Ounasekera v. Attorney-General
1977 Present – Malcolm Perera, J., Vythialingam, J. andRatwatte, J.
K.D. M. GUNASEKERA, Accused-Appellantand
THE ATTORNEY-GENERAL, Respondent
S.C. 69/75—D.C. Colombo B 31
Bribery Act—Evidence—Failure of accused to give evidence—Evidenceof complainant not corroborated thereby—Nature of the inferenceto be drawn—Bribery Act, s. 79 (1)—Misdirection by trial Judge—.Evidence Ordinance, s. 114 (f)—Administration of Justice LawNo. 44 of 1973, ss. 184(2) and 213(2).
The accused-appellant, who at the relevant time was theAdditional District Registrar, Kalutara, was charged with havingsolicited a sum of Rs. 100 and with having accepted a gratifi-cation of a sum of Rs. 100 for performing an official act, namelythat of issuing a birth certificate, punishable under section 19 ofthe Bribery Act.
On the charge of soliciting the presecution case rested solelyon the evidence of the complainant. The complainant stated thathis father was present when the accused asked for the moneyand the latter was listed as the witness on the back of the indict-ment. Indeed the trial had to be postponed on three occasionsbecause this witness was absent, yet the prosecution case waseventually closed without this witness being called.
The trial Judge stated that the accused did not give evidenceand since the complainant’s evidence was uncontradicted no corro-boration was necessary. The accused was convicted on both counts.
Ounaeekera v. Attorney-General
The accused did not give evidence or call any witness on hisbehalf.
Held : (1) That the fact that accused exercises the right expresslygiven to him by the law and remains* silent does not itself renderthe uncontradicted evidence of a prosecution witness trustworthyand reliable. It has to be tested and evaluated in the ordinaryway before it is accepted as being true. The accused’s silence cannever amount to corroboration of a prosecution witness’s evidence,where such corroboration is necessary and this was a case wherethe trial Judge apparently thought it was necessary. In thecircumstances of the case the trial Judge should therefore not haveacted upon the uncorroborated evidence of the complainant.
(2) That it was of course, open to the trial Judge to have convictedthe accused on the uncorroborated testimony of the complainant,provided he found it to be cogent and convincing’, as sec lion 79 (1)of the Bribery Act enabled him to do so. However before doing sothe quality of the prosecution witnesses should be properly estimatedby the trial Judge for there is nothing in the Bribery Act, section79 (1), which of itself enhance, their credibility. Here there hasbeen no critical examination or careful examination of theevidence nor any consideration given to the inherent improbabilitiesof the prosecution case.
Held further : That this was eminently a case where the presump-tion under section 114 (f) of the Evidence Ordinance should havebeen drawn against the failure of the prosecution to call thecomplainant’s father. This presumption however has no applicationto an accused in a criminal case when he exercises his statutoryright to remain silent.
Cases referred to :
Jayasena v. The Queen, 55 N.L.R. 514.
Chelliah v. The Queen, 54 N.L.R. 465.
Gunawardizna v. Republic of Sri Lanka, 78 N.L.R. 209.
The Republic v. D. K. Lionel, S.C. Appeal 165/75—S.C. Mts. of20.12.76.
Reg. v. Jackson, 1953 (1) W.L.R. 591 ; (1953)1 All E.R. 872.
Reg. v. Sparrow, 1973 (2) All E.R. 129 ; (1973) 1 W.L.R. 488 ; 57 Cr.App. R. 352.
Tumahole Bereng et al v. The King, (1949) A.C. 253.
Rex v. Boordett, (1820) 4 B and Aid. 95.
Siriwardena v. Republic of Sri Lanka, S.C. Appeal No. 6-7/75—D.C.Colombo 245/B, S.C. Mts. of 20.12.76.
Moses v. The Queen, 75 N.L.R. 121.
Ganeshan v. The State, S.C. Appeal No. 1/75—D.C. Jaffna, 4666, S.C.Mts. of 3.8.76.
Raphael v. The State, 78 N.L.R. 219.
