JAYARATNE BANDA v. ATTORNEY GENERAL

024-SLLR-SLLR-1997-V3-JAYARATNE-BANDA-v.-ATTORNEY-GENERAL.pdf


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JAYARATNE BANDAv.
ATTORNEY-GENERAL
COURT OF APPEAL.
QUNASEKERA, J. (P/CA).
DE SILVA, J.
C.A. NO. 83/93.
H.C. ANURADHAPURA 563/93.
JUNE 3. JULY 4 AND AUGUST 1.1997.
Code of Criminal Procedure – Murder – Public Security Ordinance – Section 4 -Emergency Regulation 24(1)67, 24(1) (b) – Section 32 Penal Code -Sections 164, 165, 166,167, Sections 436, 456(A) – Code of Criminal Procedure -Constitution Article 155(2) (3) – Failure to specify the correct gazette notification -Does it result in a Miscarriage of Justice? – Requisites of a charge.
The accused-appellant was indicted with having committed murder on 7.5.88with two others, an offence punishable under Emergency Regulation (ER) 24(1)67published in Gazette (Extraordinary) of 20.6.1989 bearing No. 53/7 read withSection 32 Penal Code; and was convicted.
On appeal, the question arose as to whether there was a proper indictmentbefore Court to convict the accused-appellant as the offence has beencommitted on 7.05.88, but the gazette mentioned in the indictment was dated20.6.1989.
The offence can be clearly identified as that created by the identicalregulation No. 24(1) b in severals ER's as well, right throughout the periodnotwithstanding the fact that different gazettes have been issued to coverdifferent periods of time.
Examining Section 4 Public Security Ordinance. Article 155(2), 155(3) of theConstitution, it would be safely concluded that the offence with which theaccused was charged was in existence and known to the law at all times of thecommission of the act
Per de Silva J.,
*A mere irregularity may or may not result in a miscarriage of justice, but afundamental defect such as the complete absence of a charge is placed on a
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different footing, such a defect is deemed to cause a miscarriage of justice in thesense of a mistrial due to sound reasons of policy."
(2) The indictment in issue is in conformity with every requirement imposed bythe code except for the error in the date of the Gazette Notification. Had theobjection to the indictment been taken at the trial it would have been open tocourt to have acted under Section 167 of the Code of Criminal Procedure Act toamend the indictment. Thus the failure to give the correct particulars of thegazette has caused no prejudice to the accused-appellant.
APPEAL from the High Court of Anuradhapura.
Cases referred to:
Abdul v. Bribery Commissioner -1991 -1 SLR 76.
Molagoda v. Gunaratne – 39 NLR 226.
Om Prakash v. State ofUttara Pradesh -1960 Criminal Law Journal 544.
King v. Punchi Banda.
Queen v. Alpin Singho – 60 NLR 45.
D, W. Abeykoon PC. with Dr. Ranjith Fernando and Ms Chandrika Morawaka foraccused-appellant.
Kapila Waidyaratne, S.S.C. for Attorney-General.
Cur. adv. vult.
September 12,1997.
A- N DE SILVA, J.
The accused-appellant was indicted in the High Court ofAnuradhapura with having committed murder by causing the death ofDewagiri Mudiyanselage Premaratne together with two others namedChandare and Asoka on 7/05/1988, an offence punishable under theEmergency Regulation 24(1)67 published in Gazette (Extraordinary)dated 20th June 1989 bearing No: 53/7 read with Section 32 of thePenal Code.
The Trial had been before a Judge of the High Court and the afterthe conclusion of the case the accused-appellant had beenconvicted of the said charge on 26/8/1993 and sentenced to lifeimprisonment.
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It. is to be noted that even though the names of two others werementioned in the indictment no evidence of their complicity in thecrime had transpired at all in the Case.
