026-SLLR-SLLR-2000-V-2-KEERITHI-BANDARA-v.-ATTORNEY-GENERAL.pdf
KEERTHI BANDARA
V.ATTORNEY GENERAL
COURT OF APPEAL.
JAYASURIYA, J.
DE SILVA. J.
CA NO. 157/96.
HC PANADURA 868/92.
MC HORANA 90666 NS.
03rd, 16th, 18th, 23rd, 24th JUNE. 1998.07™ SEPTEMBER, 1998.
30th JULY, 1999.
17th AUGUST, 1999.
Penal Code – Penal Code, S.364 – Rape – Issue of visual identification ■Fleeting glance or Jleeting encounter – Testimony of witness – EvidenceOrdinance S.6, S.9, S.91, S.92, S.155, S.157 – Best Evidence rule -Information Book – Criminal Procedure Code, S.ll 0(4), S. 122(3).
Held :
If the evidence voluntered by the prosecution witness is accepted astruthful, the identification is not an identification effected in a fleetingglance or a fleeting encounter.
Turnbull Rules' apply, wherever the case against the accuseddepends wholly or substantially on the correctness of one or moreidentifications of the accused which the defence alleges to be mistaken"
Where the accused asserts and alleges that it is not a mistake but a frameup (like in this case) no useful purpose would be served by consideringthe Tumbull’ guide lines.
The Best Evidence Rule would totally exclude the oral evidence of aPolice Officer in regard to the contents of a matter which is required bylaw and which in fact has been reduced to writing to be led afterrefreshing his mind from the document without the document beingmarked.
Quare :
'Do not the provisions of the Criminal Procedure Code expressly providethat the interpretation of a document is a question of law which fallswithin the exclusive province of the Judge.'
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It is for the Judge to peruse the Information Book in the exercise ofhis overall control of the said Book and to use it to aid the Court at theinquiry or trial.
There is nothing in S. 157 of the Evidence Ordinance which requiresthat before a corroborating witness deposes to the former statement, thewitness to be corroborated must also say in his testimony in Court thathe had made the former statement to the witness who is corroboratinghim.
Evidence given by the witness at the trial relating to his identificationof the accused at a parade is substantive evidence establishing identityin terms of Section 9 Evidence Ordinance. The proceedings of theidentification parade including the evidence given at the parade by thewitness would only be admissible to establish consistency on the part ofthe witness and thereby advance his credibility in terms of S. 157Evidence Ordinance.
APPEAL from the Judgment of the High Court of Panadura.
Cases referred to :
Regina vs Turnbull (1976) 3 All E.R. 549, Cr. Ap. Reports 132
Rex vs Oakwell (1978) 1 All ER 1223 at 1227
Regina vs Curtnel (1990) Cr. Law Review 115
K.B. Muttu Banda vs Queen 73 NLR 8 at page 11
Queen vs Raymond Fernando 66 NLR 1
Sheela Sinharage vs Attorney General [1985] 1 Sri.L.R. 1 at 17
King vs Cooray 28 NLR 83
Ramratnam us State of Rajasthan – AIR (1962) SC 424 at 426
ML Misni vs Emperor – AIR (1934)
Nazar Singh vs The State – AIR (1951) Pepsu 66
Queen vs Julis 65 NLR 505
Rex vs Christie 10 Cr. Appl. Reports 141 at 159
Matru vs State of Utar Pradesh (1971) SCC (Criminal) 391
Shindi vs State of Maharashra (1974) SCC (Crim) 382
State of Andra Pradesh vs K. V. Reddy (1976) SCC (Crim) 448
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Keerthi Bandara v. Attorney General (Jayasuriya, J.)
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C.P. Fernando vs Union Territory of Goa (1977) SCC (Crim) 154
Satya Narain vs State – AIR (1953) Allahabad 385 (1953) Cr. LawJournal 848
RanjitAbeysurvya P. C., with Priyadharshani Dias and M. Thalgodapitiyafor the Accused Appellant.
C.R. de Silva, P.C., Additional Solicitor General with SarathJayamanne,State Counsel and H.M.D. Nawaz, State Counsel for Attorney General.
Cur. adv. vult.
August 31, 1999.
NCV1AN JAYASURIYA, J.The accused appellant who was an Inspector of Policeattached to the Horana Police Station was indicted on fivecounts before the High Court of Panadura and at theconclusion of the trial the High Court Judge acquitted theaccused on counts one, four and five of the indictment andarrived at an adverse finding against the accused andcompeted him on counts two and three of the indictment.
On count two, the accused was charged with having atHorana on the 7th of April 1990, committed rape on WillegodaLiyanage Lalitha Ranjini and thereby committed an offencepunishable in terms of section 364 of the Penal code.
On count three, the accused was charged with having atthe same place and time and in the course of the sametransaction with having intentionally abetted personsunknown to the prosecution to commit the offence of rape onthe said Wilegoga Liyanage Lalitha Ranjini and that he therebycommitted an offence punishable in terms of Section 102 readwith Section 364 of the Penal Code.
The learned trial Judge on the 14th of August 1996 hassentenced the accused to a term of twelve years rigorousimprisonment on count two of the indictment and to a termof five years rigorous imprisonment on count three of theindictment.
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The following witnesses have given evidence for theprosecution and defence: The virtual complainant andprosecutrix Wilegoda Liyanage Lalitha Ranjani, the father ofthe prosecutrix Wilegoda Liyanage Robies Singho, the eldersister of the prosecutrix Wilegoda Liyanage Sunethra, themother of the prosecutrix Karadana Gamage Somawathie,M. M. Tudor Dias the Assistant Superintendent of Police,Horana, the. Chief Inspector, Herath MudiyanselageDharmasena, Sub-Inspector of Police Don EkmonWijesiriwardena who was attached to the Horana Policestation Police Sergeant V. de Silva Jayasinghe P. S. 9422,Court Mudliyar M. M. Wijeweera Peiris, Duggath MudiyanselageTillekeratne, Police Sergeant 24560 and the boarding masterof the accused appellant Danja Amarasena Walatara and theaccused appellant.