Chandradasa v. The Queen, 72 N.L.R. 160.
Harry Churn Chuckerbutty v. The Express, 10 Calcutta 1409.
PPEAL, from a judgment of the District Court, Colombo.
H. L. de Silva with Sidat Sri Nandalochana and Miss Pathi-nayaka, for the accused-appellant.
Kosala Wijayatilake, Senior State Counsel, for the State.
Cur. adv. vult.
VYTHl ALIK GAM, J.—Ounaaekera v. Attorney-General
March 21, 19771’. Vythialingam, J.
The accused in this case, who at the relevant time was theadditional District Registrar, Kalutara, was charged as count 1with having solicited an 10.7.1974 a sum of Rs. 100 and on count2 with having on 18.7.1974 accepted a gratification of a sum ofRs. 100 from M. B. Abeyasena for performing an official act, towit : issuing a copy of a birth certificate to the said Abeyasena,and thereby committed offences punishable under section 19 ofthe Bribery Act.
After trial he was convicted on both counts and sentenced tofive years’ rigorous imprisonment and a fine of Rs. 5,000 indefault four years’ rigorous imprisonment on each count. Apenalty of Rs. 100 in default one month’s rigorous imprisonmentwas also imposed on him. The accused appeals against his con-viction and sentence.
The complainant Abeyasena was employed as a labourer inthe Irrigation Department from 1962. In 1971 he was promotedas a temporary peon and was transferred to the head office ofthe Territorial Executive Engineer’s section and thereafter in1973 to the Divisional Office at Horana. He then made effortsto become a permanent employee and for this purpose, he re-quired a copy of his birth certificate. But his birth had not beenregistered and so he had to take steps under section 24 of theRegistration of Births and Deaths Ordinance (Cap. 110). Some-time in April 1974 his father made an application for this purposeand it was the accused who dealt with this matter.
The accused had told him that he required several documentsand after they had been furnished an inquiry was fixed for10.7.1974. On that day the complainant, his father and motherand his elder brother attended the inquiry which was conduc-ted by the accused who recorded the statement of the complai-nant’s father M. D. Emis Appuhamy. The inquiry was not con-cluded on that day as the Grama Sevaka was not present andit was postponed for 16.7.1974. The accused told the complainantin the presence of the others that it was a very difficultmatter and wanted Rs. 100 for himself and another unspecifiedsum for the filing clerk and asked them to come on 16.7.74 withthe money. This was the act of solicitation.
On 16.7.74 the complainant did not go for the inquiry but the.ather, the Grama Sevaka and others attended the inquiry, andtheir statements were recorded by the accused. The accusedapparently did not ask them for the money and there appearsto have been no talk about it. The complainant said that he had
VYRHXA.LINGAM, J.—Gunasekera v- Attorney-General
telephoned the accused and told him about his difficulty and thathe was not able to attend the inquiry. Thereafter he sent a letterto the Bribery Commissioner’s Department about this on theadvice of his superior, the Engineer in charge of the section.
On receipt of this letter the officers of the Bribery Commis-sioner’s Department, in the words of Inspector Premaratne wholaid the trap, took swift action. On 18.7.1974 they proceeded toHorana where they met the complainant and on his agreeing toassist in the detection, they took the usual precautions and laidthe trap. They went to the office of the accused at Kalutara without any prior communication with him about their coming.Police Constable Stanley went with the complainant and watchedthe transaction as the complainant met the accused and gavehim the Rs. 100 which the accused accepted and put into histrouser pocket. On the signal being given Inspector Prema-ratne and constable Abeyasinghe rushed in and recovered theRs. 100 from the accused. This in brief was the prosecution case.Inspector Premaratne, constable Stanley and an Officer from theaccused’s department gave evidence for the prosecution. Theaccused did not give evidence or call any witnesses on hisbehalf.
