a conviction if it was of opinionthat the evidence improperly admitted did not affect the result. Theother care cited by counsel was that of King v. Perera1, in which a Benchof two Judges decided that evidence of bad character of the accused givenin a trial before a District Court is not fatal to a conviction if there isother evidence to convict the accused and if there i3 nothing toindicate that the District Judge was influenced by the irrelevant evidence.It would, therefore, appear that in Stirland v. Director of Public Prosecutionsthere was an overwhelming case prov d against the accused on theinadmissible evidence and in the case of King v. Perera the concludingsentence shows that the District Judge convicted the accused on ampleadmissible evidence and there was nothing to show that the Judge wasinfluenced by the inadmissible evidence. Where, however, the otherevidence is by no means overwhelming nor abundant and is unsupportedby ary independent circumstance and where there is no indication bythe Judge that he has not been in any way influenced by the inadmissibleevidence and the matter is left in a state of doubt and where' there isalso a larger volume of evidence for the defence which is worthy of note,different considerations would apply.
In this case the facts are admitted by both sides up to a point and thequestion of the probability or improbability of the 1st accused assaultingthe complainant is the vital issue. The admission of this item of inadmis-sible evidence, therefore, which is irrelevant in two ways—hearsay andbad character—has to be given considerable weight, particularly in view ofthe observations in the judgment regarding the discourteous treatment of thecomplainant by the 1st accused and the necessity for the Police officersto show the utmost courtesy to a Member of Parliament. One cannot,in these circumstances, say with certainty, in the absence of an indica-tion to the contrary by the Magistrate, that his knowledge that the 1staccused was a man who had been accused in Parliament for conductinghimself in a very unpleasant manner—which accusation is aggravatedas it is based on hearsay and may well have been without foundation—did not even unconsciously colour his approach to the vital point thathad to be decided in the case. The 1st accused should, in my view,have the benefit of this possible and even likely prejudice. It is in thisconnection that the pronouncement of de Kretser, J., in the case citedearlier will directly apply.
In regard to all these three matters raised by the appellants, namely,improper use of the Police statements, reception of evidence of badcharactor of the 1st accused and the inadequacy of the reasons of theMagistrate for his conclusions, counsel for the respondent has stronglyurged me to consider that the decision is by a Judge of grea^ experiencewho must be presumed to have been able to steer clear of these difficultieseven if the irregularities may be technically present. While I appreciatethe force of this argument and will attach great weight to the findings ofthe trial Judge, it is also necessary for this court to look at the question
1 (1941) 42 N. L. R. 526.
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SILVA, J.—Perera v. Naganathan
objectively from the point of view of the accused and to be cautiousbefore drawing such presumptions in the absence of material as wouldhave the effect of tilting the case against the accused.
For the above reasons, two out of the three points of law raised bycounsel have to be resolved, in my judgment, in favour of the appellantsand, in regard to the third point, although I do not accept counsel’s con-tention, I hold that the reasons given by the Magistrate do not bearexamination. The finding of the learned Magistrate has, therefore,perforce to be set aside on these grounds of law.
If these were the only criticisms of the judgment I would have beeninclined to consider seriously whether there should not be a fresh trialin this case. Counsel for the appellants has argued that, apart fromquestions of law, the finding of the learned Magistrate cannot be sustainedeven on the facts and that there is abundant reason for this court tointerfere with the decision. He cited in support the case of MartinFernando v. Inspector of Police, Minuwangoda1, in winch it was heldthat an Appellate Court is not absolved from the duty of testing theevidence in a case both extrinsically and intrinsically although the deci-sion of a Magistrate on questions fact based on the demeanour and credi-bility of witnesses carries great weight and that where a close examinationof the evidence raises a strong doubt as to the guilt of the accused, heshould be given the benefit of the doubt. That was a case in whichevidence had been led both for the prosecution and the defence and theMagistrate gave reasons for the acceptance of the prosecution evidenceas well as for his rejection of the defence. Wijeyewardene, J. proceededto examine the reasons and went on to say in the judgment:—“ T do notsee any reason for disbehoving the evidence of accused or (his witness)Charles. Nor am I impressed by the reasons given by the Magistratefor rejecting the defence.” For the view in regard to the duty of theAppellate Court to test the evidence he also relied on the case of King v.Fernando 2. In the course of his judgment in this case, Akbar, J. citedthe case of Milan Khan v. Sagai Bepari3, which he followed. The dictumin that case clearly set out the difference in the approach that should bemade by an Appellate Court in a civil and criminal case. While in acivil case the court must be satisfied before setting aside the order of thelower court that the order was wrong, in a criminal case, if the Judge ofthe Appellate Court has any doubt that the conviction is a right one theaccused should bo discharged. Counsel for the respondent, however,cited several cases in support of his submission to the contrary, namely,that this court should not disturb a finding of fact arrived at by the trialJudge who has had the advantage of hearing the witnesses and watchingtheir demeanour. He relied strongly on the case of Watt v. Thomas*, inwhich it was held that when a question of fact has been tried by a Judgewithout a Jury and there is no question of misdirection of himself bythe Judge, an Appellate Court which is disposed to come to a different
1 (1945) 46 N. L. R. 210.
