JAGATHSENA AND OTHERSv.
D. D. PERERA, INSPECTOR, CRIMINAL INVESTIGATIONDEPARTMENT AND MRS. SIRIMAVO BANDARANAIKE(AGGRIEVED PARTY)
COURT OF APPEALRANASINGHE, J. (P/C.A.) ANDTAMBIAH, J.
M.C. HATTON 18725
23, 24, 29 JUNE AND
01, 02, 12, 19, 20 AND 21 JULY 1982.
Criminal Law – Right of Appellate Court to review findings of fact of original court- Expert evidence – Evidence Ordinance, section 45 – Can prosecution canvassfindings of Magistrate in favour of the defence in Appeal Court without priornotice? – Right of Court of Appeal to look into witnesses statement to the police totest version of witness – Unlawful assembly – Common object – CriminalProcedure – Sections 110, 260, and 261 of the Code of Criminal Procedure ActNo. 15 of 1979 – Right of aggrieved party to appear and be heard by attorney-at-law- Judicature Act No. 2 of 1978, section 41.
Although the findings of a Magistrate on questions of fact are entitled togreat weight, yet it is the duty of the Appellate Court to test, both intrinsically andextrinsically, the evidence led at the trial. If after a close and careful examinationof such evidence, the Appellate Court entertains a strong doubt as to the guilt ofthe accused, the Appellate Court must give the accused the benefit of suchdoubt.
Under section 43 of the Evidence Ordinance, opinions of persons speciallyskilled in, inter alia, science or art or in questions as to identity or genuineness ofhandwriting are relevant facts. It is the duty of the Court itself to form an opinionupon questions in respect of which the expert gives evidence. In doing so, thecourt should, however, take into consideration such expert opinion. The functionof the expert is to assist, with his expert knowledge arid experience, the court inarriving at a finding upon the particular matter.
It is not open to the prosecution to seek to canvass before the AppellateCourt findings of the Magistrate which are in favour of the defence. Theprosecution has such right, at any rate without prior notice to the appellant.
It is permissible for the court to look .into a witness’s statement to the Policemarked in the case for the purpose of seeing whether the particular witness hadtold the Police a story materially different from the story set out in his evidence atthe trial, for instance by omitting to mention a material fact deposed to at the trial,(section 110 of Code of Criminal Procedure Act).
The mere presence of a person in an assembly does not render him amember of an unlawful assembly, unless it is shown that he said or did somethingor omitted to do something which would make him a member of such unlawfulassembly. The prosecution must place evidence pointing to each accused havingdone or said something from which the inference could be drawn that eachentertained the object which is said to be the common object of such assembly.Omnibus evidence must be carefully scrutinized to eliminate all chances of falseor mistaken implication as the possibility of persons in an assembly resenting orcondemning the activities of misguided persons cannot be ruled out and cautionhas to be exercised in deciding which of the persons present can be safelydescribed as members of the unlawful assembly. Although as a matter of law anovert act is not a necessary factor bearing upon membership of an unlawfulassembly, yet, it is safer to look for some evidence of participation by eachperson alleged to be a member before holding that such person is a member ofthe unlawful assembly, lest innocent persons be punished for no fault of their's.The common object of an assembly is an inference from facts to be deducedfrom the facts and circumstances of each case. The common object can becollected from the nature of the assembly, the arms used by them, the behaviourof the assembly at or before the scene of occurrence, and subsequent conduct.The common object must be readily deducible from the direct as well ascircumstantial evidence, including the conduct of the parties. It is not sufficientfor such evidence to be consistent with such an inference, but must be the onlyconclusion possible. Merely because the specific offence with which the unlawfulassembly is charged is not proved, it does not mean that the common object ofthe unlawful assembly should be held to be non-existent. In order, to find thecommon object of an unlawful assembly at the beginning, it is not a legitimatemethod merely to take all the actual offences committed by it in the course of theriot and to infer that all these were originally part of its common object. Theconclusion must normally be based on more evidence than the mere actsthemselves.
The Magistrate omitted to examine several matters in the evidence led for theprosecution. A close examination of the evidence raises strong doubts about thecorrectness of the convictions of the accused.
(a) The right granted to an “aggrieved party”,by section 260 of the Codeof Criminal Procedure Act No. 15 of 1979 to be represented in court extends to
representation even before the Court of Appeal when such Court hears an appealfrom a Magistrate’s Court.
The right of representation is clearly the right to make either on one’sown behalf or on behalf of another, statements or submissions to another, eitherorally or in writing in regard to any matter or thing with a view to influencing theaction or conduct of that other. It does not connote merely a silent and aninarticulate presence. An attorney-at-law is one who is a member of a profession,the chief characteristic of which is to plead on behalf of one who has to placematters before another. He is trained and skilled in the art of doing so; and he isheld out as one entitled to assist and advise clients and to appear, plead or actbefore a court of law. The presence of such a person before a court of law wouldbe meaningless if he is merely to be seen and not heard.
Sections 41(1) and (2) of the Judicature Act, No. 2 of 1978 cannot beconstrued to mean that the right to address Court is given only to an attorney-at-law who appears for a party who has or claims to have the right to be heard. Theprovisions of this section support the proposition that the right of representationcarries with it the right to address court and this right to address court is in noway dependent upon the- right in the person, whom the attorney-at-law sorepresents, to' be heard. That to represent another in court carries with it the rightto make submissions on behalf of another also finds support in the provisions ofsubsections (1) and (2) of section 261 of the Code of Criminal Procedure Act.There is no difference as far as the right to address court is concerned betweenthe right granted to be heard and the right granted to be represented under theprovisions of the Code of Criminal Procedure Act, No, 15 of 1979. They bothconnote a right to address court,
Per Ranaeinghe J. “The right given by the provisions of section 260 of the Code ofCriminal Procedure Act of 1979 to an ‘aggrieved party’ is one given for the firsttime in the history of criminal procedure of this country. The intention of thelegislature seems clearly to be to give the ’aggrieved party' also an opportunity ofplacing before court any relevant matters which such party desires to bring to thenotice of Court.”
Cases referred to:
The King v. Fernando 32 NLR 250,252.
Martin Fernando v. The Inspector of Police, Minuwangoda 46 NLR 210.
King v. Gunaratne etai. 41 C.L Rec. 144.
Sangarakkita Thero et al. v. Buddharakkita Thero 39 CLW 89.
Perera v. Alaganathan 66 NLR 438.
Regina v. Pinhamy 57 NLR 169.
Charles Perera v. Motha 65 NLR 294.
Gratiaen Perera v. The Queen 61 NLR 522.
Fernando v. The Queen 76 NLR 265.
Mutubanda v. Th8 Queen 73 NLR 8.
Land Reform Commission v. Grand Central Ltd. SC 36 – 37/81 – C.A.-, L.A.Appeal 20 of 81; S.C. Minutes of 16.9..81.
APPEAL from judgment of the Magistrate’s Court of Hatton.
S. J. Kadiragamar, Q.C. with Raja Dep for 1st and 2nd accused-appellants.
S. L. Gunasekera with R. J. de Silva for 3rd and 4th accused-appellants.
Mark Fernando with Raja Dep for 5th accused-appellant.
A. H. C. de Silva, QC with Dunstan de Alwis and M. S. M. Nazeem for 6thaccused-appellant.
S. W. B. Wadugodapitiya, Additional Solicitor-General with C. R. de Silva, S.C. (on23 and 24 June 1982) and thereafter with Joe Perera S.C. for complainant-respondent.
v. s. A. Pullenayagam with Falsz Musthapha, Miss Deepali Wijesekera and MissMangalam Kanapathipillaiior “aggrieved party" (Mrs. Sirimavo Bandaranaike)
Cur. adv. vult.
(Note by Editor, The Supreme Court upheld this judgment by its judgmentreported in  2 Sri LR 397).
31st August, 1982.
RANASINGHE, J. (PRESIDENT):
The six accused-appellants stood charged before the Magistrate’sCourt of Hatton on four counts which, briefly were: that, on 13.5.1979,at Dickoya they, along with others, were members of an unlawfulassembly the common object of which was to intentionally insult Mrs.Sirimavo R. D. Bandaranaike and thereby committed an offenceunder Section 140 of the Penal Code; that one or more of themembers of the said unlawful assembly did, intentionally insult thesaid Mrs. Sirimavo R. D. Bandaranaike by using the words, set out incount 2, which said offence was committed in prosecution of the saidcommon object of the said unlawful assembly or was such as themembers of the said unlawful assembly knew to be likely to becommitted in prosecution of the said common object and that theybeing members of the said unlawful assembly at the time of thecommitting of such offence are guilty of an offence under Section 484of the Penal Code read with Section 146 of the Penal Code; thatthey did also in prosecution of the said common object of the saidunlawful assembly commit mischief by causing damage to theamount of Rs.1987/- to the jeep, bearing distinctive number31 § 1294, belonging to the said Mrs. Sirimavo R. D. Bandaranaike,and that they are thereby guilty of an offence under Section 410 ofthe Penal Code read with Section 140 of the Penal Code; that inrespect of the said act of mischief they are also guilty of an offenceunder Section 410 of the Penal Code read with Section 32 of the PenalCode.