On the charge of soliciting the prosecution case rested solelyon the evidence of the complainant alone. Although the com-plainant stated that the accused asked for the money in the pre-sence of his father, M. D. Emis Appuhamy he was not called tosupport the complainant’s evidence, even though his name wason the back of the indictment. It is not incumbent on the pro-secution to call all the witnesses on the back of the indictment.They can rest content even with the evidence of one witnessalone, if satisfied with his or her performance in the witnessbox. But in the instant case the prosecution considered theevidence of this witness so important to their case that thetrial had to be postponed on three occasions because of theabsence of this witness even though everyone else was present.
On the first date of trial he was absent without excuse and awarrant was issued. On the next two dates medical certificateswere produced and he was re-cited. On the fourth date when thetrial eventually took place he was again absent and summonswas re-issued on him. But on that date the State Attorney closedhis case without calling him to give evidence. In the circums-tances the trial Judge was invited to draw the presumptionunder section 114 (f) of the Evidence Ordinance that the evi-dence if produced would have been unfavourable to the prose-
VYTHIAUNGAM, J.—-Gurvasefcerct v. Attorney-General
cution case but lie declined to do so. Quite obviously Emis Appu-hamy was reluctant to testify on oath and if ever there was acase where the presumption should have been drawn, this wasit.
The trial Judge said that the accused did not give evidenceand deny the charges and since the complainant’s evidence wasuncontradicted no corroboration was necessary. In other wordsalthough he thought corroboration was necessary yet becausethe evidence was uncontradicted by the denial of the accusedon oath it could be believed. The fact that the accused exercisesthe right expressly given to him by the law and remains silentdoes not itself render the uncontradicted evidence of a witnesstrustworthy and reliable. It has to be tested and evaluated ir>the ordinary way before it is accepted as being true.
Thus in the case of Jayasena v. The Queen, 55 N.L.R. 514, thetrial Judge in effect told the jury that “ from the failure of theaccused to give evidence they may hold, that what Kiri Bandiyasays is the truth ” for “ they must suffer the consequences ” “ ifthey refrain from giving evidence ”. Nagalingam, A. C. J. deli-vering the judgement of the Court of Criminal Appeal said “ Thispassage taken as a whole cannot be said to be above the reaso-nable criticism made by Counsel for the appellants that the effectof it was that the Jury were told that they could legitimatelydraw the inference that Kiri Bandiya’s evidence, which takenby itself may not be regarded as trustworthy could, in view ofthe failure of the prisoners to give evidence on their own behalfand contradict that evidence, be deemed to be true. This direc-tion, there can be little doubt, proceeds on a wrong basis. ”
Then again it would appear from that passage in the trialJudge’s finding that he was of the view that the accused’s failureto deny the charge of soliciting on oath was an admission thatthe complainant’s evidence was true. This is not a proper infe-rence at all. By remaining silent the accused admits nothing. Hehad pleaded not guilty to the charges and the onus was through-out on the prosecution to prove the charges beyond reasonabledoubt. This was a case of flat denial and not one of “ confessionand avoidance ”. In the case of Chelliah v. The Queen, 34 N.L.R.465, Nagalingam, J. observed “ If an inference that an accusedperson is guilty be permitted to be drawn from the fact that hehas not chosen to get into the witness box and deny the case setup against him by the prosecution, whatever the infirmities ofthat case may be, it would be easy to see that far from the bur-den of proof remaining from start to finish on the prosecutionit gets shifted to the accused on the close of the case for the
VYTHIALINGAM, J.—Gunasekera v. Attorney-General
prosecution, whatever the case established against the accusedmay be, a proposition which under our law at any rate carrieswith it its own condemnation
Recently this Court had occasion t« consider the effect of sec-tion 213 (2) which is the same as section 184 (2) of the A. J. L.(Act No. 44 of 1973) in the case of Gunawardena v. Republic ofSri Lanka, 78 N.L.R. 209. In that case what went to the juryin the Sinhala version of the charge was that if the accused doesnot give evidence regarding his innocence, the jury “ can cometo a conclusion against the accused for not giving evidence ”.That is that it is in itself sufficient to justify a conclusion thatthe accused is guilty. It was held that was not the effect ofsection 213 (2). The Hon. the Chief Justice observed of thesection “It has altered the law as to the situations in whichinferences may properly be drawn upon such failure. It has notmade it obligatory on the accused in every case on being a call-ed upon for his defence to give evidence, if he wished to avoidbeing convicted. Failure to testify on the part of the accused isnot declared to be equivalent to an admission by the accused ofthe case against him
The trial Judge also seems to have regarded the silence ofthe accused as corroboration of the complainant’s evidence andthat therefore no other corroboration was necessary. This is anobvious misdirection in law for the accused’s silence can neveramount to corroboration of a prosecution witness’ evidencewhere such corroboration is necessary, and here the trial judgeapparently thought it was necessary. A Divisional Bench of FiveJudges of his Court unanimously held that it was not so in thecase of The Republic v. D. K. Lionel—S.C. Appeal No. 165/75,S. C. Minutes of 20.12.1976. In the course of his judgmentTennekoon, C. J. pointed out “ I might add to this also the factof the accused not giving evidence when he is called upon for hisdefence does not amount to and cannot be treated as corrobora-tion of the evidence given against the accused. Further, failureon the part of the accused to give evidence cannot be treated asan item of evidence against him. It cannot be treated as anevidential fact.”
