K. L. PERERA and THREE OTHERS, Accused- Appellants and THE REPUBLIC OF SRI

035-NLR-NLR-V-79-2-K.-L.-PERERA-and-THREE-OTHERS-Accused-Appellants-and-THE-REPUBLIC-OF-SRI-.pdf


244
l*tieru r. hte public of Sri La oka
1978 Present : l'athiia.m. J., Weeraratue, J. and Colin Thome, J.
X. L. PER ERA and THREE OTHERS, Accused-Appellants
and
THE REPUBLIC OF SRI LANKAS. C- 113-116/76—H. C. Batticaloa 1/75—M. C. Kalmunai 48993
Criminal Lair.—Trial before Jury—Chat gas of unlawful assembly andattempted murder—Gunshot injuries—Report of GovernmentAnalyst produced in evidence though Analyst not called as witness—Question of interpretation of such report—Whether permissiblefor Jury to interpret opinion of expert witness as found in suchreport—Misdirection—Need to call expert where clarificationneeded.
Where certain accused were charged in the High Court withbeing members of an unlawful assembly the common object ofwhich -was to cause hurt to certain persons and with having- com-mitted the offence of attempted murder while being members ofthe said unlawful assembly, the report of the Government Analystregarding what was described as a “ fragment of a pellet ” wasproduced in evidence. He was not called as a witness. The trialJudge invited the Jury to interpret a certain expression of opinionin the report and indicated how they might approach this. It wassubmitted on behalf of the defence that there was a misdirectionin this respect in the summing up of the learned Judge.
Held : That where there is any matter that needs clarificationin the oninion of an expert witness, in this case the GovernmentAnalyst, on a highly technical science like ballistics, the propercourse would have been to have called the expert as a witness and
T*ATHl.ltANA, J.—Perera v. lUpublia of Sri Lanka
24D
asked him to clarify any matters that were in doubt or neededclarification. It was a misdirection to have told a lay jury whereonly l'.’ report of the Government Analyst was before them thatit was tor them to interpret the opinion of the expert and it wasalso a misdirection to tell the Jury how they should interpret anexpert s opinion as was done in this case.
Convictions of the accused-appellants for attempted murderquashed?
Per Fathirana, J. :—“ it is very desirable that in the interests
of a fair trial the Director of Public Prosecutions should follow theinvariable p actice of summoning the Government Analyst, whois the ballistics expert in this country to give evidence if he hassubmitted a report. The difficulties in this case of attempting to“ interpret ” the opinion of the Government Analyst would havebeen obviated if the Director of Public Prosecutions had oniy takenthe sensible step of calling the Analyst as a witness for the prose-
B cuticn. We hope that this invariable practice will not be departedfrom in future in cases specially before a lay jury at the trial ofoffence;; involving the use of firearms. ”
^^PPEAL from convictions in the High Court, Batticaloa,
L. de Silva, with M. Deen, for the 1st, 4th and 5th accused-appellants.
H. R. Herath (assigned), for the 2nd accused-appellant.
L. M. de Silva, State Counsel, for the Attorney-General.
Cur. adv. vult.
April 12, 1978. Pathirana, J.
The 1st, 2nd, 4th and 5th accused-appellants were by theunanimous verdict of the Jury found guilty of having on or aboutthe 23rd of December, 1970, at Kotavehera ;
(а)On count 1, with others unknown to the prosecution beingmembers of an unlawful assembly the common object of whichwas to cause hurt to Satyasena Dias and his son Shanthi Dias, an.offence punishable under section 140 of the Penal Code.
(б)On count 2, whilst being members of the said unlawfulassembly committed the offences of attempted murder of Satya-sana Dias by shooting him with a gun, an offence punishableunder section 300 read with section 146 of the Penal Code-
(c) On count 3, whilst being members of the said unlawfulassembly committed the offence of attempted murder of ShanthiDias by shooting him with a gun, an offence punishable undersection 300 read with section 146 of the Penal Code.