The learned Magistrate has, after trial, found all six accused-appellants guilty on counts 1 (Section 140) and 2 (Section 484 readwith S. 146), and not guilty on counts 3 and 4 (Section 410 read withSections 146 and 32). The 1st, 2nd and 5th accused-appellants havebeen convicted on the said counts, and each has been finedRs. 250/- on each of the two counts. The 3rd accused-appellant, whois the .18 year old son of the 1st accused-appellant and was astudent at that time has been warned and discharged. The 4thaccused-appellant, who is the wife of the 1st accused-appellant andthe mother of the 3rd accused-appellant, and the 6th accused-appellant have .also been warned and discharged and each directedto pay Rs. 250/- as State costs.
The case' for the prosecution briefly is thafbn 12.5.79, the virtualcomplainant, Mrs. Bandaranaike who has also been representedbefore this Court as the “aggrieved party", arrived in Hatton toparticipate in several propaganda meetings of her party in that area:that she spent the night of the 12th of May at the Upper GlencairnBungalow, which has been described as a tourist bungalow, fourmiles from Hatton, along with those who had accompanied her fromColombo, inter alia, Kamala Ranatunga, D. G. Jayasinghe, R. K.Chandrasena, Tilak Liyanage, V. A. Simon Singho, – and all of whoalso gave evidence at the trial: that on the 13th of May too Mrs.Bandaranaike did, after participating in party propaganda meetings,come back to the said Bungalow to spend the, night: that, at about8 – 8.30 p.m. Mrs. Bandaranaike had her dinner and retired to herroom which she shared with Kamala Ranatunga: that the othermembers of her entourage occupied other rooms in the Bungalow:that about 9 p.m. the front door of'the Bungalow was closed: thatabout 10-15 minutes thereafter about 3-4 vehicles, with their hornsblaring forth, came on to the premises: that those who came in thosevehicles knocked on the front door stating that the A.S.P. and the
Q.I. have come: that, when the door was opened, about 10persons entered the Bungalow: that the first to enter was the 1staccused: that, as he was so coming in, the 1st accused inquired, inwords which were both obscene and insulting, whether Mrs.Bandaranaike was there: that the 1st accused asked the manager ofthe Bungalow for whisky, who then called for his assistantMunaweera: that, when Munaweera said there was no whisky, the2nd accused held Munaweera by his throat: that thereafter several ofthose who came, and amongst whom were also several ladies, wentinto the sitting-room whilst several others went along the corridor tothe kitchen: that thereafter those who came were served liquor andthey consumed such liquor inside the sitting-room: that, at the timethey were so partaking of liquor, those who had come in were all inone group: that they began to sing whilst consuming liquor: that theysang songs, which were obscene and were also defamatory of bothMrs. Bandaranaike and her son Anura Bandaranaike: that in thegroup that was so singing were all the six accused and about threeothers: that whilst they were so singing Kamala Ranatunga did, onthe instructions of Mrs. Bandaranaike, copy down from inside the
room in which the two of them were, on two sheets of paper, whichKamala Ranatunga took, at the request of Mrs, Bandaranaike, fromMrs. Bandaranaike’s bag, the words so sung by accused: that P2and P2A are those two sheets of paper: that, after she so recordedthose words in P2 and P2 A, Kamala read them out from P2 and P2 Ato Mrs. Bandaranaike, who herself thereafter read P2 and P2A thatnight itself, in their room: that the singing went on till about 11 p.m.:that in the meantime witness Simon Singho, Mrs. Bandaranaike'sdriver, proceeded on foot to Hatton Police and made a complaintwhich was produced at the trial marked P1: that, at about 11 p.m.,consequent upon an appeal made to Munaweera by Jayasinghe,Munaweera asked those who were singing to leave: that about 10 -15 minutes thereafter they all left the Bungalow in small groups: thateven after they had been asked to leave the 1st accused used adefamatory word: that after they had all left the Bungalow and hadgot on to the compound, they had shouted for Mrs. Bandaranaike’svehicles to be removed to enable them to go: that the 1st, 2nd, and5th accused had tried to push Mrs. Bandaranaike’s jeep this way andthat way: that thereupon the 3rd accused appealed to his father the1st accused to leave saying, “zaosfea) «f8 e@©3 2adste>diB zajcojcn© fj>8 cog”: that there was then an incident between thefather (1st accused) and the son (3rd accused) in which the 1staccused had whipped out a revolver threatening to shoot the 3rdaccused: that the 4th accused (the wife of the 1st accused) and theother ladies had thereupon pushed these accused into the cars, andthey had then all gone away: that, after the accused went away, twoPolice officers of the Hatton Police Station arrived at the Bungalow:that the witnesses Jayasinghe and Chandrasena were taken by thesePolice Officers to the Hatton Police Station where their statementswere recorded: that when they returned to the Bungalow they foundthat S.l. Sanders of the Norwood Police station too had come to theBungalow: that they then made statements to him too, as it wasstated that the Bungalow is situated within the Norwood Police area:that they also made statements to the C.I.D. on 18th May, after theirreturn to Colombo on the night of the 14th of May: that Mrs.Bandaranaike made a statement to the Police for the first time only on15th May on her return Colombo, which said statement was followedby a second statement on the 18th of May: that Kamala Ranatungamade her first statement to the Police also in Colombo on the t8thduring the course of which the documents P2 and P2A were handedover to the Police.
In accepting the evidence led for the prosecution and arriving at afinding of guilt against all the accused on counts 1 and 2 and at thesame time acquitting them all on counts 3 and 4, the learnedMagistrate has, inter alia, held: that the words relied on as beinginsulting were contemporaneously recorded by Kamala Ranatunga,on the direction of Mrs. Bandaranaike, in the two sheets of paperwhich were produced at the trial marked P2 and P2A: that, eventhough both Mrs. Bandaranaike and Kamala Rbnatunga did not, intheir evidence in Court, state orally the words which are alleged tohave been uttered by the accused on the night in question and which.are set out in the charge, yet, as they are correctly recorded in P2and P2A, it is not necessary for Mrs. Bandaranaike to state orally thesaid words from the witness-box: that, in view of the evidence of theExaminer of Questioned Documents, three bail-point pens had beenused to write the contents which appear in P2 and P2A: that, whenKamala Ranatunga stated, at the trial, that she used only one black.ball-point to write the entirety of the contents of P2 and P2A, she wasmaking a mistake in view of the passage of time: that KamalaRanatunga’s evidence has been fully corroborated by the evidence ofMrs. Bandaranaike: that the evidence of both Kamala Ranatunga andof Mrs. Bandaranaike is corroborated by the evidence of the witnessJayasinghe who has, in his evidence, stated the obscene words usedby the accused: that, as both Kamala Ranatunga and Mrs.Bandaranaike are ladies, and as Mrs. Bandaranaike is both anex-Prime Minister of this country and was, at the time of the allegedincident, a Member of Parliament, their evidence is accepted asbeing truthful: that the delay – of about 2 days – in Mrs. Bandaranaikemaking a statement to the Police, as she wanted to consult herlawyers before making a statement to the Police, is not a matter forsurprise as she had been the Prime Minister of this country forseveral years and is also the leader of a leading political party: thatJayasinghe is a witness who could have clearly seen this incidentand also have heard the words used: that, although there were minorcontradictions in the evidence of the witnesses Simon Singho,
Jayasinghe, Mrs. Bandaranaike, Chandrasena and KamalaRanatunga, they are, however, not in respect of important matters:that these witnesses have no reason to implicate those accusedfalsely: that they have given evidence in such a manner as to satisfyhim (the learned Magistrate): that, as the defence has pointed outseveral infirmities in the evidence of the witness Tilak Liyanage, hisevidence is of no value: that these six accused, with others, cameand the 1st accused inquired whether Mrs. Bandaranaike was there,referring to her in obscene language: that thereafter they sangobscene songs for a period of over an hour, having also consumed abottle of liquor in the meantime: that the evidence does not establish,beyond reasonable doubt, that the accused were members of anunlawful assembly the common object of which was to commitmischief.
Learned Counsel appearing for the accused-appellants, and alsolearned Counsel appearing for the respondents and learned Counselfor the party-aggrieved (whose claim to represent .and to address thisCourt on behalf of Mrs. Bandaranaike was upheld by this court for thereasons which are set out later in this judgment) between themcanvassed almost all the findings of the learned Magistrate.
The duty of an Appellate Court in a criminal case was clearly setout by Akbar, J. in the case of The King v. Fernando,m that the duty ofthe Appellate Court in a criminal case is not similar to that of anAppellate Court in a civil case: that, in a criminal case, if the judge ofthe Appellate Court has any doubt that the conviction is a right one,the accused should be discharged: that, in a civil case the AppellateCourt must be satisfied, before setting aside the order of the lowerCourt, that the order is wrong: that, an Appellate Court is boundprecisely in the same way as the Court of first instance to testevidence extrinsically as well as intrinsically. These principles werefollowed by Wijeyewardene, J. in the case of Martin Fernando v. TheInspector of Police, Minuwangoda,(2> where the duty was expoundedas follows: that, though the decision of a Magistrate on questions offact based on the demeanour and credibility of witnesses carries greatweight, an Appellate Court is not absolved from the duty of testing theevidence extrinsically as well as intrinsically: that, where a closeexamination of the evidence raises a strong doubt as to the guilt ofthe accused, the accused should be given the benefit of the doubt.Macdonnel, C.J., in the case of King v. Gunaratne eta!P>, formulatedthree tests to be applied by a Court of Appeal to an appeal coming toit on questions of fact as: was the verdict of the Judge unreasonableand against the weight of evidence? Was there a misdirection eitheron the law or on the evidence?.Has the Court of trial drawn the wronginferences from matters in evidence? In the case of SangarakkitaThero et al. v. Buddharakkita Thero,(4), too Wijeyewardene, C.J.,interfered with the findings of fact of a Magistrate and set aside theconvictions entered against the accused in the Magistrate’s Court.This question was also considered by (G. P. A.) Silva, J. in the case ofPerera v. Alaganathan,<5) and after a consideration of the earlierauthorities Silva, J. at page 452 stated:
“The substance of all these decisions is that the Court ofAppeal will not lightly interfere with a finding of fact by aMagistrate but where there is good ground to do so in thecircumstances of the case or where the judgment of the lowercourt is unsound not merely has this court the right but is undera duty to reverse such finding.”