* (1930) 32 N. L. R. 251.
8 23 A. 1. R. Calcutta 347.* (1947) 1 A. E. R. 582.
SILVA, J".—Perera v. Nagcmathan
451
conclusion in the evidence should not do so unless it is satisfied that anyadvantage enjoyed by the trial Judge by reason of having seen and heardthe ■witnesses could not be sufficient to explain or justify the Judge’sconclusion. Counsel drew my attention to the observation of the LordPresident, Viscount Simon, in this case, in the course of which he saidthat if the evidence as a whole can reasonably be regarded as justifyingthe conclusion arrived at at the trial and especially if that conclusion hasbeen arrived at on conflcting testimony by a tribunal which saw and heardthe witnesses, the Appellate Court will bear in mind that it has not enjoyedthis opportunity and that the view of the trial Judge as to where credi-bility lies is entitled to great weight. The Lord President, however,went on to qualify this statement when he observed, “ This is not to saythat the Judge of first instance can be treated as infallible in determiningwhich side is telling the truth or is refraining from exaggeration. Likeother tribunals he may go wrong on a question of fact but it is a cogentcircumstance that a Judge of first instance, when estimating the value ofverbal testimony, has the advantage (which is denied to courts of appeal)of having the witnesses before him and observing the manner in whichthe evidence is given …. I would only add that the decision of anAppellate Court whether or not to reverse conclusions of fact reachedby the Judge at the trial must naturally be affected by the nature andcircumstances of the case under consideration.” These are observationswith which I respectfully agree and even though the observations weremade in respect of a civil case I think that they are no less applicable evenin a criminal case and would be most useful to a Judge of appeal whoshould, however, never overlook the essential difference in the burdenof proof in a civil and a criminal case. While in a civil case a Judge ofappeal is making use of this principle to decide whether the trial Judge’s'preference for one version was justified, in a criminal case the Judge ofappeal has to decide whether the trial Judge’s assessment of the evid3ncewas sufficient to establish the prosecution case beyond reasonable doubt.Counsel for the respondent also referred me to an unreported case,S. C. 918/M.C. Kuliyapitiya, 18416 (S.C. Minutes of 21.2.1964), in whichSri Skanda Rajah, J., quoting in support a dictum of Lord Justice Den-ning in the case of Griffiths v. Harrison1, refused to interfere with thotrial Judge’s decision on a question of fact. The important words ofLord Justice Denning which Sri Skanda Rajah, J. quoted were “ Butthere comes a point when a Judge can say that no reasonable man couldreasonably come to that conclusion. Then, but not till then, is he entitledto interfere.” On a reading of Lord Justice Denning’s judgment, how-ever, it would appear that this pronouncement was made not on thequestion whether a finding of fact should be interfered with but on aquestion of law whether on the proved facts the inference could reasonablybe drawn, the case under consideration being one in which there was aright of appeal only on a question of law. In other words, the courtof appeal was called upon to decide whether a certain finding of fact was” erroneous in point of law ”. The dictum in this case, therefore, wouldnot apply to the question under consideration in the instant case.
1 (1962) 1 A. E. R. 916.
452
SILVA, J.—Perera v. Naganathan
The substance of all those decisions is that the court of appeal willnot lightly interfere with a finding of fact by a Magistrate but wherethere is good ground to do so in the circumstances of the case or wherethe judgment of the lower court is unsound not merely has this court theright but it is under a duty to reverse such finding. The last case citedby counsel for the appellant in further support of this view is that ofKing v. Eliatomby1, where Abrahams, C. J., disturbed a finding of factby a District Judge observing that where there is a mixture of truth andfalsehood on both sides, it has to be remembered that the burden of proofis on the prosecution and that the dofonco has to prove nothing beyondwhat is necessaiy to instil a reasonable doubt in the view of the court.