At the argument of this appeal learned President’sCounsel strenuously contended that the Learned High CourtJudge had culpably failed to consider and apply the guide lineslaid down in Regina vs Turnbull11' in regard to the issue of visualidentification testified to by the prosecution witnesses. Thelearned President Counsel argued that though the allegedidentification was not in a fleeting glance, that theidentification in the instant case was in difficult conditionsand circumstances and therefore the consideration andapplication of the guide lines spelt out in the Turnbull casewas of paramount importance. He referred to the guidelinesitalicized by him as B C and G and submitted that there is nofinding in the judgment of the trial judge as to how long thewitnesses did have the accused under observation and thatthe evidence led in regard to the recognition as opposed toidentification was suspect and that a longer observation by thewitnesses was necessitated in the instant case because theidentification was effected in difficult circumstances andconditions. I have spot-lighted the thrust of the contention oflearned President Counsel prior to referring to the basic factsvolunteered by the witnesses at the trial against the accused.
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Keerthi Bandara u. Attorney General (Jayasuriya. J.)
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The main prosecution witness who lived in the residentialhouse of Robies Singho had testified to the following effect:
“On the 7th April 1990 at about 3.20 a. m. in the earlyhours of the morning there was thumping on the front door ofRobies's residential house shouting out we are from the Police,open the door”
Robies Singho’s wife, witness Somawathie was awakenedby this knock at the door arid she had woken up her threedaughters who were sleeping in the same room as herself andshe had thereafter lit a Kerosene oil bottle lamp and had left iton a teapoy in the drawing room and had thereafter taken atorch into her hand and had opened the front door of herhouse, when three persons entered her house and inquiredabout her husband Robies Singho and when she replied thathe was not in the house one of such persons had stated thaton the previous occasion too you have Lied to us to us and todayalso you are uttering a palpable falsehood.
Thereafter the Police party had searched for Robies Singhoby proceeding to all parts of the house and one person in thisgroup was identified as a person who came previously to thishouse on the 30th of March 1990 dressed in uniform. On theinstant occasion he had a gun flung over his shoulder andit is alleged that this individual had grabbed her seconddaughter Ranjini – the prosecutrix – by her hand and by herfrock and had dragged her towards the kitchen. WitnessRanjini has stated thereafter that she was taken through thekitchen towards the building which housed the chimney andthat she was placed against the wall by the person whodragged her and that she had been subjected to sexualintercourse against her will, whilst she was positioned againstthe wall and while she was in a standing position. Thereafter,she has asserted that this person who had a moustache andwho on entry had a gun flung over his shoulder had aftersubjecting her to sexual intercourse, handed over her to theother members of the party, and two members of the party hadthereafter placed her on a concrete slab (szaazrf§0
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and two of them had proceeded to have sexual intercoursewith her against her will.
The mother of the prosecutrix Somawathie, and the eldersister of the prosecutrix, Sunethra, have stated that the entryof the Police into their house was on the 7th of April 1990 at3.20 a. m. in the morning and the Police party had spent about20 minutes in searching and looking for Robies Singho byproceeding to all parts of the house and they had spentsometime in smashing some glasses fixed to the window andopening certain cupboards and removing some articles andthat thereafter the accused had grabbed Ranjini and taken hertowards the kitchen.
Witness Sunethra stated that another member of thisPolice party had got hold of her, but she had shouted andstruggled and had been successful in releasing herself fromhis hold and thereafter both she and her mother had run intothe jungle in the premises and hid themselves in the thicket.Thereafter Somawathie and Sunethra had come out of theirhiding places on hearing the shouts of Ranjini after the Policeparty had left the premises at about 4.30 a. m. in the morning.
Witness Sunethra at page 95 of the record refers to theactions of the Police party in looking for her father RobiesSingho by proceeding to all parts of the house. There is alsoevidence in regard to the damaging of certain window glasseswith the aid of the gun and the removing of some articles fromcertain cupboards in the house.
Witness Sunethra at page 92 of the record also testified tothe search for her father and the examination of the rooms inthe compound. Witness Somawathie at pages 60,62 and 66 ofthe record states that after the Police party entered the houseat 3.20 a.m. in the morning that they were observing what washappening inside the house for about 20 minutes and there-after Ranjini was dragged away to the kitchen that they hadproceeded towards the jungle and hid in the thicket and that
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they stayed in the thicket for about 15 to 20 minutes tillhearing the exhortations of Ranjini inviting them to comeback; the evidence in the case is that the Police officers left thepremises at about 4.15- 4.30 a. m.
In these attendant circumstances the question ariseswhether the evidence volunteered by these witnesses refer toan identification in a fleeting glance or a fleeting encounter ornot. We hold that if the aforesaid evidence of the prosecutionwitnesses is accepted as truthful, the identification in theinstant case is not an identification effected in a fleetingglance or a fleeting encounter. In Rex us Oakwelll2> at 1227Lord Widgeiy, CJ in dealing with a similar contention that thedirections given in Rex us Tumbull(supra) were not applied tothe identification issue which is alleged to have arisen in thatcase, succinctly, observed:
“This is not the sort of identity problem which Rex vs* Turnbull is really intended to deal with. Rex vs Turnbull isprimarily intended to deal with the ghastly risk run incases of fleeting encounters. This certainly was not thatkind of case”.