The principles laid down by the authorities, referred to above,make it clear: that, although the findings of a Magistrate on questionsof fact are entitled to great weight, yet, it is the duty of the AppellateCourt to test, both intrinsically and extrinsically the evidence led atthe trial: that, if after a close and careful examination of suchevidence, the Appellate Court -entertains a strong doubt as to theguilt of the accused, the Appellate Court must give the accused thebenefit of such doubt.
The sum and substance of the submissions made by the severalCounsel appearing for the accused-appellants is that several factsand circumstances, arising from the evidence of the prosecutionwitnesses themselves, in favour of the defence have not beenconsidered by the learned Magistrate, and that, if the learnedMagistrate had properly directed himself on the evidence before himthe learned Magistrate would, at the lowest, have had a reasonabledoubt arising in his mind in regard to the guilt of the accused-appellants.
Learned counsel appearing for the several accused-appellants allopened their submissions on the footing that the position of theprosecution was that the unlawful assembly .relied on by theprosecution came into existence only after the accused-appellantsentered the Bungalow. Both Mr. Pullenayagam and the learnedAdditional Solicitor-General, in their submissions, However,contended that the unlawful assembly alleged by the prosecutionhad been formed by the time all the accused-appellants, ahd theother members, alighted from their vehicles and that such Unlawfulassembly was already in existence at the time they all (the accused-appellants and the other members) entered the said Bungalow.
The learned Magistrate has in his judgment observed that,although ordinarily in a case where the charge framed against anaccused is in respect of an offence of intentional insult, under Section484 of the Penal Code, the virtual complainant should, in hisevidence, set out the very words, which are alleged to have beenused by the accused and which are relied on as being insultlhg, yet,as he, the learned Magistrate, has accepted that the word? soalleged to have been used have been correctly recorded lh thedocuments P2 and P2A, he is of opinion that it was unnecessary forMrs. Bandaranaike to have stated orally the said words in the ObUrseof her evidence at the trial.
The accused-appellants challenge the genuineness of thedocuments P2 and P2A. It is their position – as formulated by Mr.Mark Fernando, learned Counsel for the 5th accused-appeilabt -that, even if a contemporaneous record was in fact made by KamalaRanatunga, then what was so recorded were only the line? one tothree and lines five to nine appearing on the reverse of P2 (Hid alsomarked page 2 in red), and that line 4, and all the’ rest appearingboth on that page itself and on page 1 of P2 and P2A, which Is alsonumbered 3 in red, have all been written up subsequently.
Kamala Ranatunga was cross-examined in regard to thedocuments P2 and P2A; and her clear and categorical position was
that P2 and P2A were written by her inside the room in the presenceand in the full view of Mrs. Bandaranaike while the said obscenesongs were being sung, and that she used one black ball-point towrite the entirety of the contents of both documents. Her attentionwas drawn expressly to the colour of the words appearing in line 4 ofP2 and the colour of the words appearing in the other lines of thatpage, both above and below the 4th line, and yet she maintainedquite definitely that she used one, and only one bail-point pen to writeall that appears both on P2 and P2A.
Mrs. Bandaranaike stated in evidence: that she asked KamalaRanatunga to take down the words of the obscene songs that werebeing sung: that Kamala Ranatunga did so on sheets of paper whichwere in her (Mrs. Bandaranaike) bag: that once that was done shetook the sheets of paper from Kamala Ranatunga to read them: thatas she could not read their contents, she gave them to KamalaRanatunga who read them out for her: that thereafter she herself readthem that night itself. According to the record, when Mrs.Bandaranaike was being examined-in-chief at the trial, learnedSenior State Counsel conducting the prosecution had moved to markthe two sheets of paper, on which the obscene words were stated tohave been written down, as P2 and P2A. Immediately thereafter thereappears an answer given by Mrs. Bandaranaike that these twosheets of paper, which had been in her bag, were given to KamalaRanatunga. Thereafter, in cross-examination, P2 had been shown toMrs. Bandaranaike, and she had stated: “That was written byRanatunga on my instructions." There is no entry in the record beforethis particular answer appears that the witness, Mrs. Bandaranaike.had herself perused the document before she gave this answer. Noris there any other answer of herappearing in the record which showsor tends to show that she had, in the witness-box, perused thedocuments P2 and or P2A and categorically stated that all that whichnow appears in P2 and P2A is what was in fact taken down byKamala Ranatunga inside their room that night and thereafter not onlyread out to her by Kamala Ranatunga but also read by her. Even so,the learned Deputy Solicitor-General submitted that Mrs.Bandaranaike had in Court accepted P2 and P2A as such, and thatshe herself identifies not only the two sheets but also the entirety of
the contents of both P2 and P2A; and this analysis and theassessment of the evidence led at the trial pertaining to these twodocuments – P2 and P2A is therefore, being done on that basis.
After the cross-examination of Mrs. Bandaranaike the twodocuments P2 and P2A were forwarded to the Examiner ofQuestioned Documents, by the learned Magistrate upon anapplication made in that behalf by the defence, “to report whether the4th line of writing on page 2 of P2 has been written using the samepen that has been used to write the rest of the writing; on thisdocument”. The report forwarded by the said Examiner of QuestionedDocuments to the court was thereafter produced, marked 1D3, by thesaid Examiner of Questioned Documents himself when he testified atthe trial as a defence witness.
The Examiner of Questioned Documents in his Report 1D3 haisexpressed the opinion: that all the writing on P2 and P2A are ball-point pen writings: that all the writings on P2 and P2A fall into threegroups – (1) those on page 1 of P2 and those commencing from linenine on page 2 and going right down to the last, the colour of the inkof all of which is violet-blue, (2) those on page 2 of P2 from line 1 toline 3 and again from line 5 to line 8, the colour of the ink of all ofwhich is blue-black (3) the 4th line on page 2 of P2 the colour of theink of which is bright blue: that each of the three groups of writing hasbeen written with a different bail-point pen.
The learned Magistrate has accepted the evidence of theExaminer; for, in considering the impact of the evidence of theExaminer of Questioned Documents on that of Kamala Ranatunga inregard to P2 and P2A, the learned Magistrate has stated that: animportant question which arises is whether Kamala Ranatunga’sevidence that she used only one bail-point pen is rendered falsebecause of Ranatunga’s (the Examiner of Questioned Documents)evidence that three ball-points pens have been used to write thecontents of P2 and P2A: he (the learned Magistrate) feels (&z32>3)that three pens have been used by her (Kamala Ranatunga) to writethese documents: he feels that the statement that only one pen wasused to write these documents has been due to forgetfulness or to a
mistake. The evidence of this expert is not only inconsistent with butalso contradicts Kamala Ranatunga’s persistent and categoricalposition, as already set out above, that only one ball-point pen wasused and that too one black in colour. A conflict of evidence such asthis on an important point would ordinarily have, in a criminal case,resulted in at least considerable doubt being entertained in regard tothe veracity of such a witness. The learned Magistrate has, however,glossed over this infirmity in Kamala Ranatunga by attributing it to aground which was not even preferred by the witness herself. Therewas, not even for a moment, any uncertainty in her own mind inregard to the number of .pens used by her, or its colour. There was notin her evidence the faintest hint by her of hewnaking a mistake onthis matter. In that state of her evidence the learned Magistrate wasnot called upon to consider whether or not she was in any waymaking a mistake, whether or not she has had a lapse of memory.She does not herself call in aid any such possibility. She herself isquite firm and uncompromising. That being so, I do not think it wasopen to the learned Magistrate himself to go looking for an excuse orexplanation, not suggested or even faintly hinted at by the witnessherself, in order to render her evidence acceptable in spite of suchexpert evidence.
It was contended before this Court by the learned AdditionalSolicitor-General – it is noteworthy that Mr. Puilenayagam himself didnot, in his Submissions, so urge – that the evidence of the Examinerof Questioned Documents should not have been accepted by thelearned Magistrate for the reason that this witness cannot and mustnot be regarded as an expert on the particular topic upon which hisopinion was sought and in respect of which he later testified in theMagistrate's Court.
The Examiner of Questioned Documents commenced his evidenceby setting out his qualifications. He has held the said office from,March 1977: He has had experience in the examination ofquestioned documents for a period of 15 years: He holds a generaldegree in Science: He has received specialised training abroad: Hehas also had experience, inter alia, in the different kinds of ink andother Instruments used for the purpose of writing: He has had training
in regard to hard^point pens: He has had specialised training inregard to the various kinds of ink: He has been examining almostdaily documents handwritten with ball-point pens. This witness hasset out his examination of P2 and P2A, and the grounds upon whichhe has arrived at his opinion that three bail-point pens have beenused. Quite apart from his opinion based upon an examinationconducted with instruments, even a visual examination of P2 and P2Aby the naked eye does reveal that the ink with which line 4 on page 2of P2 is different from the ink used to write the three lines preceding itand the five lines immediately following it, and that the ink of the restof the writing on page 2 of P2, together with the writing on page 1 ofP2 and on P2A, seem to be different from the two different colours ofthe ink used to write the first nine lines on page 2 of P2A.