The case for the prosecution was that on the 7th of May 1988around 7.30 p.m. deceased Dewagiri had been playing cards withhis three children, seated on a bed. At that stage the accused-appellant had entered the house from the front door and fired at thedeceased who sustained injuries on the back of the chest and hehad succumbed to his injuries immediately.
To establish the above facts the prosecution had led the evidenceof two eye witnesses namely the wife of the deceased P.Punchimahattaya and the daughter of the deceased DewagiriMudiyanselage Nirmala Kumari.
Both of them had identified the accused-appellant by hisnickname as “Pokuta". The second witness Nirmala Kumari hadmade a complaint the next morning to the army personnel at theMeegaswewa Camp who in turn had informed the Medirigiriya Policeas the incident had occurred within the jurisdiction of that PoliceStation.
The incident had taken place during the J. V. P. terror period anddue to this reason the family members had not been able to removethe wounded person to a hospital or inform the Police soon after theincident. The Police Officer Dewapriya who conducted theinvestigations testified to the fact that after the incident accused-appellant could not be arrested as he had absconded for a period of3 months. Dr. Atapattu who conducted the post mortem examinationhad also given evidence for the prosecution.
At the conclusion of the prosecution case no evidence had beenled on behalf of the defence except for a dock statement of theaccused-appellant where he denied the incident,
At the hearing of this appeal the Senior Counsel for the appellantsubmitted that the two prosecution witnesses had contradicted each
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other and it is therefore unsafe to act on this contradictory evidence.The daughter Nirmala Kumari had stated that she did not see theaccused shooting and did not hear the gun shot. Counsel submittedthat the evidence of this Witness sheds a doubt on the prosecutionversion that the accused-appellant was the person who shot at thedeceased and the benefit of that doubt should have been given tothe accused-appellant. He further stated that in the indictmentforwarded by the Attorney-General there are two other namesmentioned as accused and the prosecution could not explain whytheir names were included and what acts they had committed. Inthese circumstances Counsel submitted that there is a doubt withregard to the evidence of the so called eye witnesses. The Counselcontended that some others other than the accused could have firedthe shot and in these circumstances it was incumbent on theprosecution to prove that the accused-appellant shared a commonmurderous intention to bring home liability against the appellant.
It is to be noted that witness Nirmala Kumari had stated in herevidence that she saw the accused-appellant armed with a gun. Atthe time of the incident she had been a 17 year old girl. She hadbeen playing cards with the deceased father and her younger sisterswhen suddenly her father was shot and she may not have observedall the things that happened around her at that moment due to theshock.
However the wife of the deceased P. Punchimahattya had statedthat she saw the accused-appellant coming into the house armedwith a gun and firing at the deceased. She had identified theaccused-appellant as she had been living in the same Village for 20years since her marriage. There is no reason for us to disbelieve thewife as her evidence is supported by the medical evidence.
According to the medical evidence the shot had been fired from avery close range i.e. from about 2-3 yards. If it is 2-3 yards fromdeceased's body the shooting had taken place inside the house andwho ever shot had come inside the house to shoot. The wife of thedeceased had said that she was seated on the ground facing thedoor and therefore she had every opportunity to see the full incident
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and she had positively identified the accused-appellant as theperson who shot.
At the trial the defence has suggested that these witnesses hadfalsely implicated the accused-appellant because the Army andPolice wanted them to do so. We are unable to agree with this. Theaccused-appellant had been identified by his nickname andaccording to the wife of the deceased she knew him only by thatname and his real name was not known to her. As suggested by thedefence if there was a Police and Army 'touch up' there was nodifficulty for the interested parties to give the real name of theassailant to the mouth of the witness. Since the medical evidencecorroborated the evidence of witness Punchimahattaya there is noreason for us to reject the evidence of this witness.
After the appeal was argued and the judgment was reserved wefound that an incorrect Gazette notification had been specified in theindictment. The offence was alleged to have been committed on the7th of May 1988 and the Gazette mentioned in the indictment wasNo. 53/7 dated 20th June 1989. At that stage we invited the parties tofile written submissions on the question whether there was a properindictment before the Court to convict the accused-appellant. Bothparties filed their respective written submissions on the 1st of August1979.
