003-NLR-NLR-V-73-K.-B.-MUTTU-BANDA-Appellant-and-THE-QUEEN-Repondent.pdf
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Muttu Banda v. The Queen
[CotmT os' Ckemtkal Appeal]
1969 Present: Alles, J. (President), Wijayatilake, J., andPandlta-Gunawardene, J.K.B. MTJTTU BANDA, Appellant, and THE QUEEN, RespondentAppeal No. 51 of 1969, with Application No. 69
Evidence—Investigation of cognizable offence—Statement made by a witness to policeofficer—Omission to mention a material fact—Admissibility of evidenceconcerning it—Information Book—Power of Court to use it at the trial—EvidenceOrdinance, s. 155—Criminal Procedure' Ctfde, s. 122 (3).
AVhere, in a statement made by a witness to a police ofiicer in the course of aninvestigation under Chapter 12 of the Criminal Procedure Code, the witnessomitted to mention a material fact narrated by him in evidence subsequentlyat the trial, the statement to tho police as recorded in the Information Bookmay be utilised by the Court undor section 122 (3) of the Criminal ProcedureCode to aid it at the trial in order to discredit tho witness.
Decision in The Queen v. Raymon Fernando (66 H. L. It. 1) not adopted.
The accused, who was charged with murder, was convicted by a five to twoverdict of the jury of culpable homicide not amounting to murder. Amaterial question that arose for consideration was whether the deceased had agun with him at tho time ho was attacked by the accused ; if the deceased hoda gun, it was not unlikely that the accused struck the deceased with a swordfatally in the exercise of the right of private defence. The two eye witnessesfor the prosecution stated in their evidence-in-chief that the deceased had sentaway the gun shortly before the time of attack. In cross-examinatiod^alsothey denied that the gun was with the deceased at the time of the attack. Butin their statements to the police soon after the incident, they had made nomention of the fact that tho deceased sent away the gun at any stage. Thisserious discrepancy between their evidence in court and their statements to' the■ police was not brought to tho notice of the trial Judge by the Crown Counsel.
Held, that thi3 was a case which required the intervention of the Court interms of section 122 (3) of the Criminal Procedure Code.
Colvin R. de Silva, with D.H. Balachandra, I. S. de Silva and IF. JustinPerera (assigned), for the accused-appellant.
S.C. 170/67—M.C. Kandy, 54133AlPPEAL against a
conviction at a trial before the Supreme Court.
J.R. Mi Perera, Crown Counsel, for the Attorney General.
Cur. adv. wit.AXLES, J.—Alutlu Banda r. The Queen
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July-22,1969. Aixes, J.—
At the conclusion of the argument in this case we set aside the convictionof the appellant and acquitted him. We now set down the reasons forour order.
The accused-appellant, who was charged with the murder of one 51.R.Dissanayake was convicted by a five to two verdictof the jury of culpablehomicide not amounting to murder and sentenced to 6 years’ rigorousimprisonment. It was submitted by learned counsel for the appellantthat Crown Counsel had conceded in the course of the trial that he was notasking for a verdict of anything more than culpable homicide not amountingto murder. The learned trial Judge also directed the jury’ that theonly possible verdict was one for a lesser offence. Consequently counselinvited us to hold that the two dissenting jurors could not have beensatisfied that the case for the prosecution had been proved beyondreasonable doubt and intended to acquit the prisoner.