Under the Section 45 of the Evidence Ordinance opinions ofpersons specially skilled in, inter alia, science or art, or in questionsas to identity or genuineness of handwriting are relevant facts. Theauthorities – Regina v. Pinhamym; Charles Perera v. Motha(7);Gratiaen Perera v. The Oueenm; – have laid down the properapproach that should be followed by a Court, in regard to theevidence of an expert: that it is the duty of the Court itself to form anopinion upon the question in respect of which the expert givesevidence: that, in doing so, the Court should, however, take intoconsideration such expert opinion: that the function of the expert is toassist, with his expert knowledge and experience, the Court inarriving at a finding upon the particular matter.
A consideration of the evidence given by the Examiner ofQuestioned Documents makes it clear that not only is the questionupon which he has been called upon to express an opinion a matterwhich properly falls within the functions of an Examiner of QuestionedDocuments,'but also that this witness has the necessaryqualifications and the experience to satisfy the Court that he is aperson who is specially skilled in the field in which he has beencalled upon to give expert evidence. The learned Magistrate had,therefore, evidence before him upon which he could find that threeball-point pens had in fact been used for the purpose of writing the
contents of the documents P2 and P2A. I se§ no reason why thisfinding should be interfered with in any way.
It was also contended on behalf of the accused-appellants that itwas not open to the learned Additional Solicitor-General to seek tocanvass the said finding of the. learned Magistrate before this Courtin this appeal. Although it is not really necessary to consider thiscontention in view of my opinion that the aforesaid finding of thelearned Magistrate does not call for interference by this Court, yet, asthe contention was put forward on behalf of the defence, and there isno authoritative decision pn this point as yet, I propose to indicatevery briefly my own views in regard to it. The defence submitted thatit is hot open to the prosecution to seek to canvass before this Courtthe said finding of the learned Magistrate which is in favour of thedefence, as the prosecution has not, prior to this appeal being takenup for hearing before this Court,-either filed any papers by whichsuch findings are ordinarily canvassed before this Court – forinstance by way of Revision – or given to the defence prior notice of itin any way. Sections 316-330 of Part 7 of the Code of CriminalProcedure Act No. 15 of. 1979, deal with appeals from theMagistrate's Court to this Court. There is no section in the said Part 7,which is comparable to the provisions of Section 772(1) of the CivilProcedure Code. Nor has our attention being drawn to any othersection of the said Act No. 15 of 1979. A respondent to a civil appeal,who desires to do what the respondent to this appeal seeks to do inthis appeal in regard to the aforesaid finding of the learnedMagistrate, would have had to first comply with the provisions of thesaid Section 772(1) Civil Procedure Code. If such a respondent failsto take the steps so specified, he will not be allowed to canvass anysuch finding of the. trial judge which is unfavourable to him. It is thesaid section and the said section alone which enables such a courseof action. The absence of such a provision in the Code of CriminalProcedure Act No. 15 of 1979 is indeed significant. In the absence ofsuch an express provision in regard to a criminal matter, in which thenecessity of such a requirement need hardly be stressed, it seemsreasonable to take the view that, in a criminal appeal, a respondenthas no such right, at any rate without prior notice to the appellant. Inthis view of the. matter it seems to me that there is considerable
substance in the objection put forward on behalf of the accused-appellants.
The defence also submits that whatever suspicions arise in regardto the authenticity of P2 and P2A as a result of the learnedMagistrate's acceptance of the defence position that three ball-pointshave been used to write what now appears on P2 and P2A, arefurther heightened by the delay, in respect of which no satisfactoryexplanation has been given, in handing them over to the Police. P2and P2A have been handed over to the Police only on 18.5.79 -about five days after the alleged incident.
Mr. Mark Fernando, appearing for the 5th accused-appellant, has,as set out earlier contended on behalf of the defence that, havingregard to the circumstance that, of all the contents appearing on bothP2 and P2A, only lines one to three and five to nine on page 2 of P2have been written with a bail-point pen containing ink of a black blue,and having regard to Kamala Ranatunga’s insistence that she usedonly one bail-point pen and the colour of it was black, and alsoseeing that page one of P2 is a letterhead of the National StateAssembly, if Kamala Ranatunga did write down anything at all thatnight on P2, it is more likely she would have commenced writing onpage 2 of P2 rather than on page 1 and that, having so commenced,she did write down only the lines 1 to 3 and 5 to 9 on that particularpage of P2, and that the rest of the contents, which now appear onthe balance of page 2 of P2 and on page 1 of P2 and also on P2A,together with line 4 of page 2 of P2, have been written upsubsequently. This is a submission which is based upon certain factsand circumstances, which were established at the trial, and uponpossible inferences to be drawn from such facts and circumstances.To these should be added the further circumstance that the Policeseem to have not had sufficient particulars – for Mrs. Eandaranaikeherself stated that, on the occasion the Police recorded her secondstatement, Police stated that her statement (which seems to be areference to her first statement recorded on the 15th) is lacking insufficient particulars, and in 3D1 (which will be referred to later) thewitness Jayasinghe himself had not set out the alleged offendingwords themselves – prior to 18.5.82. This is a matter, which seems to
be in favour of the defence and.which was, therefore, required to beconsidered before a finding in regard to the authenticity of P2 andP2A was arrived at.
■ -The learned Magistrate has held that Kamala Ranatunga’sevidence is corroborated by the evidence of Mrs. Bandaranaike. Thedefence, however, challenges Mrs. Bandaranaike’s evidence asbeing unworthy of credit; and learned counsel for the accused-appellants have drawn the attention of this court to several infirmitieswhich are said to exist in Mrs. Bandaranaike’s evidence which, if it issubmitted, they had been considered in their proper, perspective bythe learned Magistrate, he would, at the lowest, have hesitated to acton her evidence. It is, as I have already stated, the position of theprosecution that Mrs. Bandaranaike too has, in her evidence, testifiedto the identity and the genuineness of both P2 and P2A. That being'SO, any doubts arising in regard to the .genuineness of P2 and P2A-as documents in which the offending words were in truth and in facttaken down by Kamala Ranatunga on the night in question frominside, the room she shared with Mrs. Bandaranaike in the aforesaidBungalow – would also affect Mrs. Bandaranaike’s evidence that P2and P2A contain the offending words which were used by theaccused on the night in question. Apart from this infirmity, thedefence also relies on several other features in Mrs. Bandaranaike’sevidence which the defence submits affect her credibility. It is inevidence that, shortly after the accused had left the Bungalow, theHatton Police had, consequent upon the complaint P1, made by thewitness Simon Singho, arrived at the Bungalow; and both Mrs.Bandaranaike and Kamala Ranatunga admit that the Police Officers,who came at that time, spoke to Mrs. Bandaranaike and asked Mrs.Bandaranaike as to what had happened. It is in evidence that■thereafter early next morning, about 8-8.15 am, S.l. Sanders, thethen officer-in-charge of the Norwood Police within which Police areathe said Bungalow is situate, had himself proceeded to the Bungalowfor.investigation and had asked Mrs. Bandaranaike whether shewould make a statement to him. Mrs. Bandaranaike had not made astatement to S.l. Sanders about the incident that is alleged to havetaken place the previous night but had.instead, according to S.l.Sanders, told S.l. Sanders that she would come to Colombo and
make a statement in the company of her lawyer. Mrs. Bandaranaike,however, denies that she told the Norwood Police so; and shecategorically stated under cross-examination, that it would beincorrect (oz6^a) for anyone to state that she said so. There was thusa conflict as between Mrs. Bandaranaike and S.l. Sanders on thispoint. Although the learned Magistrate has not expressly said so, hehas nevertheless not accepted Mrs. Bandaranaike’s evidence on thispoint; for, he has accepted S.l. Sanders evidence that Mrs.Bandaranaike did tell S.l. Sanders what S.l. Sanders says she toldhim; and the learned Magistrate has proceeded to state that it is notsurprising that, when a person of the standing of Mrs. Bandaranaikemakes a statement to the Police in regard to an incident of thisnature, she would consider the matter further and obtain the adviceof her lawyers before making such a statement. On that basis thelearned Magistrate observes that it is not a matter for surprise thatthere was a delay of few days in Mrs. Bandaranaike making astatement to the Police. Here again the learned Magistrate hasproceeded to adopt as an excuse for what he himself considers aseemingly belated statement to the Police, an explanation which thewitness herself had not only not adduced but has also quite definitelystated would be wrong for anyone to say she preferred. It seems tome that it was not open to the learned Magistrate to satisfy himself -in regard to a matter, which in any criminal trial would, in the absenceof a satisfactory explanation, be ordinarily viewed with caution – upona ground which is not only not urged as an excuse by the witnessherself but is, on the other hand, flatly, repudiated by the witnessherself. In this case what really called for an explanation and becamea matter to be viewed with caution in the absence of such anexplanation, was not so much the passage of time – which had beenonly about 36 hours or so – between the alleged incident itself andthe making of the statement to the Police, but the fact that not onlywas a statement not made at the first available opportunity to thePolice, but also that a statement was not made, even though thePolice had asked the witness, within a very short time of the allegedincident, what had happened, and again a few hours later – withinabout nine to ten hours – the officer-in-charge of the Police station ofthe area himself had expressly requested the witness, at the scene ofthe alleged incident itsejf, to make a statement. A consideration of
Mrs. Bandaranaike's evidence shows that -she has referred to atelephone conversation she says she had with the Inspector Generalof Police from Hatton on the morning of the 14th in the course ofwhich, she says, she told the Inspector General of Police that, as shehad to attend a meeting at Ratnapura, she had no time to make astatement, and that the Inspector General of Police had asked her toget the others to make statements and to contact him on her arrival inColombo. The Inspector General of Police, however, was not awitness at the trial. Even assuming that such a conversation did takeplace, the explanation so given by Mrs. Bandaranaike for her notmaking a statement to the Police before she left Hatton on the 14th ofMay does not seem to bear close scrutiny. On the evidence acceptedby the learned Magistrate, it is clear, as set out earlier, that she had,within a space of about 10 hours of the alleged incident, twoopportunities of making statements to the Police, once to the HattonPolice and again to the officer-in-charge of the Norwood Police. Atone stage of her cross-examination Mrs. Bandaranaike has statedthat she did not make a statement either to the Hatton Police or to theNorwood Police because the Police took Jayasinghe and Tilak to thePolice Station. Neither of these explanations has been considered bythe learned Magistrate as excuses for Mrs. Bandaranaike’s failure tomake a prompt statement to the Police.