The 3rd, 6th, 7th, 8th, 9th and 10th accused were found notguilty. On count 1 each of the appellants was sentenced to sixmonths’ rigorous imprisonment. On each of the counts of attempt-ed murder whilst being members of the unlawful assembly eachwas given 9 years’ rigorous imprisonment and a fine of Rs. 100.
According to the prosecution on 23. 12. 70 Satyasena Dias andhis son Shanthi Dias were on the loft of a hut which was 7 feet
A 51082 <80/10)
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FATHIKANA, J.—Per era. v. Republic of Sri Lanka
above the ground when at about 4 p. m. about 14 people, amongwhom were the ten accused in the case, came to a boutique about100 to 150 yards from their hut. They were abusing in noisylanguage. The 2nd accused abused Satyasena and told him “ I willshoot you today and I will set fire to your hut These personsthereafter came to his field up to about 15 to 20 yards andstopped. The 2nd accused called Satyasena out. All the accusedhad weapons in their hands. The 1st accused was armed with agun and the others were armed with clubs and with torcheswrapped with cloth. The 1st accused then fired a shot at them.Slianthi Dias who was standing close to a window received a shoton his finger while the other pellets struck the roof of the hut.The 1st accused fired from a distance of about 54 feet. The 1staccused then fired the gun at Satyasena Dias. The shots struckhis right hand and right leg. Then some of the accused set fire, tothe roof with lighted torches. Thereafter both were assaulted bythe accused with hand and clubs. Satyasena Dias had admittedin his evidence that in 1967 he had forcibly evicted a Muslimman and had taken possession of this paddy field of which he wasin possession at that time of the incident.
At the conclusion of the argument we affirmed the verdictof the Jury on count 1. We set aside the convictions and sentencesof the appellants on count 2 and 3 of having committed attempt-ed murder of Satyasena Dias and Shanthi Dias whilst beingmembers of the unlawful assembly but substituted therefor averdict of causing simple hurt to the two persons mentionedwhilst being members of the said unlawful assembly. Wesentenced each of, the appellants to one year’s rigorous imprison-ment and a fine of Rs. 100 on each count.a
The medical evidence of the two doctors who had examinedthe injured persons did not affirmatively support the prosecutioncase that the injuries the two injured persons received whichformed the basis of the charges involving the offences ofattempted murder, were gun shot injuries. According to themedical evidence, at mojit, these injuries were equally consistentwith having been caused by gun shot or by a pointed weaponor “ other means ”. One of the doctors who examined SatyasenaDias had recovered. from an injury on his upper arm what hedescribed as a “ fragment of a pellet (PI) ” which had been sentto the Government Analyst for examination and report alongwith the evidence of the two doctors who had examined theinjured persons.
The Government Analyst had expressed the following opinionin his report P3 : —
“ PI is hot a fragment of a pellet and it would not there-fore have been discharged normally from a cartridge. ”
PATHIRANA, J.—Perera v. Republic of Sri Lanka
247
The learned trial Judge having referred to the inconclusivenature of the medical evidence on the question whether theinjuries which the prosecution alleged to be gun shot injuries,adverted to the report of the Government Analyst, who had, how-ever, not given evidence in the case. His report marked P3 wasproduced in evidence on the application made at the trial by thedefence Counsel.
I shall quote the following passage from the trial Judge’ssumming-up, in xegard to the opinion expressed in the report bythe Analyst, to which exception was taken by learned Counselfor the defence as amounting to a misdirection to the Jury.