The deceased Dissanayake lived with his wife Sumithra Alawatugodaand their children in a house close to which there were other houses.The immediate neighbour of the deceased was his aunt Palingu Menikeand at the rear of the deceased’s house lived a Police Sergeant called Bandawith his family. The main witnesses for the prosecution are SumithraAlawatugoda and Palingu Menike who purported to have identified theaccused as the assailant. Sumithra Alwatugoda states that about 9 p.m.on the night in question the dogs began to bark and the deceased thinkingthat there might be robbers wont out with his gun to the rear of thehouse and she followed him with a lamp. When they got to the rear ofthe house sho saw Sergeant Banda and Banda asked the deceased "Haveyou brought the gun to shoot? ”. The deceased then said "I am not aperson who shoots at people like that; I brought it for my protection ”,Thentho deceased said ‘‘If there are such misunderstandings please removeit from your head ”. While this conversation was in progress PalinguMenike came from her house also with a lamp. It would appear that- therewas an altercation between Sergeant Banda and the deceased and as aresult, other persons in the neighbourhood came on the scene. The firstperson who came there was one Abcyratne, tho brother-in-law of SergeantBanda. Abe ratne came with a club and inquired from the deceasedwhether the gun was brought to shoot. Then the deceased remarked tohis daughter “ Daughter, these people have got excited as a result of mybringingthis gun "and so saying handedthe gun to his daughterIndranceto be taken home. Indranee took the gun from tho deceased ancl wenthomo. Almost simultaneously with the arrival of Abcyratne, accordingto the evidence of both the widow and Palingu Menike, other persons whowere relations of Sergeant Banda arrived on the scene. They wereLeelawathio Ivumarihamy sister of the accused, Madndeniya a brother ofSergeant Banda, Veerasamy and Nagasena. Madadeniya had a sword.Vccrasamy and Nagasena had clubs. Then according to Palingu Menikesho said, “why are you trying to quarrel over unnecessary things? ”and Sergeant Banda started abusing Palingu Menike in obscene language.
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ALL.ES, J.—JIuUu Banda v. The Queen
At that stage the accused who was the cider brother of Sergeant Bandaand who lived across the paddy field about 500 feet away came runningup with a sword and struck the deceased on the head. It is not clear onthe evidence whether the deceased sent away the gun before the othersarrived on the scene armed. Having regard to the fact that all thoso whocame there armed were living in the vicinity of Sergeant Banda’s houseand were closely related to him, it seems very likely that they came armedbefore the deceased sent away the gun. There is evidence that all thosewho came armed also inquired from the deceased whether he hadbrought the gun to shoot.
A material question thatarose for consideration at (he trial was whetherthe deceased had a gun with him at the time ho was attacked by theaccused. Learned counsel for the defence cross-examined the widowand Palingu Menike on the footing that the gun was with him at the timeof the attack. It -was suggested to the witnesses that having regard tothe fact that the others were armed he would have at least called for thegun again to protect himself. It was pointedly suggested to the widowin cross-examination that the story about the gun being taken away wasa fabrication. In view of the suggestion of the defence it was necessaryto have this matter probed more fully. We have examined the state-ments made by the widow and Palingu Menike to the police soon afterthe incident. In those statements, the witnesses have made no mention ofthe fact that the deceased sent away the gun at any stage. The first intimationthat the police had that the gun was sent away before the attack was whenthey recorded the statements of the daughters of the deceased several dayslater. There was therefore material in the Information Book Extractsthat there was a serious omission in the evidence of the two eye-witnessesas to whether the deceased was armed or not at the time of the assault.If the statements of Sumithra Alawatugoda and Palingu Menike had beenbrought to the notice of the trial Judge by Crown Counsel I have no doubtthat ho would have prominently placed this matter before the jury anddrawn their attention to this serious discrepancy between their evidencein court and their statements to the police.
If, as it is likely, the deceased did not send away the gun at any stagebefore he was attacked, especially when he would have needed the gun for.his own protection at the time the five others were armed, it may wellbe that the accused would have been entitled t o plead that he acted in theexercise of the right of private defence. The evidence was to the effectthat this was a very dark night; that Sergeant Banda’s compound wasplanted with several overhanging trees; that there was a violentaltercation between the deceased and Palingu Menike on the one hand andSergeant Banda on the other which was loud enough to be heard bythe accused at his house 500 feet away and if the deceased was armed witha gun at the time, which those present would not have known whether itwas loaded oir not, it might well be that in attacking the deceased theappellant had a reasonable apprehension that the deceased might haveused his gun and therefore was justified in acting in defence of his brother.