Mrs. Bandaranaike's first statement to the Police has been madeonly on 15.5.79, after she had returned to Colombo on the night of14.5.79, at her Colombo residence and after, she says she had rungup the Inspector General of Police, to an officer of the CinnamonGardens Police station. Thereafter she had made a further statementto the Police on 18.5.79 as, she says, the Police informed her that herstatement did not contain sufficient particulars (3dad
The documents P2 and P2A, according to the evidence, havebeen handed over to the Police only on 18.5.79 by KamalaRanatunga during the course of the statement made by her also tothe Cinnamon Gardens Police station at Mrs. Bandaranaike'sresidence. This statement is also Kamala Ranatunga’s very firststatement to the Police. Kamala Ranatunga has not herself givenan explanation as to why she did not make a statement to the
Police prior to the 18th. She had from the time of the alleged incidentright up to the morning of the 15th, when, she says, she leftMrs. Bandaranaike's residence early at about 6 a.m. even beforeMrs. Bandaranaike woke up, been with Mrs. Bandaranaike; and shetoo had the same opportunities that Mrs. Bandaranaike had, ofmaking a statement to either the Hatton Police or the Norwood Policeat the aforesaid Bungalow itself before they left the Bungalow forRatnapura on 14.5.82, and of handing over the documents P2 andP2A to the Police very shortly after the alleged incident. Yet, she hasnot done so; and no satisfactory explanation has come forth fromKamala Ranatunga either.
P2 and. P2A, according to the prosecution, were written by KamalaRanatunga at the request of Mrs. Bandaranaike who had realised thenecessity and the importance of a document which comes iRtoexistence contemporaneously with the incident. Time and again Mrs.Bandaranaike expressed, in her evidence at the trial, her awarenessof the importance of such a document and also the importance ofmaking a prompt statement to the Police; and there is no doubt butthat a person of her standing would also have realised the value andimportance of handing over such a document to the Police as earlyas possible, and at the very first opportunity they have of doing so.Even so, neither the Hatton Police, nor the Norwood Police had beenso informed. The first intimation to the Police of their existence is onlyon the 18th by Mrs. Bandaranaike; and that too only in her secondstatement to the Police after her return to Colombo. Mrs.Bandaranaike did at the trial explain why she had not, in her firststatement, made on 15.5.79, made any reference to P2 and P2A. Shestates that that was because P2 and P2A were not with her, and thatif she had referred to them without having them with her the Policeofficers may not have accepted what she said (a®&d8oeaoQd BqOo©sx>88©sfe> $3<$©a>*). It must also be noted that at anearlier stage of her cross-examination Mrs. Bandaranaike had putforward as an excuse for not having referred to P2 and P2A in herfirst statement made on the 15th the explanation that she answeredonly the questions put to her by the Police. Yet when it was ultimatelyreferred to on the 18th, it was Mrs. Bandaranaike who said so on herown. The submission made on behalf of the defence that theexplanations given by Mrs. Bandaranaike fornot informing theofficers of the Hatton Police and of the Norwood Police on the 13th -14th of May, and thereafter failing to refer even in her statement onthe 15th of May to P2 and P2A – a document brought into existencebecause she herself wanted such a document for future action, to beused against those whom she thought have gravely wronged her,and a document the value and the importance of which for such apurpose, she, on her own showing, full-well appreciated – were,coming as they do from a person of her standing, far fromconvincing, is one which cannot be lightly brushed aside..These arematters which called for careful consideration by the learnedMagistrate.
A circumstance that seems to have weighed heavily with thelearned Magistrate is that the two witnesses who speak to P1 and P2- Kamala Ranatunga and Mrs. Bandaranaike – are both ladies, andthat Mrs. Bandaranaike is what she is – one who has been the PrimeMinister of this country and was also, at the relevant time, a Memberof Parliament. The learned Magistrate had evidently taken the viewthat both witnesses being ladies, it is unthinkable that they wouldhave deliberately thought of such foul and obscene words on theirown and then written them down even without such words havingbeen actually uttered by the accused themselves that night,particularly where one of the ladies had also held the highestpossible positions in the public life of this country. Thesecircumstances have been taken into consideration by the learnedMagistrate in determining their credibility, that persons such as theyare not likely to perjure themselves in a court of law. In regard toMrs. Bandaranaike as a witness, although the circumstances referredto by the learned Magistrate may be considered relevant indetermining the question of credibility, it is, however, necessary toguard against the danger of prejudice being caused to the accused,even imperceptibly, by any over-emphasis of such circumstances.Mrs. Bandaranaike is herself an interested party in this matter, andthe evidence given by her at the trial must be tested in the same wayas that of any other witness. The adoption of any other standardcould result in a violation of the constitutional guarantee that allpersons are equal before the law and are entitled to the equal
protection of the law. Relevant as the above considerations may be,the accused are also entitled to a consideration of certaincircumstances which are peculiar to them: that several of them holdpositions of responsibility: that the 3rd and 4th accused-are the sonand wife respectively of the 1st accused: whether it is likely that, evenif the 1st accused himself had such an object as is urged by theprosecution, the 3rd and the 4th accused would also have shared insuch an object with the 1st accused..
The learned Magistrate, in taking the view that the accused had infact conducted themselves in the manner urged by the prosecution,seems to have been influenced by the fact that the group of singershad also partaken of liquor; for he states:
“In the meantime (they) got down a bottle of liquor and consumedthat too. It is a fact which we all know that, when liquor is consumed,the conduct of many persons becomes worse, if not wicked.”Although there is evidence that the Bungalow-boy did take abottle ofliquor into the sitting-room,, there is, however, no evidence as to thepersons who consumed such liquor, whether ail or only some ofthem. Although such instances may not be altogether unknown andunheard of, yet the sight of both parents consuming liquor with theirteen-age sons and engaging in the singing of ribald songs with them,whether in public or private places, is still not a common spectacle inour country. It seems to me that these are also considerations whichcalled for express and careful examination by the learned Magistratealong with the specific consideration expressly referred to by thelearned Magistrate as being peculiar to the two aforementionedprosecution witnesses. An examination of the judgment of thelearned Magistrate does not indicate that they have received suchconsideration.
On a consideration of the infirmities that have been shown to existin the evidence of Mrs. Bandaranaike given at the trial in this case, itseems to me that, had the learned Magistrate addressed himself tothem and considered them in their proper perspective it is more thanlikely that the learned Magistrate would have found himself unable tosay that Mrs. Bandaranaike's evidence corroborates the evidence ofKamala Ranatunga.
The only witness, who did, at the trial, state orally the very words,which are alleged to have been used by the accused and which aresaid to be obscene and insulting, is the witness Jayasinghe. Thelearned Magistrate'has accepted Jayasinghe’s evidence assupporting the evidence of Kamala Ranatunga and of Mrs.Bandaranaike that the words set down in P2 and P2A are the wordsused by the accused. The defence has drawn the attention of thisCourt to certain features in Jayasinghe’s evidence too, which, it issubmitted, show that Jayasinghe's evidence given at the trial is notacceptable. Jayasinghe is, as set out earlier, one of the two persons -the other being Tilak Liyanage whose evidence has not beenaccepted by the learned Magistrate – whom Mrs. Bandaranaike hadtold the officers of the Hatton Police, were persons who had seen theincident, and who had then been taken to the Police station and theirstatements recorded that night itself. The statement so recorded atthe Hatton Police station at 12.30 a.m. on 14.5.79 has been producedby the defence as 3D1. 3D1 was marked by the defence to provethat Jayasinghe had not told the Police that, whilst this incident wastaking place, he had gone outside and had peeped into the sitting-room of the Bungalow where the accused were said to be singing,because Jayasinghe’s position in Court was that, at one stage, he didso go out and peep into the said sitting-room. This item of evidencegiven by Jayasinghe assumed importance in view Of Jayasinghe'sultimate admission, made under cross-examination, that, had he notso gone out of the Bungalow and looked into the lounge (sitting-room) through the window, he would not have seen anything that washappening inside.the lounge, but that he could only have heard whatwas- happening therein. The defence led evidence of a licensedsurveyor, named D. Y. Wijewardena, who produced marked 1D1, asketch of the said Bungalow and as 1D2 a sketch of the said
Bungalow.and the compound surrounding it. The learned Magistratehas considered the defence position – based upon the twodocuments 1D1 and 1D2, and the oral evidence of the surveyor whoprepared them – that, even if Jayasinghe had in fact gone out of theBungalow and looked towards the lounge room he could not haveseen those who were inside and what each one was doing. He hasalso dealt with the non-reference to this matter in 3D1. The learnedMagistrate has taken the view that, if Jayasinghe had looked fromnear the road depicted in the sketch he could have seen what washappening inside the room. The learned Magistrate seems, however,to have not given sufficient consideration to the surveyor’s evidence,given under cross-examination, about the ability to see from near thesaid road; for, his evidence is that if one stands by the side of theroad near the window “A” (which is the window of the lounge on theside of the summer-house) one cannot see any one (by one insidethe lounge) and that one could, however, see from the road, and thattoo only the face-portion (f-es @aoQea) of one who is about 3-4 feetfrom the said window within the lounge. The learned Magistrate hasobserved that Jayasinghe, who maintained that he saw by standingabout 1-2 feet away from the window, has not measured the distancewith a foot-ruler and that, as it was also dark, he thinks thatJayasinghe could not state the distance definitely. The learnedMagistrate does not seem to have considered, in this connection: thefact that there is a flower-bed 9 feet in extent between the saidwindow and the road: and that the distance of 1-2’ given byJayasinghe, though it may not be very accurate, tends to show thatthe spot he refers to is closer to the window than to the road: and thatthe Surveyor's evidence points rather to a person.inside the loungebeing seen, even to the limited extent set out by him, only by onestanding on the road and not by one standing even near (qSesi) thesaid road.