“ The Analyst’s report is to this effect that the fragmentor piece of substance that was taken out of injury No. 1 onthe upper arm was not from a pellet that could have beennormally discharged from a cartridge. The Analyst has usedthe word “ normally ”. If he had said that it could not havebeen fired from any cartridge and that would probablycontradict the Doctor's evidence that injury No. 1 wherethis fragment was embedded could have been caused by gunshot. But "as I saidrthe Analyst is guarded in his opinionbecause he says the fragment could not normally have beendischarged from a cartridge. It is for you to interpret thatexpression in the Analyst’s report. Does that mean the sortof cartridge that you normally come across ? Does he meanby that, the normal factory loaded cartridge as distinctfrom home made cartridges. You probably may, in thecourse of your experience, have come across cartridgesmade locally by the villagers in their homes. I supposein times when factory loaded cartridges are difficultto come by when they are scarce and when villagers needcartridges to scare away elephants, you will probably comeacross villagers making cartridges on their own by fillingspent factory cartridges. What they use is not the factorymade lead balls, the round spherical lead balls, but they fillthe spent cartridges with lead foils, bits of nails, stones and soon. You heard Dr. Saraweswaran who was a lecturer inForensic Medicine, say in his evidence that he has comeacross these home made cartridges and that they are filledwith lead foils, bits of nails, stones and so on. In the light ofthat evidence, consider whether the fragment that was re-moved from the arm of Sathiyasena Dias could not have beena fragment from a home made cartridge. Ask yourselves,Gentlemen, the question whether that is why the Govern-ment Analyst says that it is not factory made pellets andconsider also whether that is why the Analyst says that thefragment that ivas sent to him for examination was not afragment that was normally discharged from a cartridge.
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PATHIKA2TA, J.—Pcrera v. Republic of Sri Lanka
Did he mean by that the fragment was not a fragment from-a factory loaded cartridge but from some home made-cartridge ?#
Look at it from that point of view, Gentlemen, considerwhether it was for that reason that Doctor Saraweswaransaid injuries Nos. 1 and 3 did not have the specificpattern characteristics of firearm injuries were not factorymade pellets ? These are matters, Gentlemen, you mustconsider ”
Learned Counsel’s reasons for his submission that this passageamounted to a misdirection to the Jury can in our view beformulated as follows :
Firstly, that it was wrong for the trial Judge to have directeda lay Jury to interpret the opinion of an expert, in this case theopinion of the Government Analyst, as a ballistics expert, inorder to elucidate or clarify matters arising out of that opinion.The proper course was for the trial Judge to have called him as a.witness to clarify and elucidate any question that may arise inthe opinion expressed by the expert.
Secondly, that the trial Judge’s directions can be justified onlyon the basis that the Analyst had affirmatively and unequivocallystated in his opinion that (a) PI was in fact a fragment of apellet and (b) that it was not a fragment of a pellet from afactory loaded cartridge but from a home made cartridge whenthe Analyst had not so stated in his opinion.
It was submitted that as a result of the directions by the trialJudge, the Jury would have been justified in thinking that it.was legitimate for them to conclude firstly, that the opinion, ofthe Analyst was consistent with and supported that part of themedical testimony.in regard to the injuries, which the prosecu-tion relied on as gun shot injuries, that they could have beencaused by gun shot. Secondly, that the opinion of the Analystwas consistent with and supported the evidence of the injuredpersons that the injuries in question, which the prosecution reliedupon as gun shot injuries, were injuries received by them as aresult of gun shots fired by a gun by the 1st accused.
It was, however, submitted by Counsel for the appellantsthat the Analyst’s opinion was clear and unambiguous that whatwas described as “ a fragment of a pellet ” was not a pellet whichcould have been ordinarily discharged from a cartridge. Theresult of the misdirection by the trial Judge was that the Jurywere deprived of the opportunity of testing the credibility ofthe two injured persons in regard to their evidence on thecharges involving the offences of attempted murder, whether infact they received such gqn. shot injuries, by evidence inconsistentwith their testimony.
VATilf 11AN.A, J.—Perera v. lltpublic oj Xri Lanka
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I shall now refer to the injuries, deposed to by the two Doctors,which the prosecution alleged were as a result of a gun ^not.
Dr. Rajendra, who said that he was not an expert on ballistics,had examined Satyasena Dias. He has referred to 10 injurieshe found on him. The injuries which the prosecution relied onas gun shot 'injuries are injuries 1, 2’ and 4, viz.:
“ 1. Contusion 1£ inches long and 1 inch across, lateral
aspect of right forearm, one inch above the elbow.
Contusion one inch by one inch on back of the right
thigh one inch above the knee running across.