We now proceed to consider whether the identificationin the instant case having regard to the testimony of theprosecution witnesses has been accomplished in difficultconditions and circumstances. Witnesses have testified to theeffect that the accused was recognized by them both in regardto what took place in Robies’s house on the 30th March 1990and on the 7th of April 1990. Their evidence is to the effect thatwhen the Police party came on the 30th of March 1990 theaccused was in uniform and therefore they concluded that thepersons who came on the 30* of March were Police officers,Though the accused wore civil clothing on the 7th of April theyhad identified him as one of the members of the party whopreviously visited their house on the 30th of March. Thewitnesses have given the physical features and a descriptionof the accused referring to his colour and the moustache whichhe carried. It is a strong point in the prosecution case that
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when Robies was sent for on the 7th of April 1990 and arrivedat his house, the witnesses have narrated to him what hadhappened in his absence and had specifically stated that theseacts have been committed by members of the Police forceattached to the Horana Police. The witnesses have reached thisconclusion according to their versions because on the 30th ofMarch this accused was dressed in Police official uniform andthey had recognized him on the 7th of April too as being amember of the party that had visited their house on the 30lh ofMarch. In view of the narration made by these prosecutionwitnesses, Robies Singho decided not to proceed to theHorana Police station but proceeded to meet the AssistantSuperintendent of Police, Horana to make a contemporaneouscomplaint against the officers attached to the Horana Police,This is a highly significant fact in tliis case and the learned trialJudge has specifically referred to this fact and concluded thatthe conduct of Robies Singho in proceeding to the AssistantSuperintenden t’s office in Horana instead of proceeding to theHorana Police station to make his complaint; substantiatedand advanced in strength the testimony of the prosecutionwitnesses to the effect that the accused came to their house onthe 30th of March 1990 dressed in official uniform and there-fore they were able to recognize him on the 7lh of April 1990 ashis being a member of the Police party that had visited thempreviously, (vide page 581- Judgment of the trial Judge)
If the testimony of the prosecution witnesses is true, isthis an identification effected under difficult conditions orcircumstances? In regard to the light and the opportunity foridentification, there is evidence that Somawathie had lit bottlelamp and left it on the teapoy in the drawing room and that shehad armed herself with a torch before opening the front door.She has stated that she identified the accused with the aid ofthe light which shed from the bottle lamp. There is someevidence given by a prosecution witness that there wasanother lamp burning in the bed room. Somawathie statesthat she identified the accused with the assistance of the lightemanating from the bottle lamp.
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Keerthi Bcmdarti v. Attorney General (Jayasuriya, J.)
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Mr. Tudor Dias the Assistant Superintendent of Policewho also investigated into the complaint has observed that hesaw a bottle lamp which had been upset on the teapoy and thatthe smell of Kerosene oil was emanating from the surroundingarea. This evidence substantiates the evidence of Somawathieand the other prosecution witnesses, in regard to the fact thatthe bottle lamp was burning and lit at the time of the incident.
According to the testimony of the witnesses, afterthe Police officer had entered the premises at 3.20 a. m. they,had observed their movements in the house for abouttwenty minutes. One witness has stated that the process ofexamination of the rooms itself took five to ten minutes on thepart of the Police officers.
Somawathie states in her evidence that she ran into thethicket and hid herself after twenty minutes subsequent tothe entry of the Police officers into her house. In thesecircumstances can one legitimately contend that theidentification was accomplished in difficult conditions andcircumstances? There was no gathering of a multitude ofpersons in the immediate vicinity soon after the Police officersentered the house. There were only three members of the Policewho entered the house and possibly the shadow of another wasseen standing outside the house near a window and the otherpersons present at scene were Somawathie and her threedaughters. Hence, the identification was not effected in themidst of a multitude of persons or in a crowd.
In this regard the evidence given by the accused is alsohighly pertinent and relevant. The accused’s position was thatthe charges have been fabricated and foisted on him onaccount of a certain motive which had been specificallyimputed by him. Thus the assertion of the accused inhis testimony is that these charges have been falsely andfraudulently fabricated and framed up against him. In view ofthe persistent assertion of the accused of a frame up and
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fabrication in regard to the charges levelled against him.the question arises in law whether the consideration andapplication of the Turnbull guide lines ever arises forconsideration in these attendant circumstances.
In Regina vs Curtnel131 the assertion of the accused in thatcase was that the identification involving himself wasfabricated, His position was not one of mistaken identity butthat the identification was fabricated and framed up by theprosecution witnesses. The accused was charged in that casewith the offence of robbery and wounding. In view of thedefence assertion that identification was fabricated the triedJudge purported to withdraw the issue of mistaken identityfrom the jury. A complaint on that score was urged at theargument of the appeal. The Court of Appeal observed that thiswithdrawal would have been a serious and possibly a fatalmisdirection if mistaken identity had been an issue at the trial.Nevertheless counsel argued a substantial issue arose in thecase on the accuracy of the identification and therefore thetrial Judge should have directed the jury in accordance withthe Turnbull guidelines, whether or not the identification wasasserted by the defence to be fabricated. The Court held thatthe contention seemed to beg the question in that instant casebecause there was no substantial issue as to the accuracy ofthe identification, the sole issue being the veracity of theevidence of identification given by the virtual complainant. Asthe accused did not allege that the virtual complaint wasmistaken in identifying, the Court of Appeal was of the viewthat a direction on Turnbull guide lines in those circum-stances would only have confused the jury and there was noevidence or an assertion of mistaken identity in that case forthe judge to leave the issue to the jury. This decision lays downthe principle that where the accused asserts and alleges is nota mistake but a frame up, no useful purpose would be servedby considering the Turnbull guide lines. In fact the Turnbullrules are expressly couched to apply in these circumstancesonly to wit:
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“Wherever the case against the accused depends whollyor substantially on the correctness of one or moreidentifications of the accused which the defence alleges tobe mistaken.”
In these circumstances the issue arises whether aconsideration and application of the Turnbull guide lines werenecessary and whether such an exercise was an incumbentduty on the trial Judge. Our view is that the application ofthe said guide lines was not warranted having regard tothe aforesaid attendant facts which have been alreadyenumerated in our judgment. But we will assume for purposesof argument that such a consideration was necessary. Thelearned trial Judge in his judgment has described at length thelight which emanated from the bottle lamp placed on theteapoy in the drawing room and has arrived at a finding thatthere was sufficient light for identification. There was ampleevidence recorded before him that after the entry of the Policeofficers into the house, there had been an examination of therooms by the Police officers, opening of cupboards and theprocess of breaking of the window panes by using the end ofthe gun. It was thereafter alleged, that the prosecutrix Ranjiniwas grabbed and taken through the kitchen into the rearcompound of the house. I have already referred to the timesand duration of time referred to by the witnesses. Thisevidence was prominently before the trial Judge. There wasnever a gathering or crowding of a multitude of persons, whichfact at times renders identification difficult. I have alreadyreferred to the paucity of the number of persons present insidethe house when the events spoken to by the witnesses arealleged to have taken place. In these circumstances theidentification accomplished in this case is certainly not anidentification in a fleeting encounter nor an identification indifficult circumstances.