The defence has also drawn the attention of this Court to two otheromissions in Jayasinghe’s statement, as embodied in 3D1: the failureto refer is the specific words which he, Jayasinghe, stated in hisevidence at the trial that the accused uttered in the course of theirsinging inside the sitting-room: the non-reference to the use of any
insulting epithet in regard to Mrs. Bandaranaike in the inquiry madeby the members of the group as they were entering the bungalow.
It was contended on behalf of the prosecution that the defencecannot now rely on any such omission in 3D1 as they were not reliedon by the defence at the trial.and put to the witness. The decisions inthe cases of Fernando v. The Queenmand Mutubanda v. TheQueenmand also the provisions of subsections (3) and (4) of Section110 of the Code of Criminal Procedure Act 15 of 1979, do, in myopinion, permit this court to look into 3D1, which has also beenproved at the trial, for the purpose of seeing whether Jayasinghe hadtold the Police a story materially different from-the story set out in hisevidence at the trial, for instance by omitting to mention to the Policeany material fact which Jayasinghe has deposed to at the trial. Anexamination of 3D1 shows that Jayasinghe, in that statement madeshortly after the incident when the'details of it would have been freshin his mind and the exact words, which, if he had in fact heard beingused, would neither have been forgotten nor forgiven, has not set outthe said words. Nor is there in it any reference to the objectionableepithet which in his evidence at the trial he stated was used inrelation to Mrs. Bandaranaike when the inquiry was made whetherMrs. Bandaranaike was in occupation. It further shows that theinquiry, as to whether Mrs. Bandaranaike and Anura were inoccupation, had been made only after the request for Brandy andWhisky had been made and such liquor forcibly obtained, and that itwas not, as was the position at the trial, the first question asked bythe offenders as they were coming into the Bungalow after the frontdoor was opened. This discrepancy is of importance in theconsideration of the prosecution position – which has been referredto earlier and which will be discussed again later – that the accusedhad formed themselves into the unlawful assembly set out in count 1,even before they entered the Bungalow that night.
The learned Magistrate has, after discussing Jayasinghe's failureto have mentioned to the Police that he had gone out and lookedthrough a window, and also Jayasinghe’s assertion in Court that hecould and did see through the window, stated that the submissions in
regard to Jayasinghe’s claim to have seen through the window,including his failure to tell the Police about it, and the “othercontradictions"esdsfodeS^) do not render his evidence false.
He, however, has not set out what the “other contradictions” soreferred to are; and winds up by holding that Jayasinghe is, therefore,a witness who had an opportunity of seeing this incident clearly andalso of listening to the words used by the accused. It, however,appears to me that, had the facts and circumstances detailed abovebeen considered by the learned Magistrate in their properperspective, he could and would not have arrived at the aforesaidfinding. He would, at the lowest, have had considerable doubt as towhether Jayasinghe did in fact “see” and “listen to” that whichJayasinghe said, in Court, he heard and saw.
The three witnesses referred to above, Kamala Ranatunga andMrs. Bandaranaike through the medium of P1 and P2 and Jayasingheupon his oral evidence given at the trial – are the only witnessesrelied on by the prosecution to prove the offending words set out incount 2 of the charge framed against the accused; and at theargument before this Court it was common ground that the entirecase against the accused revolves round these three witnesses.Although the view I have expressed above in regard to the evidenceof these three witnesses – that, had the learned Magistrateconsidered the facts and circumstances set out above as being infavour of the defence in their proper perspective, the learnedMagistrate would have found himself unable to hold that counts 1and 2 had also been proved beyond reasonable doubt – is, in myopinion, sufficient to a determination of this appeal,J shallnevertheless consider the further submission made by learnedCounsel for the accused that, in any event, the prosecution has failedto prove beyond reasonable doubt the charge of unlawful assemblyframed against tine accused in count 1.
It was contended on behalf of the defence; that the evidence ledby the prosecution, even if accepted, falls far short of establishingbeyond reasonable doubt that either all six accused, or some of themwho with the other unnamed persons together numbered at least five
had the common object of intentionally insulting Mrs. Bandaranaike:that the prosecution evidence does not clearly and categoricallypoint only to the conclusion that, at the time they arrived or at anytime thereafter, their sole object was to insult Mrs. Bandaranaike: thatthe inference that the primary object of the members of the groupwhich came in, was to have a drink was also possible: that if whilstthey were so consuming liquor, one or more – less than five – of themembers of the group burst into song and sang obscene songs,such conduct is not sufficient by itself, to transform the group into anunlawful assembly, still less to establish that all the members of thatgroup, including the six accused, were all members of an unlawfulassembly with the common object set out in couqt 1: that the conductof several of the accused, particularly 3rd, 4th and 6th accused atany rate tended, if not to establish clearly that they were not membersof any such unlawful assembly, at least to raise a doubt as to theirsharing of any such common object. •
It was common ground at the hearing before us – and it is thecorrect position in law – that, if the prosecution fails to establish theunlawful assembly set out in count 1, then all the accused are entitledto be acquitted not only of count 1 but also of count 2, and that noneof them could be found guilty even individually of an offence underSection 484 as no such individual charge has been framed againstany one of them.
At the hearing before this Court it was the position of theprosecution that the unlawful assembly set out in count 1 had comeinto existence by the time the six accused, and the others who werewith them, entered the said Bungalow, and was already in existenceat the time they went into the lounge (or the sitting-room); and theconsideration of the question, whether the charge set out in count 1has been established or not, will, proceed on that basis. The items ofevidence relied on by the prosecution to prove the existence of suchan unlawful assembly, as stated by both the learned AdditionalSolicitor-General and Mr. Pullenayagam, are: that the accused, andthe others, all arrived at the Bungalow together as one group: thewords offered as they arrived – the obscene epithets used in relationto Mrs. Bandaranaike and Anura Bandaranaike in the inquiries made
as to whether they, were in occupation: the subsequent conduct ofthe accused – singing of vulgar songs within the Bungalow, in thelounge.
It is well settled: that the mere presence of a person in anassembly does not render him a member of an unlawful assembly,unless it is shown that he has said or done something or omitted todo something which would make him a member of such an unlawfulassembly: that the prosecution must piace evidence pointing to eachaccused having done or said something from which the inferencecould be drawn that each entertained the object which is said to bethe common object of such assembly: that omnibus evidence mustbe carefully scrutinized in order to eliminate all chances of false ormistaken implication, as the possibility of persons in an- assemblyresenting or condemning the activities of misguided persons cannotbe ruled out, and caution has to be exercised in deciding which ofthe persons present can be safely described as members of theunlawful assembly: that, although as a matter of law an overt act isnot a necessary factor bearing upon membership of an unlawfulassembly, yet, it is safer to look for some evidence of participation byeach person alleged to be a member before holding that suchperson is a member of the unlawful assembly, lest innocent personsbe punished for no fault of theirs: that the common object of anassembly is an inference from facts, to be deduced from the factsand circumstances of each case: that the common object can becollected from the nature of the assembly, the arms, used by them,the behaviour of the assembly at or before the scene of occurrence,and subsequent conduct: the common object must-be readilydeducibte from the direct as well as circumstantial evidence,including the conduct of parties: that it is not sufficient for suchevidence to be consistent with such an Inference, but must, be theonly concision possible: that merely because the specific offencewith which the unlawful assembly is charged is not proved, it doesn’tmean that the common object of the unlawful assembly should beheld to be non-existent: that, in order to find the common object of anunlawful assembly at the beginning, it Is not a legitimate methodmerely to taka all the actual offences committed by It In the course ofthe riot and to infer that aU these were originally part of its common
object, but that the conclusion must normally be based on moreevidence than the mere acts themselves – Ratnalal and Dhirajlal: TheLaw of Crimes – (22 edt.) p. 334.