The Senior Counsel for the defence had submitted that theparticular regulation under which the appellant was charged cameinto force after the incident and very much later, i.e. in 1989 andtherefore at the time of the commission of the offence there was nooffence known under the Emergency regulations and the indictmentthat had been presented offended the general principles againstretrospective operation of penal legislation.
The Senior State Counsel in his submissions contended that theaccused-appellant was not indicted in respect of an offence whichdid not amount to an offence at the time it was committed. He pointedout that the self-same act was an offence in terms of regulation 24 (1)(B) of the Regulations dated 18/4/1988 which was produced marked'X' at the appeal stage.
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» It is significant to note that the offence can be clearly identified asthat created by the identical regulation number viz (1) (b) in severalEmergency Regulations as well, right throughout the periodnotwithstanding the fact that different gazettes have been issued tocover different periods of time.
In support of the above contention the learned Senior StateCounsel relied on Section 4 of the Public Security Ordinance whichstates thus:
"The expiry or revocation of any proclamation shall not affect or bedeemed to have affected1'.
The past operation of anything duly done or supposed to bedone under part 11 of this Ordinance while that part was in
operation,
Any offence committed or any right liability or penalty acquired orincurred while that part was in operation,
The institution, maintenance or enforcement of any actionproceeding or remedy under that part in respect of any suchoffence, right liability or penalty.
It is also relevant to note articles 155 (2) and 155 (3) of theConstitution.
Article 155 (2) of the Constitution reads as follows:-
"The power to make emergency regulations under Public SecurityOrdinance or the law for the time being in force relating to PublicSecurity shall include the power to make regulations having the legaleffect of over-riding amending and suspending the operation of theprovisions of any of law except the provisions of the Constitution".
Article 155 (2) of the Constitution reads as follows
“The Provisions of any law relating to Public Security empoweringthe President to make emergency regulations which have the legal
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effect of over-riding, amending or suspending the operation of theprovisions of any law shall come into operation except upon makingof a proclamation under such law bringing such provisions intooperation".
From the above, one could safely conclude that the offence withwhich the accused was charged was in existence and known to lawat all times of the commission of the act.
The next question to be considered is whether the accused-appellant was misled by the failure to specify the correct GazetteNotification and thereby resulted in a miscarriage of Justice.
Section 166 of the Code of Criminal Procedure Code Act No. 15 of1979 states that “any error in stating either the offence or theparticulars required to be stated in a charge and any omission tostate the offence or other particulars, shall not be regarded at anystage of the case as material, unless the accused misled by sucherror or omission".
The requisites of a charge are set out in Section 164 and 165 ofthe Code of Criminal Procedure Act. The purpose underlying thesetwo Sections is clear. The accussed-appellant must be wellappraised of the charge against him in order to defend himselfagainst it. If the mistake in the charge induces a certain belief in theaccused, which affects the proper conduct of his defence that couldbe regarded as a material object.
The three illustrations to Section 166 provide clear indications as toits scope. Illustration 1) relates to a failure to set out the mens rea ofthe offence. Illustration (b) relates to a failure to comply with Section165(3). In both cases the ultimate test to be applied is the directeffect of the conduct of the defence. This is further clarrified byillustration (c). In the present appeal can the defence be heard to saythat had the correct date and number of the gazette was specified inthe indictment, the defence would have been different.
In the instant case the charge levelled against the accused-appellant was that he committed the murder of Dewagiri Premaratne
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on the 7th of May 1988. He had been defended by an Attorney-at-Law at the Trial. The defence the accused-appellant had taken was asimple denial of the commission of the crime. There is nothing in thepetition of appeal to indicate that due to the mistake in the indictmentthe accused-appellant was misled and thereby caused prejudice tohis defence.