The fact that Robies Singho proceeded on the 7th of April1990 and made a contemporaneous complaint to theAssistant Superintendent of Police, Horana – Mr. Tudor Dias,
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rather than at the Police station, Horana, was in consequenceof what his wife and children had narrated to him. This factmanifests that this is not identification for the first time, butan identification due to the process of recognition.
On the issue of recognition, a pertinent issue raised waswhether the accused had visited the house of Robies Singho onthe 30th of March 1990. Witnesses Somawathie, Sunethra andRanjini have testified to that issue in the affirmative. However,the trial Judge has not acted on the evidence of Ranjinibecause she had failed to identify the accused at theidentification parade held on 10. 04. 1990 and as she had notbeen convincing in her explanation for failing to identify thefirst accused at the said parade and in view of the proof ofD 1. Even if the evidence of Lalitha Ranjini – the prosecutrix isexcluded as unacceptable on this issue, there is the testimonyin Court of witness Somawathie and Sunethra on thisparticular point.
Learned President Counsel strenuously urged that therewere omissions proved in relation to the statements they hadmade at the Assistant Superintendent’s office at Horana.When the Assistant Superintendent of Police Mr. Tudor Diaswas asked under cross examination as to whether these twowitnesses had stated in their statements to the police that thefirst accused had come to this house on the 30th of March 1990.he has answered this question in the negative. The right toprove omissions emanated and was conceived after thedelivery of the judgment in K. B. Muttu – Banda vs Queenw atpage 11 pronounced by Justice Alles. His Lordship in thecourse of his judgment referred to the decision in Queen vsRaymond Fernando/51 where it was laid down that an omissionto mention in a police statement a relevant fact narrated by thewitnesses in evidence subsequently, does not fall within theambit of the expression “former statement” in Section 155 ofthe Evidence Act. Having stated thus. Justice Alles proceededto consider how such vital omissions could be brought to thenotice of the jury and that in terms of Section 122(3) of theCriminal Procedure Code the Court has overall control over
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statements recorded in the course of a police investigation andthe court has a right to utilize the statements to aid it at theinquiry or trial and that for the intervention of the Court in theinterests of justice and for the due administration of justice,the Court is entitled through its use of the information book tobring such vital omissions to the notice of the jury.
Thereafter Justice Alles proceeded to enumerate theprocedure by which such vital omissions could be proved in aCourt of law and remarked thus :
“If a police officer who recorded the statement of a witnessin the course of a police investigation was asked whetherthere was any mention in the statement of a material factand he answers in the negative after refreshing his memoryfrom the written record, we see no reason why the oralevidence so elicited should not be admissible without thenecessity of the record being proved and marked”.
We after due and respectful consideration, beg to dissentand record our total disagreement in regard to the procedureadvocated by Justice Alles. The best evidence rule which is afundamental tenet in the law of evidence would totally excludethe oral evidence of a police officer in regard to the contents ofa matter which is required by law and which in fact has beenreduced to writing, to be led after refreshing his mind from thedocument without the document being marked. Section 91 ofthe Evidence Ordinance would exclude such oral evidenceand none of the Exceptions to Section 92 of the EvidenceOrdinance are applicable to the situation under consideration.In the circumstances, we hold the procedure spelt out byJustice Alles is wholly irregular and illegal.
At this juncture I wish to place on record my experience inthe trial Court. Often when a police constable who has beencalled as a prosecution witness is under cross-examination heis suddenly thrust with the Information Book, asked to readit in a short space of time and thereafter in terms of the
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procedure advocated by Justice Alles. he is called upon tointerpret the document and express an opinion whether thereis omission on a particular point. This police constable at timeshas received an education only up to the eighth standard. Canhe be safely entrusted with the process of interpreting adocument? He is called upon to perform an arduous task attimes in determining whether such a statement appears eitherexpressly or by implication. Is he competent to do this oneroustask? When he purports to do so, does he not violate the bestevidence rule and violate the stringent provisions of Section 91of the Evidence Ordinance? Is it not a matter exclusively for thetrial Judge to interpret documents that arise for considerationupon a trial? Do not the provisions of the Criminal ProcedureCode expressly provide that the interpretation of a documentis a question of law which falls within the exclusive provinceof the Judge? We respectfully frown on and deprecate theprocedure advocated by Justice Alles.
We lay it down that it is for the Judge to peruse theInformation Book in the exercise of his overall control of thesaid book and to use it to aid the Court at the inquiry or trialWhen defence counsel spot lights a vital omission, the trialJudge ought to personally peruse the statement recorded inthe Information Book, interpret the contents of the statementin his mind and determine whether there is a vital omission ornot and thereafter inform the members of the jury whetherthere is a vital omission or not and his direction on the law inthis respect is binding on the members of the jury. Thus whenthe defence contends that there is a vital omission whichmilitates against the adoption of the credibility of the witness,it is the tried Judge who should peruse the Information Bookand decide on that issue. When the matter is again raisedbefore the Court of Appeal, the Court of Appeal Judges areequally entitled to read the contents of the statementsrecorded in the Information Book and determine whetherthere is a vital omission or not and both Courts oughtto exclude altogether the illegal and inadmissible opinionsexpressed orally by police officers (who are not experts but laywitnesses) in the witness box on this point.
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Learned President Counsel did not accord his approvedand acceptance of the aforesaid procedures spelt out by us atthe stage of argument. Learned President’s Counsel reliedstrongly on the judgment in Sheila Sinharage vs Attorney-General161 particularly at page 17. We hold that the decision inthat case has no application whatsoever to the issue whicharises in the instant case. In Sinharage’s case the learnedHigh Court Judge proceeded to peruse the evidence given atthe non-summary inquiry by Dr. Wass in regard to a statementmade by the deceased to him and the trial Judge wrongly.andillegally used the matter recorded at the non-summary inquiryas substantive evidence to arrive at his findings on the issue inthe case and for his adjudication, without taking any steps tohave such material placed before him as evidence. In thosecircumstances Justice Ranasinghe very correctly held thatthe procedure that was adopted was wholly illegal andunjustifiable in law. The process that we are advocating iscertainly not the use of the statements as substantiveevidence. The evidence of a witness is assailed as beingtestimonially untrustworthy on an account of an alleged vitalomission, the trial Judge or the Court of Appeal merely looksinto the statement, interprets that statement and thereafterdecides whether there is a vital omission as urged by counsel?in indulging in such a process, certainly both the trial Judgeand the Court of Appeal are not. using the contents ofthe statements as substantive evidence to determine theissues arising in the case. Both Courts are looking into thestatements only to ascertain whether there is a vital omission.According to the judgment pronounced by Justice Alles thevery origin of the right to prove omissions is traceable andreferable to the Judge’s use of the Information Book to aidthe Court at the trial. Therefore, there could be no validand sustainable legal objection to the trial Judge and theCourt of Appeal looking into the statements recorded inthe Information Book for such limited purpose and thedecision cited by a learned President’s Counsel is clearlydistinguishable for the reasons enumerated by us.