The evidence relating to the conduct of the accused before theyentered the Bungalow through the front door is that they had, alongwith a few others, come to the premises in several vehicles and that,in order to have the door opened, they had stated that the “A.S.P. andthe H.Q.I.", had come. Thereafter, as they came into the Bungalow,the 1 st accused (according to Chandrasena only for, Jayasinghe atthe trial stated he could not say who made the inquiry) had inquired,using obscene epithets, whether Mrs. Bandaranaike and Anura werein the Bungalow. Apart from the use of the two objectionable epithets- whether by the 1st accused or by any other accused makes nodifference – there is no evidence of anything else said or done by anyof the other accused (or for that matter by any of the other unnamedpersons said to have been in the group) which should give anyindication of the object with which they had arrived and said as theywere entering the Bungalow. These items of evidence are in myopinion, insufficient to establish that any of the members of the group,other than the 1 st accused at the most, had the object set down incount 1. They may have come because some of them wanted to takea drink. That this could have been so is supported by the evidencethat thereafter there had been a demand for liquor, and that liquor,was in fact obtained, though by force. Liquor had then been servedin the lounge. What thereafter happened inside the lounge could not(except when, Jayasinghe, says, he went outside and looked inthrough the X window) and was not seen by any of the witnesses,who testified at the trial. Their evidence of what took place inside iswhat they heard emanating from inside. In this connection it has to benoted that, according to Mrs. Bandaranaike’s evidence, theobjectionable singing had not commenced the moment the grouphad come in, but only after the lapse of some time; for, she has firstheard several persons speaking loudly. She had also heard a personspeaking in a loud tone as if at a meeting, which said speech alsogave her the impression that it was a reply to what had been stated attheir (Mrs. Bandaranaike's meeting earlier that day, and that it was
being so said for her to hear; and, when the noise increased, she hadeven sent a message through Kamala to see what it was. Thesinging, which, according, to Mrs. Bandaranaike, had beenintermittent (SDzn'So), seems to have commenced only sometimeafter the members of the group had entered the lounge. Theobjectionable singing, alleged by the prosecution, could have begunafter the consumption of liquor. The learned Magistrate himself seemsto have thought that the liquor, had had something to do with theobjectionable conduct; for,, he made an observation in regard to theeffect of liquor on human conduct. As already set out, there was inthis group a husband and wife and their teen-age son. Whether thewife and the son also partook of the liquor with the husband (andfather) and also joined in the singing with him, or whether the two ofthem were helpless spectators who not only did not associate withbut also completely, though silently, disapproved of the conduct ofthe head of the family were certainly matters which called for expressand careful consideration by the learned Magistrate – even thoughneither the son (the 3rd accused), nor the wife (the 4th accused)themselves went into the witness-box at the trial.
The evidence shows that feminine voices were also heard. That byitself would not bring in the 4th accused; for, the self-same evidencedisposes the presence of several ladies in the group which came in.
Mr. Pullenayagam submitted that the extremely revolting nature ofthe language set out in count 2 should not tend to raise doubts as towhether the 3rd and 4th accused would have shared in a commonobject to use such despicable language, as the fact that such foullanguage was in fact used by a member of the unlawful assemblywould not prevent the sharing of a common object to intentionallyinsult, though not by the use of such foul language which would nothave been approved of some of the other members of the unlawfulassembly. Although as a proposition of law it may be. so, what hasfirst to be established here is that the 3rd and 4th did share, alongwith the others, including the 1st accused, an object to intentionallyinsult Mrs. Bandaranaike. The evidence must be such as to establish,'as the prosecution contends, that that was the sole object of thesetwo accused as well when they entered the Bungalow that night. The
prosecution must eliminate the possibility that tfie two of them cameto the bungalow that night merely as innocent dependants of the 1staccused; that they came there merely because the 1st accusedwanted to come there – whatever may have been the purpose forwhich the 1st accused himself came there, be it to have a drink oreven to cause annoyance to Mrs. Bandaranaike. Unless theprosecution can establish, eliminating all reasonable doubt, that the3rd and 4th accused were not only aware of the purpose for whichthe 1st accused coming to the said Bungalow that night, but that theytoo quite willingly approved of and did themselves have such anobject, the charge set out in count 1 must fail, at any rate as againstthem.
In regard to what happened within the sitting-room the onlywitness, who even purports to say he saw what happened inside thatroom, is Jayasinghe; but this witness loo does not state what exactlyhe saw taking place, within that room when he looked into that room,from outside from near the window, for about 2 to 3 minutes. Anattempt made by both Jayasinghe and Chandrasena to identify thosewho were singing inside the sitting-room – viz. the 1st, 2nd and 5thaccused failed dismally at least as against the 5th accused when itnot only became clear that they had not heard the voice of the 5thaccused either before or after the night in question, but also whenJayasinghe’s evidence, that he saw what he saw through a windowby just standing erect on the ground near such window, was at leastrendered suspect after the Surveyor, called by the defence, statedthat that window was 6' 7“ above ground level.
Furthermore, there are certain specific items of evidence, relatingto what the 3rd and 6th accused and also all the ladies, who hadbeen in the group, had, at various times done, which tend to raisedoubts as to whether they at any rate shared in the common objectalleged even against them by the prosecution. It is in evidence that,sometime after the singing had begun, the 1st accused had comeout of the sitting-room and had gone up to the door of the roomoccupied by Mrs. Bandaranaike and was about to kick it, when the6th accused rushed up to the 1st accused and took the 1st accusedaway. It is also in evidence that, after the accused all got on to the
compound on their way out and the 1st accused seemed bent onaggression, the 3rd accused had intervened to take his father away,saying:
V3 <s@0) sadafsn<s®e8 cs®" (We need
not do these. Enough of this shouting. Let us go), and that the 1staccused had then set upon the 3rd accused, and that the ladies hadthen, with difficulty, bundled them all into the vehicles and left thepremises.
These items of evidence, which do not seem to have engaged theattention of the learned Magistrate, must also be taken intoconsideration as forming part of the subsequent conduct of theaccused. These items of evidence, far from tending to point a fingerof guilt at these accused – the 2nd, 4th, 6th and the ladies in thegroup – could be said to raise doubts as to whether they at any rateshared in the common object alleged by the prosecution as againstthem too.
If the witness Jayasinghe's is the correct estimate of the number ofpersons who entered the bungalow that night, then of a group ofabout 10, about three had been women.
The learned Magistrate has not analysed, as against eachaccused separately, the evidence placed before him by theprosecution. Furthermore, although all six accused have been foundguilty of count 1, it is not clear whether of those mentioned in count 1only the six accused were members of the said unlawful assembly orwhether all or any of the "others" were also so guilty.
In regard to the "others" count 1 does not state that they areunknown to the prosecution. Did the “others" comprise any of thosepersons, who were also accused persons in the original plaint butwere dropped from the amended plaint- in which'for the first time thecharge of an unlawful assembly was brought in.
All these are matters which required careful consideration by thelearned Magistrate; but they, however, do not seem to have received
such consideration. Had they been so considered, I doubt very muchthat he could and would have held that count 1 has been provedbeyond reasonable doubt.
A close examination, as set out above, of the evidence led at thetrial raises in my mind a strong doubt that the convictions of the sixaccused are right. The accused are entitled to the benefit of thisdoubt.
It now remains for me to set down our reasons for overruling theobjections, put forward bpth by learned Counsel for the defence, andby the learned Additional Solicitor-Genera* appearing for therespondent, to Mr. Pullenayagam, who, as set out earlier, representedthe "aggrieved party", Mrs. Bandaranaike, being heard at the hearingof this appeal.
Mr. Pullenayagam relies on the provisions of Section 260 of theCode of Criminal Procedure Act in support of his claim to representMrs. Bandaranaike, who, he submits, is the “aggrieved party” in thiscase, and to address this Court on her behalf. The said Section 260provides as follows:
“Subject to the provisions of this Code and any written lawevery person accused before any criminal court may of right bedefended by an attorney-at-law, and every aggrieved partyshall have the right to be represented in court by an attorney-at-law.”
It must be noted that, as far as the right of an accused person isconcerned, the provisions of the said Section 260 are the same asthe provisions contained in Section 287 of the now repealed CriminalProcedure Code (Chap. 20). The right given to an aggrieved party bythe latter part of the said Section 260 was not in the said earlierCode. Another important point of difference is that even the right ofthe accused person is made “subject to the provisions of this Codeand any written law."
The objection put forward on behalf of the defence and therespondent against the Counsel appearing or the said aggrievedparty being heard by this Court is three-fold: that Mrs. Bandaranaikeis not now, before this Court, an aggrieved party: that the right ofrepresentation granted by the said section to an aggrieved party isconfined to the original Court and is not available before an AppellateCourt: that, the right of representation is distinct from the right to beheard, and the right given to an aggrieved being only a right to berepresented, he cannot, in any event claim that he has a right also tobe heard.