In the circumstances it is not difficult for us to conclude that thepresence or absence of the ‘error’ could not have made anydifference to the general conduct of the defence and thereforecannot be regarded as a material error in terms of Section 166 of theCode.
The Senior State Counsel submitted that the ‘error’ in theindictment was curable and had not caused any substantialmiscarriage of justice to the accused-appellant and contended thatSections 436 of the Code of Criminal Procedure Act No. 15 of 1979and Section 456 A of Amended Act No. 52 of 1980 would beoperative in these circumstances.
It is to be observed that Section 436 and 456 A have noapplication to a fundamental defect of procedure. See Abdul v.
Bribery Commissioner
A mere irregularity may or may not result in a miscarriage ofjustice, but a fundamental cfefect such as the complete absence of acharge is placed on a different footing. Such a defect is deemed tocause a miscarraige of justice in the sense of a mistrial due to soundreasons of policy.
In Molagoda v. GunaratneCounsel for the accused-appellantsought to elevate the question of the wrong Gazette in the chargeto a fundamental defect of procedure. He contended thatan omission to frame a charge in accordance with the provisions ofthe Criminal Procedure Code was an omission to frame a chargeat all.
This argument was rejected by the Supreme Court which held thata breach of a specific rule of law in the Code was curable by the
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application of Section 425 of the Old Criminal Procedure Code (whichis equivalent to section 436 of the present Code) if the breach hadnot caused a failure of justice.
In an Indian Case Om Prakash v. State of Uttara Pradesh™ theaccused was charged and convicted under Section 165A of thePenal Code of India – High Court finding that Section 165A was notenacted when the offence was committed, altered the conviction toone under Section 161/109 of the Penal Code. It was held that theerror in the charge was not material when no objection was raised atany earlier stage and no prejudice had been suggested or could befound.
The indictment in issue is in conformity with every requirementimposed by the Code except for the error in the date of the Gazettenotification. Had the objection to the indictment been taken at the trialit would have been open to Court to have acted under Section 167 ofthe Code of Criminal Procedure Act to amend the indictment. SeniorCounsel for the appellant too conceded that is was open for theprosecution to have amended the indictment at any stage before theclose of the prosecution case.
Having considered the submission of the Learned Counsel for theappellant and the Learned Senior State Counsel and examined theprovisions of law and the decisions cited we hold that the failure togive the correct particulars of the Gazette has caused no prejudice tothe accused-appellant.
We note with regret that callousness in which this indictment hadbeen drafted and signed. Senior Officers of the Attorney-General'sDepartment who man special units should be more careful in placingtheir signatures to indictments specially when the law permits onlyan officer of a particular designation should sign the indictment.
The relevant gazette that is applicable to the accused-appellantExtraordinary gazette of the Democratic Socialist Republic of SriLanka No. 502/3 of 1Bth April 1988. The relevant regulation is 24 (1)
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of the said Gazette. The material portion of that regulations readsthus ‘shall be liable to suffer death or imprisonment for life”. TheSupreme Court in King v. Punchi Bandaw has construed the abovewords as enabling the Trial Judge to impose a term of imprisonmentshort of life imprisonment. The above view had been confirmed bythe Court of Criminal Appeal in Queen v. Alpin Singhom.
The Inspector of Police Dewapriya who conducted theinvestigations into this case has stated in his evidence that theaccused-appellant had absconded after the incident and that he wastaken into custody on 20.8.1989 at Nuwara Eliya. We find that theaccused-appellant had been kept in detention thereafter and neverbeen enlarged on bail. After conviction on 26.8.1993 he is in remandcustody pending the decision of this appeal.
We have taken the above matters into consideration and are ofthe view that the ends of justice would be satisfied if a lessersentence is imposed. Accordingly we set aside the sentence oflife imprisonment imposed on the appellant and sentence him to aterm of eight years from today. Subject to the above variation thisappeal is dismissed.
GUNASEKERA, J. (P/CA) -1 agree.
Appeal dismissed.