In the case of Regina v. Jackson, (1953) 1 W.L.R. 5S&, theaccused was charged with being an accessory to theft and alsowith retaining stolen property. The evidence against himconsisted in the main of accomplices of his who had beenconvicted of the theft of the goods in question. The accused didnot give evidence. Although the trial Judge warned the juryagainst the danger of convicting the accused on theuncorroborated testimony of accomplices he nevertheless
VVTTTTAT.TNflAM. J.—Gunasekera v. Attorney-General
indicated to them that the fact that the accused had chosen notto go into the witness box might be corroboration. In the Courtof Criminal Appeal Lord Goddard, C. J. said “ one cannot saybecause a man has not gon$ into the witness box to give evidencethat itself is corroboration of the accomplice’s evidence. Itis a matter which the jury could very properly take into accountand very properly would, but it is not a right direction to givea jury and it should be clearly understood that that direction iswrong in law ”.
Nor can the fact that the accused does not give evidence beused to bolster up a weak prosecution case. Any such use wouldmake the presumption of innocence meaningless and makenonsense of the proposition that the burden is always on theprosecution to prove its case beyond reasonable doubt. In thecase of Regina v. Sparrow, (1973) 2 All E. R. 129, Lawton, L. J.pointed out at page 135 that “ In our Judgment Wangh v. R.(1950) A. C. 203, establishes nothing more than this : it is awrongful exercise of, judicial discretion for a judge to bolsterup a weak prosecution case by making comments about theaccused’s failure to give evidence, and implicit on the report isthe concept that failure to give evidence has no evidentialvalue ”.
If the prosecution evidence is weak, that is the end of thematter, the case against the accused must fail. As Tennekoon,C. J. pointed out in Gunawardena v. Republic of Sri Lanka(supra) “ for when there is no evidence compatible with the guiltof the accused it is a situation of there being no case whateveragainst the accused and not a question of there being areasonable doubt.” There is in such a situation nothing whichcalls for an answer from the accused. It is only where theprosecution has made out a strong prima facie case that theaccused will be called upon to explain any matter or matterswhich may call for an explanation from him.
In this connection the observations of the Privy Council inTumahole Bereng et al, (1949) A.C. 253 at 270, are very apposite.Their Lordships said “ It is, of course, correct to say that thesecircumstances—the failure to give evidence or the giving offalse evidence—may bear against an accused and assist in hisconviction if there is other material sufficient to sustain a verdictagainst him. But if the other material is insufficient either in itsquality or extent they cannot be used as make weight. To holdotherwise would be to undermine the presumption of innocencein a manner as repugnant to the proclamation of 1938 as to thecommon law of England ”. It would be equally repugnant to thelaw of Sri Lanka.