Contusion 2 inches long and one inch wide on the lateral
aspect of right foot. ”
He said that he could not say with absolute confidence whetherinjury No. 1 could have been caused by a gun shot. In fact hehad put a question mark regarding injury No. 1. He said thatinjuries 1, 3 and 4 could have been caused by gun shots. He alsoexpressed the view that injuries 1, 3 and 4 could have beencaused even by a pointed object. Later he said that injuries 1,2 and 3 could have been caused by other means also. SatyasenaDias was also examined by Dr. Saraweswaram. He referred tothe three injuries the prosecution relied upon as gun shotinjuries, viz.:
Lacerated .wound h inch long on the outer aspect ofi
right upper arm 3 inches above the elbow.
Circular lacerated wound J inch in diameter on the back
of right forearm 2 inches below the right elbow.
Around it was contusion collar.
Lacerated wound li inches long on the front of right leg
2 inches below the right knee with underlying
fracture.”
He too said that injuries 1, 2 and 3 could have been causedby gun Pilots but in cross-exmaination he said that they did nothave the typical characteristics of firearms injuries. No. 2 couldhave been caused by other means. No. 1 could have been causedby an iron rod with a pointed end. He also said that it was notpossible for him to say whether these injuries were caused by ahome made cartridge or a factory manufactured cartridge.
This doctor recovered what he described as “ a fragment ofa pellet” from injury No. 1 from the right upper arm ofSatyasena Dias. He was questioned in regard to the opinionexpressed by the Government Analyst in his report P3. I shallset out the answers given by this witness. I might state that atthe time he gave evidence this witness was a Lecturer inForensic Medicine at the Medical College.
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PATHIRANA, J.—Pcrerav. Republic oj Sri Lanka
“ Q. Now that the Government Analyst’s report is going tobe produced in evidence, do you know whether theAnalyst had said that the fragment was not a frag-ment of a pellet and that it could not have beendischarged normally from a cartridge ?
A. I don’t know whether he refers to a home made cartridgeor a factory loaded cartridge.
Q. Do you agree with the statement of the Analyst that PIis not a fragment of a pellet ?
A■ Yes, if he states so.
Q. The Analyst has also said that it could not thereforehave been discharged normally from a cartridge ?
A. Therefore, it would imply that it was a factory loadedcartridge. ”
Dr. Rajendra had also examined Satyasena Dias. He referredto the injury that the prosecution relied on as a gun shot injury,i.e. injury No. 2 which was described as follows :e
“Lacerated wound l/5th of an inch in diameter on the
medial aspect of the right index finger distal end and there
was an injury l/5th of an inch in diameter. ”
He expressed the view that it could have been caused by a gunshot.
I might mention that both doctors found other injuries onthe two injured persons which were consistent with injuriesfrom blows with hands and clubs.
We agree with the submission made by learned Counsel forthe defence that if there was any matter that needed clarificationin the opinion of the expert, in this case the Government Analyst,on a highly technical science like ballistics, the proper coursewould have been to have called the expert as a witness andasked him to clarify any matters that were in doubt or neededclarification. Without adopting that course it was a misdirectionto have told a lay Jury that it was for them to interpret theopinion of the expert and it was also a misdirection to tell theJury how they should interpret an expert’s opinion as was donein this case.
We also agree with the submission made by learned Counselthat the trial Judge was wrong in directing the Jury on thebasis—
(1) that according to the Government Analyst the pellet PIwas in fact a fragment of a pellet and,
PATH I KAN A, J.—Perera. v. Republic of Sri Lanka
251
(2) that it could have been discharged from a home madecartridge.
A study of the opinion expressed by the Analyst makes itclear without ambiguity that what he meant was :
“ (1) PI is not a fragment of a pellet.
(2) Being not a fragment of a pellet it could not, therefore,have been discharged normally from a cartridge.” .