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Though Tudor Dias the Assistant Superintendent of Policehas stated his inadmissible opinion, on perusing thestatements, that there is an omission in the statements ofSomawathie and Sunethra on this point, the trial J udge wouldhave necessarily done what this Court has performed inclosely perusing the statement of Sunethra. Sunethra in herstatement has referred expressly to the admission made bythe accused and by narrating that admission she hasincorporated and adopted the contents of that admission. Thispart of her statement reads as follows :
Thus, the admission of the accused that when he camepreviously that they had liecl and today too they are lying – thisadmission as to his previous visit to this house which wasuttered by the accused, had been adopted by Sunethra in herpolice statement, – the doctrine of adoption by incorporation orreference. In these circumstances it cannot be justifiably andreasonably be asserted that there is a vital omission in regardto this point in her police statement and therefore her evidenceought to be deprived of testimonial trustworthiness andcredibility.
Learned President’s Counsel relied for his aforesaidcontention on the decision in Sheela Sinharage vs AttorneyGeneral(supra). Having regard to the fact that the right toprove omissions emanates and is directly traceable to therights conferred on a trial Judge over the use of the InformationBook to aid the Court to an inquiry or tried. {Vide Section 110(4)of the Code of Criminal Procedure Act and the principles laiddown by Justice Garvin in King vs Cooraym in regard to theexercise of such right by the Trial Judge in the interestsof justice), the resulting position of the acceptance of theaforesaid contention would be that while counsel practising atthe Bar have arrogated to themselves the right which wasconferred on the Court, the trial Judge and the Court of Appeal
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Judges would be prevented from looking at the InformationBook even for the limited purpose of ascertaing whether thereis in fact an omission on a vital point in the case. No one wouldgrudge pleaders arrogating to themselves the powersconferred on the trial Judges as there are officers of Courtassisting the Court to arrive at the truth and a correctadjudication in the interests of justice. But, would anycontention which has the necessary effect of thwarting theexercise of the Judge’s rights in the interests of justice and. precluding him from perusing statements recorded in theInformation Book for the limited purpose of determining andascertaining whether there is an omission on a vital point, beever adopted and accepted?
If the trial Judge has an undoubted right to do so, certainlythe Judges in the Court of Appeal hearing an appeal would alsohave the undoubted right to peruse such statements for suchlimited purpose in the interest of justice and in determiningwhether there is an omission on a vital point or not. The Judgeswould in this exercise only be concerned with the issue of thecredibility of the witness and they would not in that exercisebe using the contents of the statement as substantive evidenceto arrive at an adjudication on the main issues in the case.That is the significant distinction between the processindulged in by the High Court Judge in Sheela Sinharage’scase and the issue that arises upon this appeal relatingexclusively to the province of credibility.
Learned Additional Solicitor General has submitted thathe is relying on the evidence given by witnesses – Somawathieand Sunethra – at the identification parade held on the 10th ofApril 1990 before the Additional District Judge/Magistrate ofHorana to corrobate their testimony at the trial that the firstaccused has previously visited their house on the 30lh of March1990 and thereby advance their consistency and credibility.He contended that the evidence led in the identification paradewhich was produced and marked at the trial as Yl. witnessesSomawathie in particular and Sunethra have clarified details
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with regard to the date of the previous visit by the first accusedand have given description in regard to the first accused who.visited their home on the 30th of March 1990 and on the 7th ofApril 1990. Evidence elicited at the identification parade :
When learned President’s Counsel initially contended thatlearned Additional Solicitor General was not entitled in lawto use the aforesaid evidence to advance the credit of thewitnesses in regard to their testimony before the High Court,the learned Additional Solicitor General has very relevantlydrawn the attention of this Court to a judgment of the SupremeCourt of India in the decision in Rainratnam vs the State ofRajasthan(8) at 426 Justice Wanchoo delivering the SupremeCourt judgment observed “The argument is that thecorroboration that is envisaged by Section 157 of the EvidenceOrdinance is that of the statement of the witness in Court, thathe had told certain things to the person corroborating thewitness’s statement, and if the witness did not say in Court thathe had told certain things to that person, that person cannotstate that the witness had told him certain things immediatelyafter the incident and thus corroborates him." We are of theopinion, that this contention is incorrect Having regard to the
Sunethra in her statement to the police (ASP Tudor Dias)made on 06. 04. 90.
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provisions of Section 157, it is clear that there are only twothings which are essential for this Section to apply. First thatthe witness should have given testimony with respect to somefact. The second is that he should have made the statementearlier with respect to the same fact at or about the time whenthe fact took place or before any authority legally competent toinvestigate the fact. If these two things are present the formerstatement can be proved to corroborate the testimony of thewitness in Court. The former statement may be in wtiting ormay be made orally to some person. That person would becompetent to depose to the former statement and corroboratethe testimony of the witness in Court. There is nothing inSection 157 which requires that before a corroboratingwitness deposes to the former statement, the witness to becorroborated must also say in his testimony in Court thathe had made the former statement to the witness who iscorroborating him. But. in our opinion it is not necessary inview of the words of Section 157 that in order to makecorroborative evidence admissible, the witness to becorroborated must also say in his evidence that he had madesuch and such a statement to the witness who is to corroboratehim. It is not necessary that the witness corroborated shouldalso say in his evidence in Court that he made some statementto the witness who is to corroborate him. We are therefore ofthe opinion that the decisions in Mt Misri vs Emperor191 andNazar Singh vs The State1'01, were cases wrongly decided.