VYTHI ALINGAM, J.—Gunasekera v. Attorney-General
All these cases deal with trials in High Courts and thecomments which the trial judge may properly make in his chargeto the jury on the accused’s failure to give evidence. But theyset out the circumstances in which an$ the nature of the properinferences which a trial judge himself may make in trials inother courts as well. It is so much a matter of the judge’s discre-tion and depends entirely on the facts and circumstances of eachcase and it is not possible to lay down any hard and fast ruleto meet all cases as to what inferences would be proper andthe circumstances in which they can be drawn.
The proposition was thus put by Abbot, J. in Rex v. Boordett,<1820) 4 B & Aid : 95 at 120, “ No person is to be required towarrant a reasonable and just conclusion against him, in theabsence of explanation or contradiction ; but when such proofhas been given, and the nature of the case is such as to admit ofexplanation or. contradiction can human reason do otherwise thanadopt the conclusion to which proof lends ”. Sometimes theexplanation may be evident in the prosecution case itself. Sucha case was the case of Siriwardena v. Republic (S. C. Appeal1Vo. 6—7/75—D. C. Colombo 245/B.—S. C. Minutes of 20.12.76.).
Siriwardena who was a surgeon attached to the GeneralHospital, Colombo, was convicted under the Bribery Act forhaving accepted a gratification of Rs. 30 from one Chandradasafor treating him. He did not give evidence and the trial Judgecommented adversely on the fact that he did not give anexplanation as to why he gave Chandradasa preferentialtreatment by taking him out of turn for an operation. But ittranspired from the prosecution evidence itself that the normalprocedure could be varied at the discretion of the surgeon forthe benefit of medicoes and hospital employees and that medicalstudents and hospital employees were given certain privileges.In the circumstances this Court held that the District Judge hadmisdirected himself in taking account adversely to the firstaccused of the fact that the first accused did not explain hisconduct in not following ordinary routine when he arranged forChandradasa to be operated on the 20th when the evidencebefore him was that Chandradasa was introduced and broughtalong by a hospital employee.
It was of course open to the trial Judge to have convicted onthe uncorroborated testimony of the complainant provided hefound it to be cogent and convincing. Section 79 (1) of the BriberyAct enables him to do so. But as Lord Hodson pointed out in thePrivy Council the quality of the prosecution witnesses shouldbe properly estimated by the trial Judge for “ there is nothingin the Bribery Act section 79(1) which of itself enhances theircredibility ”—Moses v. The Queen, 75 N.L.R. 121 at 126. The
VYTHIALINGAM, J-—Gunasekerav. Attorney-General
trial Judge does say in his judgment that the evidence of thecomplainant “ was unshaken in cross-examination on materialparticulars” and that he accepted his evidence as being true.But there has been no critical examination or careful analysisof the evidence. Nor has he considered the inherent improbabili-ties of the prosecution case.
In the course of his judgment, however, the trial Judge pointsout that “ Admittedly there are several unsatisfactory featuresin the evidence of the prosecution witnesses ”. He has also statedthat the counsel for the defence referred to various contradictionsbut he did not deem it necessary to consider all of them but onlyreferred to two of them to demonstrate that those contradictionswere not material to the issues to be tried by the Court whichwere whether the accused solicited and accepted the gratificationfor the doing of an official act.
This was obviously due to a misconception on the part ofthe trial Judge in regard to the purpose and scope of cross-examination. There is a clear distinction between cross-examination to the issue and cross-examination to credit. Inthe case of the former the cross-examiner will seek to obtainadmissions favourable to his case in regard to matters in issue ;in the latter case he will seek to discredit the witness by show-ing that he is one who is unworthy of credit and that hisevidence in regard to matters in issue ought not to be believed.Both are equally important in extracting truth and exposingfalsehood. One cannot dismiss contradictions in regard tocollateral matters in the way in which the trial Judge has donein this case. Had he not done so he might have formed adifferent opinion in regard to the complainant’s evidence.
