049-SLLR-SLLR-2005-V-3-GODAKANDA-vs.-ATTORNEY-GENARAL.pdf
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CAGodakanda Vs Attorney-General (Eric Basnayake, ll.)
GODAKANDAVSATTORNEY-GENERALCOURT OF APPEAL.
BALAPATABENDI, J.
BASNAYAKE, J.
CAPHC 194/05 (APN).
HC COLOMBO 2/904/2002.
SEPTEMBER 9, 27, 2005.
Penal Code-sections 102, 415-lndicted-Re-examination of witness-Ap-plication made by the prosecution to forward the questioned writing toEQD-ls it permissible ?- Evidence Ordinance, section 73-Methods ofproving handwriting of a person- Proof by opinion ?
The trial Judge allowed the application of the prosecution made atthe re-examination of the 4th witness to forward the questioned writingto the Examiner of Questioned Documents (E.Q.D.)
The accused-appellant moved in Revision.
It was contended that the High Court has no power to refer the writ-ings to the EQD, such an order could only be made by a Magistrate at theinvestigation stage.
HELD:
Our law recognizes two direct methods of proving the handwrit-ing of a person :
by an admission of the person who wrote it ;
by the evidence of some witness who saw it written.
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There are also three other modes of proof by opinion namely-
by the evidence of a handwriting expert (section 45)
by the evidence of a witness acquainted with the handwrit-ing of the person who is said to have written the writing inquestion (section 47)
opinions formed by Court on comparison made by itself(section 73).
The High Court Judge was right in referring the disputed writingto the EQD for examination and report. Whatever opinion theEQD may express, it is for the Judge to decide the author of thedisputed writings.
APPLICATION in Revision from an order of the High Court of Colombo.Cases referred to :
State vs. Pali Ram – AIR 1979 SC 14 at 20.
Mailvaganam vs. Kandiah (1964) 66 NLR 427
Hira Lai Aggarawatte vs. State – AIR (1958) at 133
Kishore Singhe Deo vs. Prasad – AIR (1954) SC, 316
State vs. Paliram – AIR (1979) SC 14
Barendra Kumar Gosh vs. Emperor (1909) 11 Cr. LJ 453
R vs. Harvey (1989) 11 Cox cc 546
In Re Tilley (1961) 45 CrApp R 360
In Re Simith (1968) 52 or App R 848
In the O'Sullivan (1969) 2 ALL ER 237
In Re Simbodyal – The Times October 10 – 1991
In Re Jurner (1975) 1 QB 834
Kessarbai vs. Jethabai – AIR (1928) PC 277 at 281
Vander Hullsz vs. Attorney General 1988 2 Sri LR 414
R vs. Perera 57 NLR 449
Thuraisamy vs. Queen 54 NLR 449
Godakanda Vs Attorney-General (Eric Basnayake, J.)
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CA
Ranjith Abeysuriya, PC with Anil Silva and Dina! Phillips for petitioner.Buwaneka Aluvihare, SC for Attorney-General.
Cur. adv. vult.
October 3, 2005.
ERIC BASNAYAKE, J.The accused petitioner (hereinafter referred to as the accused)was indicted in the High Court of Colombo for committing an offencepunishable under section 455 read with section 102 of the PenalCode for aiding and abetting to alter the original entry called "Vensil"to Apsara Venivel” in a document maintained by the Director of Intel-lectual Property. The indictment dated 23.5.2002 was handed overto the accused on 23.6.2002. The trial having commenced .once be-fore, started.de novo on the application of the learned Counsel forthe accused on 22.6.2005. The court having completed the evidenceof three witnesses called the 4th witness and at the re-examinationof the 4tn witness, an application was made by the prosecution toforward the questioned writing marked P2 () (1) along with the speci-men to the Examiner on Questioned Documents to compare andreport. This was objected to by the defence. Anyhow this applica-tion was allowed by the learned,High Court Judge. The accused inthis application is seeking to revise the order of the learned HighCourt Judge dated 24.6.2005 on the grounds that:
The order is bad as it was made after the trial had com-menced.
Three years lapsed after the filing of the indictment.
2-CM7225
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The order permitted the prosecution to seek to remedy aweakness in its case.
No investigations can be permitted at this stage.
Undue delay that would occur in concluding the trial wouldprejudice and inconvenience the accused.
When this case was called to support on 9.9.2005, the learnedSenior State Counsel objected to the notice being issued on theAttorney General.
The indictment in this case is based on the entry marked P2(1) (The main document being marked P2 and the relevant pagecontaining the questioned entry No. 82287 marked P2. The 4thwitness, namely, Mawanedasilage Princy, admittedly made entriesin this register. The disputed entry had been made against the entryNo. 82287 in the column under the heading for “short particulars".The entry as it appears at present is as follows
APSARA
VENiVEI
The witness Princy claimed responsibility for writing the letters“VEN” on the second row. She said the other letters, namely,APSARA/VE1, were interpolated by someone else. She categori-cally denied to having written the letters other than the three lettersnamely VEN. She did not say anything about the “1” which is foundin the cage. Neither was she questioned about it by anyone. Undercross examination she had not changed her position. She said thatshe could not describe the similarities between the other letters shehad written on the same page with that of the letters in the disputedwriting.