During the subsequent stages in his argument learnedPresident’s Counsel was compelled to admit that the correctlegal position has been laid down by Justice Wanchoo inRamaratnam’s case.
The evidence of Somawathie in particular and of Sunethrain their evidence at the identification parade have sufficientlydescribed, that the reference to the Sinhala expressions“qidadeo g®3sz>f and “eS^zsT were references to the visit made onthe 30th of March and they have sufficiently described in detailparticularising regard to the accused-appellant as the person
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who came both on the 30th of March and on the 7,hof April 1990. When all these matters are taken intoconsideration for the limited purpose of determining whetherthere is an omission on a vital issue, it is crystal clear that thereis no such omission in the statements made by these witnessesto the police and in the evidence given by these two witnessesat the identification parade. We also hold the testimony incourt of Somawathie and Sunethra is corroborated by theevidence given by them at the identification parade. In thesecircumstances, we are compelled to hold that there is no meritin the contentions urged on this score by learned President'sCounsel.
It must be observed that the evidence given by Sunethraat pages 191 to 192 of the record and the evidence given byRanjini at pages 95, 195 and 150 of the record in regard to theprocess of the search indulged in by the police party on thatday, by proceeding to all the rooms and looking for RobiesSingho, has not been challenged, impugned or assailed in anymanner by learned counsel who appeared for the accused atthe trial.
Dr. Jean Marita Perera, Assistant Judicial Medical Officerwho had examined the prosecutrix on 08.04. 90 at 2 p.m., hasstated convincingly and in clear terms that there had been arecent rupture of her hymen and that there was an injury inthe vaginal passage and having regard to the redness and theswelling in the surrounding areas she was able to say that itwas a recent rupture and that prior to that rupture Ranjini hadbeen a virgin. These injuries in the hymen and the vaginalpassage, according to the medical expert, could have beencaused by the insertion of some object into the vaginal passageand hence could have been caused by sexual intercourse andpenetration. The medical expert has described that there wereinjuries on Ranjini’s buttocks which, testimony substantiatesthe evidence of Ranjini when she stated that the subsequentacts of rape committed on her by other members of the policeparty were, after placing her on a concrete slab. The aforesaid
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evidence of the medical expert has not been impugned orassailed at all at the trial. The position of the defence beingthough Ranjini may have been raped, that the charges againstthe accused were a frame-up and a fabrication and that theaccused has no hand whatsoever in the acts of rape which werecommitted on Ranjini on the 7,h of April, 1990.
Learned President’s Counsel has complained in the courseof his argument before this Court that the learned trial Judgehas utilized the evidence given by witnesses Somawathie andSunethra at the identification parade held on the 10th of April1990 as substantive evidence and referred this Court to pages596 to 599. 600. 609 and 612 where and 612 where extractsof the judgment appear. He relied on the judgment in Queen vsJulisin particular, he relied on the judgment pronouncedby Chief Justice Basnayake, wherein the learned Judge hasstated thus:
“Both Judge and Counsel appear to have lost sight of thefact that the identification of the accused at a parade heldbefore the trial is not substantive evidence at the trial. Thefact that the witness has been able to identify the accusedat an identification parade is only a circumstancecorroborative of the identification at the trial. The jurymay act only on the evidence given before them. There isno section of the Evidence Ordinance which declaresproceedings at an identification parade to be evidence ofthe fact of identity. The principal evidence of identificationis the evidence of a witness given in court as to how andunder what circumstances he came to pick out aparticular accused person . . .".
It appears that Chief Justice Basnayake was dealing withthe adduction of proceedings at an identification parade beingadduced as substantive evidence at the trial. Certainly such acourse is not warranted and the proceedings and evidence atthe identification parade could only be used to corroborate thewitness who gives evidence at the trial under Section 157 of theEvidence Ordinance.
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The question arises whether a witness at the trial couldstate before the trial Court that he identified the accused atthe parade. Such testimony, bereft of the contents of theproceedings and evidence led at the identification parade,would it be substantive evidence?
Senior Puisne Justice Weerasooriya in Queen vsJulis(supra)at 525 discussing this issue observed that:
“Evidence relating to the identification of an accused at anidentification parade by a witness who is subsequentlycalled at the trial and gives evidence implicating thataccused would be relevant under Section 9 of the EvidenceOrdinance as a fact establishing the identity of the personwhose identity is relevant.”
In so far as Justice Weerasooriya referred to the relevancyof such evidence under Section 9 of the Evidence Ordinance,it is implicit in that pronouncement that His Lordship was ofthe view that evidence relating to the identification of anaccused at a parade by a witness is substantive evidence,establishing the identity of the person concerned, as Section6-55 of the Evidence Ordinance inclusive of Section 9 relate tothe adduction of substantive evidence before a Court of Lawwhilst Section 157 of the Evidence Ordinance relates to theadduction of evidence to corroborate the witness and thereby,show consistency on the part of the witness and therebyadvancing his credibility. This pronouncement by JusticeWeerasooriya is a pointer to the fact, that evidence given by thewitness at the trial relating to his identification of the accusedat a parade is substantive evidence establishing identity interms of section 9 of the Evidence Ordinance. But certainly theproceedings of the identification parade, including theevidence given at the parade by the witnesses would only beadmissible to establish consistency on the part of the witnessand thereby advance his credibility in terms of Section 157 ofthe Evidence Ordinance.
Though Chief Justice Basnayake has relied on thejudgment pronounced by Lord Moulton in Rex vs Christie1121 at
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159 (H.L.). I have discovered that on a reading of thatjudgment, it does not support the proposition that theevidence, of a witness at the trial Court is not substantiveevidence but is only a circumstance corroborative of theidentification at the trial.
One must in this context draw a distinction between theevidence given by a witness at the trial that he identified theaccused at an identification parade and-the adduction inevidence of the proceedings of the identification parade,including the evidence given by the witness at the parade.
However, there is a cursus curiae emanating from theSupreme Court of India laying down the principle thatthe results of an identification parade do not constitutesubstantive evidence. Matru vs State of Uttar Pradesh!131-,Shinde vs State of Maharastra1141; State of Andhra Pradesh vsK.V. Reddy1151; C.P. Fernandes vs Union Territory Goal,6); Satya■Narain vs State1171.