I shall first consider the argument that Mrs. Bandaranaike doesnot come before this Court as an “aggrieved party". That she was,in relation to the charges framed against the accused before theMagistrate’s Court, an “aggrieved party" before the.learnedMagistrate is not challenged by learned Counsel opposingthis application. The charges so framed were of intentionallyinsulting Mrs. Bandaranaike and of committing mischief in respect ofproperty belonging to her. Although the respondent was thecomplainant before the Magistrate’s Court, the virtual complainantwas Mrs. Bandaranaike, The complaint to court.was in respect ofoffences alleged.to have been committed against Mrs. Bandaranaike.She was therefore, undoubtedly a person aggrieved by the conductso alleged against the accused. Mrs. Bandaranaike was clearly an“aggrieved party” as contemplated by the provisions of Section 260the said Code of Criminal Procedure Act (hereinafter referred to as“the Code”). It is the submission of learned Counsel in support of thisobjection that, as all the accused have been found guilty by thelearned Magistrate of the offence of intentional insult under Section484 of the Penal Code, and as there is no appeal against theacquittal on the charges of mischief, Mrs. Bandaranaike.does notcome before this Court as a person complaining of a grievance: thather grievance has been gone into by the Magistrate's Court and shehas been granted relief: that as she has succeeded before theMagistrate's Court, she is no longer a person with a grievance. Thissubmission is, in my opinion, untenable. The accused, who havebeen found guilty by the Magistrate's Court, have come before thisCourt to have the said finding set aside. This court has the power to
grant the accused the relief they pray for; and, if such relief isgranted, the resulting position would be that the relief, which Mrs.Bandaranaike obtained at the hands of the learned Magistrate, istaken away from her, and, as far as she is concerned, she is re-visited with grief. The verdict of a Magistrate’s Court is not final. It isliable to be set aside in appeal. A person who comes before aMagistrate’s Court complaining of an offence committed against him,- whether as a complainant or as a virtual complainant – becomesimpressed with the character of an “aggrieved party”, and mustcontinue in that capacity throughout the proceedings – not only in theMagistrate’s court, but also in the event of an appeal, theproceedings, before the Appellate Court or Courts – until thedecision, which, under the law, is final, is made. This submissionmust, therefore, fail.
It has also been argued that the said right is restricted to theCourts of First Instance – the trial court, and court holding an inquiry.A reading of the said Section 260 shows that the right granted to aperson accused is a right exercisable by such person before anycriminal court "before which he stands accused, and that the rightgranted to an aggrieved party is a right excercisable by such party“in Court.” The words “Criminal Court” are not defined in the saidCode; but there is no doubt but that a Magistrate’s Court at any ratewould be included within the term “Criminal Court”. The question thenis whether in the case of an accused such right is not available alsobefore an Appellate Court. The section, it must be noted, provides forthe exercise of such right before “any criminal court.” It is by itselfwide enough to cover all courts – whether original or appellate -which have jurisdiction to hear and make orders in any criminalmatter.
Article 138(1) of the Constitution vests the Court of Appeal withjurisdiction to correct, inter alia, by way of appeal, all errors in fact.orin law committed by any Court of First Instance, and also sole andexclusive cognizance, by way, inter alia, of appeal, of all inter alia,prosecutions of which Courts of First Instance may have takencognizance. The provisions of Section 325(1) of the Code dealingwith the procedure in regard to appeals from the Magistrate’s Court,
and Section 349(1) of the Code in regard to appeals from the HighCourt make no express reference to any appearance by an attorney-at-law. Section 353 of the Code however, refers to the power of theCourt of Appeal to assign to an appellant an attorney-at-law in anycriminal case where the Court is of opinion that the appellant is inneed of legal aid, but has no sufficient means to obtain such aid. Inthe Court of Criminal Appeal Ordinance (Chap. 7), Section 11 dealtwith the power of the court, in certain circumstance, to assignCounsel to an appellant who is undefended; and Section 12 dealtwith right of the appellant to be present at the hearing of the appeal;and Section 13 provided for the Crown to be represented on everyappeal to the said Court. There is, however, no express provisioneven in the said Ordinance (Chap. 7) granting an appellant the rightto be represented by a lawyer at the hearing of an appeal before thesaid Court. Nor was there an express provision in the repealedCourts Ordinance (Chap. 6) in regard to the right of an appellant'to.the then Supreme Court to appear through a lawyer. Section 344 andSection 345 of the old Code (Chap. 20) set out the procedure to befollowed when an appeal from the Magistrate’s Court came up forhearing before the then Supreme Court. Although there had been noexpress provision in the Courts Ordinance, (Chap. 6), the Court ofCriminal Appeals Ordinance (Chap. 7) and in the Criminal ProcedureCode (Chap. 20) yet, Counsel have, even before the turn of thiscentury – ever since the year 1898 when the Criminal ProcedureCode (Chap. 20) came into operation and right down to the year1978, – been appearing for appellants in appeals from theMagistrate’s Court to the then Supreme Court. Whenever a party wasto be denied the right to be heard in a court of law, either personallyor by pleader before an appellate court, the legislature expressly saidso – vide Section 366 of the Code. The words “any Criminal Court”in Section 260 of the said Code must, therefore, be construed toinclude not only the Magistrate’s Court but also an appellate Courthearing an appeal from a Magistrate’s Court.
The words “in Court” with reference to an aggrieved party inSection 260 of the said Code seems to be even wider than the words"any Criminal Court”. It admits of no limitation.. I am of opinion that theright granted to an “aggrieved party” to be represented in Court
extends to representation even before the Court of Appeal when suchCourt hears an appeal from a Magistrate's Court.
I shall now consider the last of the submissions made in support ofthe aforesaid objection, viz: that the right to be represented does notconfer a right on an attorney-at-law, who so represents an aggrievedparty, to address Court.
The meaning given, in the Oxford English Dictionary – Vol. 8 -(1933, edt.), to the word “represent” is: to place (a fact) clearly beforeanother, to state or point out explicitly or seriously to one with a viewto influencing action or conduct – to make .objections againstsomething; to protest. Wharton: Law Lexicon (14 edt.) p. 869, defines“representation”: standing in the place of another for certainpurposes, as heirs, executor, or administrators – any indication bywords, letters, signs or conduct by one person to another of theexistence of a fact. The plain, ordinary meaning of the words “torepresent” and “representation" is, therefore, clearly to make, eitheron one's own behalf or on behalf of another, statements orsubmissions to another orally or in writing, in regard to any matter orthing with a view to influencing the action or conduct of that other. Itdoes not connote merely a silent and an inarticulate presence. Anattorney-at-law is one who is a member of a profession, the chiefcharacteristic of which is to plead on behalf of one who has to placematters before another. He is trained and skilled in the art of doingso; and he is held out as one entitled to assist and advise clients andto appear, plead or act before a court of law. The presence of such aperson before a court of law. would be meaningless if he is merely tobe seen and not heard.
Reliance was placed on the provisions of Section 41(1) of theJudicature Act No. 2 of 1978, in support of the submission that thereis a distinction between a right to be heard and a right to berepresented only. The contention is that it is only an attorney-at-lawrepresenting a party, who has a right to be heard, who could himselfclaim a right to be heard by Court. An analysis of the provisions ofSection 41(1) reveals that the latter part of that section gives the rightto be represented by an attorney-at-law before a court of (aw to twocategories of persons – those who are parties to any proceedings ina court, and those who either have or claim to have the right to beheard in any proceedings in a court. The distinction between thesetwo categories is made even more explicit by the provisions of sub-section (2) of the self-same Section 41. An attorney-at-lawrepresenting either of these categories would undoubtedly have theright to address Court. I do not think that the provisions of this sectioncan be construed to mean that the right to address Court is givenonly to an attorney-at-law, who appears for a party who has or claimsto have the right to be heard. The provisions of this section seems tome to support the proposition that the right of representation carrieswith it the right to address Court and that the right to address Court isin no way dependent upon the right in the person, whom theattorney-at-law so represents, to be heard. That to represent anotherin court carries with it the right to make submissions on behalf ofanother also finds support in the provisions of subsections (1) and (2)of Section 261 of the said Code. These subsections refer to theappearance in Court of one on behalf of another as a representation.
It cannot be doubted even for a moment that the person, who, interms of the two aforesaid subsections, represents the other hasn'tthe right to address the Court, and be heard by the court. It seems tome that there is no difference, as far as the right to address Court isconcerned, between the right granted to a person to be heard, andthe right granted to a person to be represented, by the provisions ofthe Code of Criminal Procedure Act No. 15 of 1979. They bothconnote a right to address court.
The right given by the provisions of Section 260 of the Code of1979 to an “aggrieved party" is one given for the first time in thehistory of criminal procedure of this country. The intention of theLegislature seems clearly to be to give the “aggrieved party" also anopportunity of placing before court any relevant matters which suchparty desires to bring to the notice of Court: If the intention wasmerely to ensure the presence of an attorney-at-law in Court whocould assist out if and when such assistance is sought by court, suchan express provision, after the earlier Code of 1898 (Chap. 20) hadbeen in operation for about 80 years, was hardly necessary; for, it hasalways been open to a court to obtain such assistance ex mero motu.
The possibility that such a construction could result in the courthaving to listen, in every criminal case, to an extra attorney-at-law(and even more in the event of there being more than one such party)is not a weighty consideration which should stand in the way of thisnew right given to an “aggrieved party” being made meaningful andeffective.
The right of an attorney-at-law who appears for another who isentitled to be represented in court, is, however, subject, as is the rightof all other attorneys-at-law appearing for other parties, to theoverriding right of this Court to refuse the right of audience to anyattorney-at-law for good cause, – vide: Land Reform Commission v.Grand Central Ltd.(U)
The final submission too was, therefore not entitled to succeed.The objection, put forward on behalf of the defence and therespondent, was accordingly overruled; and Mr. Pullenayagam, whorepresented the “aggrieved party”, Mrs. Bandaranaike, was heard bythis Court.
For the reasons set out earlier, the appeals of the six accused-appellants are all allowed. The verdict recorded, and the sentencespassed by the Magistrate's Court are all reversed; and the 1st to the6th accused-appellants are all acquitted.
TAMBIAH, J. – / agree.