The witnesses particularly in a “ trap case ” come with aprepared story and with the specific purpose of saying that theaccused solicited the illegal gratification and that he acceptedit. Even the most skilful cross-examination will find it wellnigh impossible to obtain contradictions on “ matters materialto the issue to be tried by the Court ”. Very often in cases ofthis type there is collaboration and in this case too there isevidence of such collaboration. Stanley said that when Preraa-ratne revealed his identity and asked the accused to hand overthe money “ the accused got up from his seat in an excitedmanner and handed over the money to Inspector Premaratne ”.The complainant also said that “ the accused in an excitedmanner took out the money from his pocket and gave it toInspector Premaratne ”. Both bits of evidence were given inexamination-in-chief. While such observations may be expected
VVTTTT AT.TWOAM, J.—Gunaaekera v. Attorney-General
from a trained police officer who had taken part in many suchraids it is surprising that a person like the complainant shouldhave used the identical words to describe the situation.
Both Stanley and the complainant stated that the accused toldthem that it was not good to take the money even in thepresence of the complainant’s brother. Could he then havesolicited the gratification in the presence of the father, motherand the brother ? This matter did not receive the attention ofthe trial Judge at all. There were several contradictionsbetween the complainant and other witnesses. In examination-in-chief the complainant said that he was not aware that hisbirth had not been registered whereas in cross-examination headmitted that as a result of an application made in 1976 hebecame aware that the birth was not registered. Then therewas contradiction in regard to whether Stanley told him whereand why he was being taken from his office, as to the doorthrough which Premaratne entered, as to whether Premaratnesearched the files or not and as to whether his statement wasrecorded or not after the raid. The cumulative effect of a1these contradictions and the improbabilities were not conside*by the trial Judge at all.
The trial Judge also stated that there was no reason *complainant to falsely implicate the accused. Thra®onsuggested by the defence was summarily dismissed byie . Uas not bearing scrutiny because the complainant d *ed ^ andhe accepted him as a truthful witness. There as ^oweverevidence in the prosecution case which showed t*ie suSSes"tion was a distinct possibility. The reason si^estec^ wasthe complainant was angry with the accused43 ^a^ re^use<^to issue to him a copy of the birth certifies'-complement
admitted that the accused said so. There /as^rom April
to July during which the accused had wa^e<^ severa^ documentsat various stages. He had asked for “^e school leaving certi-ficate, householders’ lists, marriage -ertificate of the parents,copies of the birth certificates of hi elder and younger brothersand even the horoscopes of the members of the complainant’sfamily. It is certainly not bey*nd the realms of possibilitythat the complainant might ha^e got exasperated and as the say-ing goes in our country wanted “ to teach the accused a
In these circumstances I am of the view that the trial Judgeshould not have acted on the uncorroborated testimony of thecomplainant. Particularly is this so when there was suchevidence available to the prosecution and they chose to withholdit.
VYTKIALINCIAM, J.—'Junaaekera a. Attorney-General
” tb£L'L a as Ganeshan v. The State (S.C. Appeal No. 1/75 ;
.C. Jaffna s c Minutes of 3.8.1976) the trial Judge hadheld that the mpja^nan^ though an unsatisfactory witness wascorroborated by,-^ poliC3 officers in regard to the acceptanceof the gratificatic jn se+tmg aside the conviction this courtpointed out that oi ^-g charge the prosecution has to provebeyond reasonable tkat (a) the accused accepted a gratifi-cation of Rs. 1,000 and ^ that it was accepted as an inducementor reward for procurii* or securing for the complainantemployment in the Depar'u^ ^ Qf Posts and Telecommunicaions.
After examining the evidei*6( Wimalaratne, J. pointed out“ What is significant is that on i^ne of these four occasions hadArasu either heard the complainant telling the accused thepurpose for which the money was being offered or the accuseddemanding the money for the particular purpose specified in theindictment. If Arasu was aware of the purpose for which themoney was being given, then Arasu became so aware not as aresult of what he himself heard on an> of the four occasionsreferred to earlier, but on some other occasion when the com-plainant would have mentioned it to him, or to some other
The conviction of the accused on count 1 of soliciting anillegal gratification cannot be sustained and the accused isentitled to an acquittal on that count.