Learned President’s Counsel appearing for the accusedappellant contended that the learned trial judge had overemphasized and stressed unduly the identification of theaccused at the identification parade held on the 10th of April1990. One must investigate the causes and factors whichinduced the learned trial Judge to lay much emphasis inregard to the identification at the said parade. Witness TudorDias, Assistant Superintendent of Police, on reading thestatement of Sunethra expressed his opinion as to theomission in the said statement. The learned trial Judge hadbefore him that particular answer. Nevertheless, he hadhimself perused that statement which was recorded in theInformation Book. All these matters related to the issue of thetestimonial trustworthiness and credibility of witness Sunethra.These matters did not pertain to the ingredients of the offenceor to the fact in issue and the relevant facts on which thefindings had to be reached by the trial Judge. Thus, dealingwith the question of credibility, he has discussed at length
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what took place at the identification parade and the evidencegiven by witnesses at the parade, to ascertain whether therewas a vital omission or not and whether the evidence given bywitness Sunethra at the identification parade, corroborated ornot her evidence in terms of Section 157 of the EvidenceOrdinance. Thus, the Judge's detailed analysis anddiscussion of the proceedings and the evidence elicited at theparade, was with a view to determining the credibility ofSunethra’s evidence. If there was such corroboration it woulddisclose consistency in her evidence and thereby help the trialJudge to arrive at a favourable finding in regard to hertestimonial trustworthiness and credibility. It is in thisbackground that the observations pronounced and thefindings of the learned trial Judge should be viewed. Nowherein the judgment has the learned trial Judge used the Sinhalaexpression (essteioS) which is a reference to substantiveevidence.
The learned trial Judge was at all times engrossed with theanswer given by the Assistant Superintendent of Police TudorDias, the conclusion he had reached on a perusal of thestatement of Sunethra and therefore he looked into theproceedings and evidence given at the identification parade,(produced and marked as Yl) to ascertain whether there wasan omission in those proceedings and whether that evidencedid corroborate or not Sunethra’s evidence at the trial.
Learned President Counsel was not j ustified in contendingthat the learned trial Judge had not reached a finding in regardto the testimonial trustworthiness and credibility of witnessSunethra. In his judgment at page 616, 580, 581 and 596there is a clear implied finding upholding the credibility andtestimonial trustworthiness of the evidence of witness Sunethra.Without arriving at such a finding the learned trial Judgecould not have arrived at his ajudication that the prosecutionhas proved beyond reasonable doubt the charge of rapeagainst the accused. The learned trial Judge in his judgmentby necessary implication arrived at the adjudication andfinding that witness Sunethra had given truthful evidence at
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the trial when she stated under affirmation that the accusedhad come to their house on the 30th of March 1990 and in theearly hours of the morning on the 7th of April 1990. In thecircumstances the contentions advanced by learned PresidentCounsel are unjustified and unsustainable.
Although the defence counsel at the trial has markedseveral other contradictions and omissions in an attempt toassail the credibility of the prosecution witnesses, learnedPresident Counsel who appeared for the appellant at theargument of this appeal, did not refer to such contradictionsand omissions except to those which I have so far specificallyenumerated in my judgment. In the circumstances we do notpropose to burden our judgment by recapitulating and advertingspecifically to those contradictions and omissions. But weobserve that the trial Judge in his judgment has adequatelyreferred to the aforesaid contradictions and omissionsand arrived at the conclusion that those discrepancies,contradictions and omissions do not relate to the core of theprosecution case which has been presented against theaccused.
At this stage I would advert to the evidence given by theaccused in the witness box under affirmation. The accused inthe course of his evidence denied that he ever visited the houseof Robies Singho on any day and specifically asserted that hehad not gone to this house on the 30th of March 1990 and onthe 7th of April 1990. The accused has further stated that onthe 8th of April 1990, he was summoned by Tudor Dias to theAssistant Superintendent’s office, when he was recording astatement and that he came into that office dressed in civilclothing, as he had suffered an injury about one year prior tothe alleged incident referred to in the indictment.
Under cross-examination he has stated that he had nottaken part in any official duty or investigation while he wasattached to the Horana police station in relation to Robies. Hehas specifically stated in evidence that prior to the 10th of April1990 that he has never proceeded on any occasion to the house
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occupied by Robies, Sunethra and the other members ofRobies’s family. He persisted in stating that in regard to anyofficial investigations or duty that he has never proceeded tothe house of Robies situated at Kindelpitiya, Millewa. He hasfurther stated that prior to his being summoned to theAssistant Superintendent’s office, he had not ever knowneither in person or by name, either Robies, his children or anymember of Robies’s house and that he does not know whereRobies’s house is situated. At that stage he was confrontedwith a portion of the statement which the accused had madeto Police Inspector Dharmasena. That part of the statementreads as follows:
“I have on several occasions searched Robies’s house oninformation received that he was distilling kassippu. Incarrying out these search operations I came to knowthe witnesses who have given evidence in regard to theincident referred to in the indictment”.
When the accused was confronted with this statementwhich was inconsistent with his evidence at the trial, he deniedmaking any such statement and at that juncture the aforesaidstatement was marked as 22 to contradict his testimony in.Court.
The accused further, in his evidence stated that prior tothe alleged incident narrated by the prosecution witnesses,that he had never known a person called Robies. At that stagethe accused was confronted with a part of the statement hehad made to Inspector Dharmasena which reads as follows:
“I can remember that he (Robies) had been arrested andtaken into custody”.
When he was confronted with this part of the statement,the accused stated even if it has been so recorded in thestatement that he would not accept the correctness of the factso recorded. At this stage the relevant portion of his statement
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referred to by me was marked as 23 to contradict his testimonyin Court.
At page 394 of the record the accused gave his reason forwitnesses Somawathie and Sunethra identifying him at theidentification parade. Thereafter at page 395 the accusedstated under affirmation that there was no animosity ordisaffection towards him on the part of Robies or the membersof his family. He further proceeded to state that there was noreason or cause attributable to animosity or disaffection whichinduced the witnesses to identify him at the identificationparade. At this stage the accused was confronted with a partof his statement he had made to the Inspector of PoliceDharmasena. That statement reads as follows:
“I think the witnesses who identified me at theidentification parade did identify me because thewitnesses and Robies were harbouring feelings ofanimosity and disaffection towards me."