AXLES, J.—-Mutlu Banda n. The Queen
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In this connection it is also relevant to note that according to the widowthis was tho first occasion that the deceased went out with the giuiand tho suggestion of the defence is that he' did so on this occasion notwith the object of looking for thieves but in order to creato trouble withSergeant Banda with whom ho was not on good terms.
Tho failuro of the witnesses to mention in their Police statements thattho deceased handed the gun to Indranco before ho was attacked is anomission on a vital part of the transaction. In Queen v. Ray mo nFernando1 it was held that an omission to mention in a statementa relevant fact narrated by the witnesses in evidence subsequently,does not fall within tho ambit of the expression “former statement”in Section 155 of tho Evidence Act. How then could this vital matter bebrought to the notice of the jury ? Under Section 122 (3) of the CriminalProcedure Code it is the Court that has overall control over the statementsrecorded in tho course of a Police investigation and the Court has a rightto utilise the statements to aid it at the inquiry or trial. Wo are of theview that this is a case which required the intervention of the court in theadministration of justice. If a police officer who recorded the statementof a witness in the course of a police investigation was asked whetherthere wras any mention in the statement of a material fact and he answeredin the negative after refreshing his memory from the written record,we see no reason why the oral evidence so elicited should not be admissiblewithout the necessity of the record being proved and marked. Differentconsiderations would apply if aparty wishes to prove the written record.To prevent the defence from discrediting a prosecution witness in such acaso would be a serious fetter on the right of cross-examination. Moreoverif the statement is used by the police officer for the purpose of refreshinghis memory, the defence have a right to cross-examine the witness on thestatement. We are therefore, with all respect, not inclined to adopt thedecision in the case of Raymon Fernando. In that caso prejudice wascaused to tho prosecution by tho questions put in cross-examination to theaccused being held to be inadmissible. In this case it could have beenused properly in the interests of the defence. The proper approach tothe cross-examination of witnesses from the statements recorded in thecourse of a Police investigation is found in the observations of Garvin
C.J. in the Divisional Bench case of King v. Cooray2 where the learnedJudge said—
“It may indicate lines of inquiry which should be explored hi thehighest interests of justice, or may disclose to a Judge that a witness isgiving in evidcnco a story materially different from tho story told byhim to the investigation officer shortly after the offence. ”.
Wo think therefore, that had this omission been brought to the notice ofthe jury, it would have materially affected the decision in the case. Tavo.questions arise for consideration as a result of this omission. Firstlyit might have affected the credibility of tho two chief prosecutionwitnesses and induced tho majority of tho jurors to adopt the view taken
* (1962)66 N. L. R. 1.* (1926) 28 X. L. R. 83.
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Veeriah v. Selva rajah
by tho dissenting jurors and acquit him and secondly if tho presenceof tho gun in the hands of the deceased was cast in doubt, the plcaof thoright of private defence would havo arisen for tho consideration of thojury. Thelearned trial Judge directed the jury of tho defences of a suddenfight and provocation, but quit© understandably, in tho absence of thoomission in the statements being brought to bis notice, failed to directthe jury on the right of private defence.
Tho appellant being the elder brother of Sergeant Banda may havebeen apprehensive that the deceased at that hour of the night and in thodarkness might have used tho gun on his brother in the course of thoaltercation. Although tho defence has suggested that this was a case ofmistaken identity, it was still open to the jury on tho prosecutionevidence to consider whether the appellant acted in the exercise of theright of private defence. Since only one blow was dealt and the deceaseddied several days later we think, having regard to the nature of the weaponwhich was in the hands of tho deceased, tho appellant could not bo saidto have exceeded the right of private defence. We think, that had thisdefence being placed before the jury, the majority who convicted thoappellant of culpable homicide, might well have been disposed, on areasonable view of the facts, to acquit the appellant on the ground thathe acted in the exercise of the right of private defence.
nr>
Accused acquitted.