In regard to the charge of acceptance of the illicit gratificationthe evidence of the complainant is supported by that of Stanley.The complainant said the accused asked him whether he hadbrought the money and on him saying that he had the accusedsaid ** Ko denna ” and took the money and put it in histrouser pocket. Stanley’s evidence was that the accused askedthe complainant “ salli genav/ada ” and when the complainantsaid that he had brought Rs. 100, the accused asked for themoney saying “ Ko denna " and took the money and put it intohis trouser pocket. Both of them spoke of no other conversa-tions or of any other words being spoken about the money.There is therefore no evidence at all in regard to the purposefor which the money was given, apart from the uncorroboratedvidence of the complainant that the accused had on an earlier1 asion asked for the Rs. 100 in order to issue a copy of thebil certificate. Stanley’s evidence therefore cannot corroba-
rate ° complainant in regard to the purpose for which themoney
VYTHTAX.INGAir, «TGunasekera v. Attorney-General
officer of the Bribery Department. But in view .of the learnedJudge’s finding that the complainant was undoubtedly anunreliable witness, such knowledge gathered by Arasu from thecomplainant would not be of any evidentiary value Theposition is identical in the instant case.
Since I have acquitted the accused on the charge of solicitingas the complainant was an unreliable witness the accused isentitled to be acquitted on the charge of acceptance also as thesole evidence in regard to the purpose for which the money wasgiven was that of the complainant alone. For as Tennekoon,C.J. pointed out in the case of Raphael v. The State,78 N.LTl. 29, where an accused is tried on two connected butdifferent charges in the same proceedings a conviction on count1 cannot be based on evidence which has by implication, beenrejected by an order of acquittal on the other count ”.
In respect of this count, from the failure of the accused togive evidence, the trial Judge has drawn the inference that ifthe accused had given evidence it would have been unfavourablefor his defence. His defence was a complete denial of thecharges and the inference that the evidence would have beenunfavourable to that denial can only mean that it was anadmission of his guilt. As I have pointed out this is not a properinference to be drawn from the accused’s silence.
Besides this is a presumption v/hich section 114 (f) of theEvidence Ordinance enables a court to draw against a party whowithholds evidence which is available. This presumption hasno application to an accused in a criminal case when he exerciseshis statutory right to remain silent. It is for the prosecutionto prove its case beyond reasonable doubt. In the case ofChandradasa v. The Queen, 72 N.L.R. 160, the Court ofCriminal Appeal had occasion to consider the applicability ofthis presumption in criminal cases, but did not decide it. ButSamerawickreme, J. who delivered the judgment of the Courtsaid, “ It is a presumption of fact. One would have thoughtthat such a presumption would not arise in a criminal casebecause of the fundamental rule that an accused is free to electwhether he will or will not call evidence. It has been heldthat the presumption in section 114 (f) is not one which may bedrawn against as accused person because he is free to elect
VYTHIAXJNGAM, J.—Qunaeekera v. Attorney-General
whether he will or will not call evidence, and an inferencecannot drawn against him by reason of his electing to take theone course rather than the other—vide Harry ChumChuckerbutty v. The Express—10 Calcutta 140
“ The inference ” he continued, “ that evidence which anaccused might have called but has withheld was unfavourableto him is so incompatible with the fundamental rule that anaccused is free to elect whether he will or will not call evidencethat it may be necessary to consider in an appropriate casewhether it is an inference which should in any case be drawnBesides the failure to give evidence may well be due to reasonsother than that such evidence would be unfavourable to hisdefence. In a significant number of cases it may well be attribu-table to no more than an understandable reluctance to submitto cross-examination by a skilled advocate in wholly unfamiliarsurroundings and sometimes in a hostile atmosphere.
For these reasons I would set aside the conviction and sentenceof the accused and acquit him on both counts. If the fine orany portion of it has been paid by the accused it should berefunded to him.
Malcolm Perera, J.—I agree.
Ratwatte, J.—I agree.
K. D. M. GUNASEKERA, Accused-Appellant and THE ATTORNEY-GENERAL, Respondent