In the instant case what are the items of evidence that the Migistratehad before him ? On the side of the prosecution there was the evidenceof the complainant supported by one witne33, Pathm raathan, who wa3materially contradicted by his own statement to the Police in regard tothe 2nd accused. Having stated to the Police that he did not see anyoneexcept the dark Inspector (the 1st accused) assaulting the complainant,he stated to court that the 2nd accused with bis right hand gave a blowon the forehead of the complainant. This serious contradiction mustnecessarily diminish the value of this evidence even as against the 1staccused and would shake one’s confidence in the prosecution case, moreparticularly as against the 2nd accused, seeing that he took no part atall even in the argument between the complainant and the 1st accused,which preceded the assault. The prosecution derives no support fromany independent circumstance such as any injuries on the complainantdespite four blows from two young Sub Inspectors in the region of theforehead. As against this there is the defence case put forward by the1st accused h.'m -elf who denied any assault, supported strongly inmaterial particulars by the evidence of Sergeant Dharmalingam with anunblemished record of 27 years service in the Police and having nothingin common with either of the accused, and also deriving indirect circum-stantial support from the absence of injuries on the complainant to bearout an assault. As I stated earlier the main reason of the learned Magis-trate for his disbelief of Dha:milingim is the deliberate delay on thepart of the Assistant Superintendent of Police in recording the statementsof the Police officers in order to give an opportunity to concoct a falsedefence. In view of my holding that the learned Judge has misdirectedhimself on this issue, I am constrained to say that the rejection of Dharma-lingam’s evidence is not based upon sound reasoning. But for this mis-direction the learned Magistrate would have been faced with the oraltestimony of the complainant unsupported by any other reliable oralevidence or any item of circumstantial evidence, against the testimonyof the 1st accused and his witness Dharmalingam who had no interest inthe 1st accused, belonged to a community different from the 1st accused,had an untarnished record of service in the Police, had been in the JaffnaPolice Station only for five days, and gave his evidence in court long afterthe accused had been transferred out of the Jaffna Police Station, where
i (1937) 39 N. L. R. 53.
SILVA, J.—Per era v. Naganathan
453
had they remained up to that time, some semblance of influence overDharmalingam may even have remotely been suggested. This evidenceof the defence together with any inference to be drawn from the absenceof any circumstantial support for the prosecution story would surely haveleft the learned Magistrate in reasonable doubt in regard to the prosecu-tion case, without necessarily going so far as to reject the testimony ofthe complainant, and the accused would then have been entitled to anacquittal. No wanton attack by the accused on the complainant beingever suggested, and there being no trace of any injury, is it not possiblethat, when the 1st accused forcibly removed the complainant from thestool at which the latter was not entitled to sit and the complainantresisted, the accused’s hands struck the forehead of the complainant inthe course of the ensuing struggle and the complainant honestly believedthat he was assaulted and stated in evidence what he believed to be true.
There is one final aspect of the case, relating to the burden of proof,which, when considered from one angle, goes to the root of this case andaffects the correctness of the conviction. Even though neither counsel hasraised the question, I feel it is of fundamental importance. The judgmentshows that what the learned Magistrate stated after setting out the factswas, “ I have no hesitation at all in preferring the doctor’s version to thatof Sub-Inspector Perera In a criminal trial in which the case againstthe accused must be proved beyond reasonable doubt, it is not sufficientfor a Judge to express a preference for the prosecution version. Theconcept of preference of one version to another based on a preponderenceof evidence or a balance of probability essentially arises only in a civilcase, or in a criminal case where the burden has been shifted on theaccused to prove certain circumstances according to law. But where nosuch obligation is cast on the accused and a Judge is considering the ques-tion whether a case against the accused has been established by theprosecution it is incumbent on him to scrutinise the evidence for theprosecution and the defence carefully and not merely to have a preferencefor the prosecution version but to be satisfied beyond reasonable doubt.For, implicit in an expression of preference is a reasonable doubt. I amfortified in this view by the opinion expressed by Sir Sidney Abrahams,C.J., in the 39 New Law Reports case which has already been referredto earlier in another connection. After enumerating the facts he went onto say, “ The learned District Judge said that the first question is whetherthe fight took place in the circumstances alleged by the defendants. Hesays thatthe story of the genesis of the quarrel, as told by the prosecution,is very much more likely than that told by the defence. Then he says,‘ On the evidence and the probabilities of the case, I am inclined to thinkthat it was the accused party who were the aggressors and who wentand created a disturbance in the complainant’s house ’, and he says finally,* The chief question is whether the accused were the aggressors or whetherthey were waylaid by the complainant’s party and assaulted by them.As I said before, on the evidence and the probabilities of the case, I think
454
Ismail v. Ramalingatn
there can be no doubt that it was the accused who went to the complai-nant’s house and created a disturbance ’. It appears to me thatthe learned District Judge overlooked the burden which lay upon theCrown to prove its case beyond all reasonable doubt, and was ratherinclined to consider a balance of probabilities between two conflictingstories.”
In view of all the reasons stated above the convictions of theaccused cannot be allowed to stand. I, therefore, allow the appeal ofthe 2nd accused and set aside his conviction and sentence and acquit him,and, in the exercise of my powers of revision, I set aside the convictionand sentence of the 1st accused and acquit him.
Convictions of 1st and 2nd accused set aside.