It was also wrong to attribute to the Government Analyst theopinion that when he said in his report it could not thereforehave been discharged “ normally from a cartridge ” he used theexpression “ normally from a cartridge ” to mean not a factoryloaded cartridge but a home made cartridge. If the Analyst wasof opinion that it was a pellet and a pellet from a home madecartridge we are sure that with his knowledge and experienceas a ballistics expert he would not have hesitated to have saidso in his report. It suprises us therefore how a lay Jury can becalled upon to interpret the word “cartridge” in the context ofthe Analyst’s report to mean not a factory loaded cartridge but ahome made cartridge. The verdict of the Jury that they foundthe appellants guilty on the counts involving attempted murdercould be on the hypothesis that they accepted the directions ofthe trial Judge that :
PI was in fact a fragment of a pellet, and
it was discharged from a home made cartridge.
The misdirections have, therefore, resulted in the Jury havingbeing led to the conclusion that the opinion of the Analyst hadtilted the inconclusive nature of the medical evidence in favourof the view that the injuries in question could have been causedby gun shot and secondly, that the opinion of the Analyst andthe medical evidence that the injuries in question could havebeen caused by gun shot therefore corroborated the oral testi-mony of Satyasena Dias and Shanthi Dias, the injured persons,that they received gun shot injuries from a gun fired by the 1staccused. The Jury were, therefore, deprived of the opportunity ofconsidering whether in fact (1) the opinion of the GovernmentAnalyst was inconsistent with the medical evidence that theinjuries in question were gun shot injuries and (2) o!f. testingthe credibility of the two injured persons when they said thatthey received gun shot injuries from a gun fired by the 1staccused if in fact the Analyst stated that PI was not a fragmentof A pellet. In the light of the inconclusive medical testimonyon the question whether the injuries in question were in factgun shot injuries, the misdirection has in our view causedserious prejudice to the appellants on the charges involving theoffence of attempted murder.
252PATH1RA2T A, J.—-Perera. v. Republic o] Sri Lanka
. In view of these misdirections we gave serious considerationwhether we should order a re-trial of the appellants. We desis-ted from adopting such a course in view of the fact that theoffences were committed on the 23rd of December, 1970, and thetrial in the case took place in March, 1975. It would be too muchto expect to rely on the memory of witnesses after a lapse ofeight long years.
We have examined, however, the evidence in the case and weare satisfied that no cogent reasons have been given as to whywe should upset the verdict of the Jury on count 1 that theaccused were members of an unlawful assembly the commonobject of which was to cause .hurt to the two persons. We arealso satisfied that the two injured persons received -injurieswhich would come under the category of simple hurt at thehands of the members of the said unlawful assembly. The medi-cal evidence regarding these injuries stands unassailed. Theinjured persons had received these injuries by hands and clubsinflicted by the members of the unlawful assembly.
We would, therefore, think that the proper course would benot to send the case for re-trial. As the Jury must have beensatisfied of the facts which proved that these appellants—
were members of the unlawful assembly, and
that as members of the unlawful assembly inflicted inju-ries on the injured persons which come under the category ofsimple hurt,
we affirmed the convictions and sentences on count
On count 2 we set aside the convictions and sentences andsubstituted therefor a verdict that the appellants were guiltyof having caused simple hurt whilst being members of the un-lawful assembly. We sentenced each of the accused to oneyear’s rigorous imprisonment and a fine of Rs. 100. We set asidethe convictions and sentences on count 3 and substituted there-for a verdict that the appellants were guilty of causing simplehurt whilst being members of the unlawful assembly. We sen-tenced each of the appellants to one year’s rigorous imprison-ment and .a fine of Rs. 100.
The prison sentences will run concurrently.
Before we conclude we wish to state that in the trial of offen-ces which involve the use of firearms, it is very desirable that inthe interests of a fair trial the Director of Public Prosecutionsshould follow the invariable practice of summoning the Govern-ment Analyst, who is the ballistics expert in this country, togive evidence if he has submitted a report. The difficulties inthis case of attempting to “ interpret ” the opinion of the
Hadjiar v Marzook and Co. L.td
253
Government Analyst would have been obviated if the Director-of Public Prosecutions had only taken the sensible step of calling>the Analyst as a witness for the prosecution. We hope that thisinvariable practice will not be departed from in future in casesspecially before a lay Jury at the trial of offences involving theuse of firearms.
Weeraratne, J.—I agree.
Colin-ThomEj J.—I agree.
Convictions for attemptedmurder quashed.