CAGodakanda Vs Attorney-General (Eric Basnayake, J.)297
Section 73 of the Evidence Ordinance is relevant which is asfollows :-
73 (1) In order to ascertain whether a signature, writing or sealis that of the person by whom it purports to have been writtenor made, any signature, writing, or seal admitted or proved tothe satisfaction of the court to have been written or made bythat person may be compared with the one which is to beproved, although that signature, writing, or seal has not beenproduced or proved for any other purpose.
The court may direct any person present in court to writeany words or figures for the purpose of enabling the court tocompare the words or figures so written with any words or fig-ures alleged to have been written by such person.
Sakaria J. states in State vs. Pali Ramw that "just as in En-glish Law the Indian Evidence Act (which is identical to ourEvidence Ordinance) recognises two direct methods of provingthe handwriting of a person :
By an admission of the person who wrote it.
By the evidence of some witness who saw it written.
These are the best methods of proof. These apart thereare three other modes of proof by opinion. These are :-
By the evidence of a hand writing expert (section 45)
By the evidence of a witness acquainted with thehandwriting of the person who is said to have writ-ten the writing in question (section 47)
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Opinion formed by the court on comparison madeby itself (section 73)
All these three cognate modes of proof involve a process ofcomparison. In mode (1) the comparison is made by the expert ofthe disputed writing with the admitted or proved writing of the personwho is said to have written the questioned document. In (2) thecomparison takes the form of a belief which the witness entertainsupon comparing the writing in question, with an exemplar formed inhis mind from some previous knowledge or repetitive observance ofthe hand writing of the person concerned. In the case of (3) thecomparison is made by the court with the sample writing or exemplarobtained by it from the person concerned” (emphasis added).
The learned counsel for the accused submits that the order of thelearned Judge would cause grave prejudice to the defense due tothe reason that the calling of expert opinion at this stage springssurprise on the defense. The learned Senior State Counsel submitsthat it is the unfair questioning of the defense counsel that promptedthe prosecuting counsel in to making this application. Whileexamining the evidence of this witness it appears that under crossexamination this witness only confirmed what she said inexamination-in-chief. She firmly stood by her evidence and admittedthe three letter's, namely, VEN were written by her and denied thatshe wrote the word APSARA and the letters VEI. She could not givethe similarities and the differences between the disputed letters andthe letters she had written elsewhere in that document.
It may not be pertinent to ask a witness to describe the similaritiesand the differences between the disputed writing and the admitted
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Godakanda Vs Attorney-General (Eric Basnayake, J.)
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writing. One can identify his or her own hand writing, but it is onlyan expert who is qualified to speak of the similarities and differences.It is these questions that led the prosecuting counsel to make anapplication to submit the writing to the E. Q. D. for examination andreport. The learned Judge too would have thought of seeking a thirdopinion as a precautionary measure. Whatever opinion the E. Q. D.may express it is for the judge to decide the author of the disputedwritings.
How could the accused be prejudiced ? It is the prosecution casethroughout that the disputed writing was not written by the witness.The prosecution brought the best evidence to prove it. The witnessdenied the disputed writing in evidence. Therefore how could anyreference to the E. Q. D. prejudice the accused ? If at all it is theprosecution that would suffer in the event the E. Q. D. identifiessimilarities.
The learned Counsel for the accused submits that the High Courthas no power to refer the writing to the E. Q. D. He submits that anorder could be made only by a Magistrate at the investigation stage.In Mailvaganam Vs. Kandiah{2) Alles J referring to section 73 statesthat “The words of the section are very wide and give the court thepower to compel any person present in court, including an accusedperson, to give a specimen of his hand writing for the purpose ofenabling the court to compare the handwriting of the suspect withthe impugned writing”. Section 73 entitled the court to assist itselffor a proper conclusion in the interest of justice. Hira lal AggarwallarV. State <3). This section empowers any trial judge to direct anyperson present in court to write any words etc., for the purpose ofcomparison by the Court. From persons present in Court only during trial.
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Persons are not brought to court by the police during the investigationstage to take down hand writings.
It has been decided in a number of cases that it is more appropriateif this comparison is done by experts. Kishore Singh Deo vs. Prasad<*>,State vs. Paiiram{5), Barendra Kumar Gosh vs. Emperor(6), R vs.HarveP), Tilley<8,1 Smith{9 ' Sullivan(,0) Simbodyall"K Fumed'2> InKessarbai vs. Jethabai('3) Lord Atkin observed “But their Lordshipsare unable to come to the same conclusion as the members of theAppellate Court. They would have thought it unsatisfactory anddangerous in any event to stake a decision in such a case as thison the correct determination of the genuineness of the signature bymere comparison with admitted signatures, especially without theaid of evidence of microscopic enlargement or any expert advice."
Therefore I am of the view that the learned High Court Judge wasright in referring the disputed writing to the E. Q. D. for examinationand report.
The learned Counsel for accused mentioned the cases of VanderHultsz vs. The Attorney Generall'4 R. vs. M. S. Perera('5) andThuraisamy vs. Queen<16) I am of the view th at these cases have norelevance to the present application. Due to the aforesaid reasons Iam of the view that there is no merit in this application to issuenotice on the Attorney General. Therefore notice is refused.
BALAPATABENDI J.—/ agree.
Notice refused.
Application dismissed order of the High Court Confirmed.