When the accused denied ever making such a statementthis part of his statement was marked as 24 to contradict histestimony at the trial. These contradictions which greviouslyimpair the credibility of the accused, have induced the learnedtrial Judge to reject the accused’s version.
The accused has referred to the fact the on the 4th of May1989 that he had suffered from a gun shot injury near theHorana police station at the hands of insurgents. He had beenin hospital for six months and thereafter had reported for dutyon the 4th of November 1989. The accused stated that he wasput on light duty and entrusted with administrative duties andthat he had donned the police official uniform on the 3nl of April1990. The accused has stated in the course of his evidence thathe made an oral application for authorisation to be dressedin civil clothing and that an oral order was made by theSuperintendent of Police permitting him to work dressed incivil clothing.
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The learned trial Judge has commented on the fact that noquestions were put to Assistant Superintendent of PoliceTudor Dias in cross-examination to elicit such authorisationto engage in official duty whilst being dressed in civilclothing. The learned trial Judge has observed that if theSuperintendent of Police had granted such authorisation,such a communication having regard to the normalofficial routine would have been communicated by theSuperintendent of Police to the Assistant Superintendent ofPolice and thereafter transmitted to the Inspector of Police andin the circumstances, the version of the accused in regard tothe oral authorisation is inherently improbable, having regardto the proved attendant circumstances. No questions havebeen put to Assistant Superintendent of Police Tudor Dias asto whether the accused when summoned to the AssistantSuperintendent’s office on the 8th of April, came to that officedressed in civil clothing. Learned Additional Solicitor-Generalsubmitted that the evidence discloses that the accused wasclad in trousers and that he wore shoes on all occasions andin the circumstances, learned Solicitor General queried – whatwas the impediment to the wearing of khaaki trousers onaccount of a previous injury to the thigh bone? He contendedthat material facts which were interwoven with his defence hadnot been put to witness Tudor Dias in cross-examination, atthe first opportunity that presented itself and therefore thebelated version of the accused that he wore civil clothing on the30lh of March 1990, certainly does not satisfy the Test ofspontaneity/promptnes. The material part of the accused'sevidence appears at page 391 of the record and the learnedtrial Judge indulges in an evaluation of the accused's evidencein his judgment at page 588.
Police officer Tillekeratne gave evidence for the defence atthe trial. His evidence was directed at dis-crediting theevidence already adduced by witnesses Sunethra andSomawathie in regard to the visit of the accused to Robies'shouse on the 30th of March and it was also directed at
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establishing that the accused was engaged in official workwhilst being dressed in civil clothing. Witness Tillekeratnestates that he left the Horana police station on 06th/ 07th Aprilat midnight and that he came back in a lorry to the policestation at 2 a.m. He has stated that the police party left on thatoccasion to make investigations in regard to a gun. Vide page432. He does not state that on this occasion that theyproceeded to Robies’s house. The evidence in the case is thatthe accused proceeded to Robies Singho's house and knockedat the door at 3.20 a.m. Hence the evidence ofTillekeratne doesnot establish any impediment to the accused proceeding to thehouse of Robies at 3.20 a.m.
Witness Tillekeratne has stated that he made an entiy inregard to his departure from the Horana police station on the30th of March in his diary. He has failed to support his oraltestimony by producing the diary in Court. Neither did he givea satisfactory explanation as to why he had failed to make anentry in regard to his departure in the official book maintainedat the Horana Police station. At page 448 of the record(ad Jinem) answering a question in cross-examination he hadgiven a palpably false answer that besides the 6th of April 1990that he has engaged in official police duties and functions withother officers without making any entries. The material part ofTillekeratne’s evidence commences at page 432 of the recordand the learned Judge having carefully analysed andevaluated the evidence of witness Tillekeratne has very rightlyrejected his evidence holding that his evidence does notsatisfy the Test of Probability and the Test of Interest andDisinterestedness of the witness whilst holding that he is apartial and partisan witness. He stated that witness Tillekeratnemade no entry anywhere in regard to his alleged official activityon the 6th of April but has falsely stated that he made an entryin regard to his departure from the Horana police station onthe 30lh of March in his diary. Vide page 437. He has also failedto produce his diary to support his bare oral statement to theCourt.
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The other defence witness who has given evidence isDananja Amarasena Walatara in whose house the accusedresided as a boarder. He has stated under affirmation that onthe 6th of April 1990 the accused did not depart from hisboarding house after 7.30-8.00 o’clock in the night. He hasstated that he slept in the hall and if the accused had thenecessity to go out, he would have had to proceed past himwhile he was sleeping in the hall. Although this witnessattempted to state that after the accused came to his boardinghouse on 06. 04. 1990 that he did not get out of his house till5 o’clock on the 7th of April, as the learned trial Judge has veryrightly observed, this witness was compelled to admit that itwas possible for the accused to have left the boarding houseunseen and un-noticed by the witness and that if a certainhighly confidential raid or detection had to be indulged in, thatthe accused would not have disclosed the fact of his leaving thehouse of the boarding master.
The learned trial Judge has applied theTest of Interest andDisinterestedness of a witness and proceeded to analyse andevaluate witness Walatara’s evidence. He has observed thoughthe witness was unable to recollect important events in hisown life and his business activities, that the witness evinceda recollection of events and incidents relating to the accusedand thereby, the learned trial Judge has applied the Test ofProbability and also arrived at the conclusion that he is aninterested and partisan witness. This witness had made abelated statement one month and seven days subsequent tothe arrest of the accused. In the circumstances, the learnedtrial Judge has applied the Test of Spontaenity/Promptnessand arrived at adverse findings in regard to his testimonialtrustworthiness. The learned trial Judge has commented thatin regard to the accused, the witness has admitted that he haskept in mind and recollected facts only after the accused wasarrested. This witness had attempted to state that he hadtaken special interest and devoted special attention to theaccused and therefore the accused could not have gone out onthe 6th of April 1990 at night without his knowledge and notice.
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The learned trial Judge has applied the Test of Probability andImprobability and has arrived at the conclusion that histestimony is replete with inherent and intrinsic improbability.He has observed though this witness was unable to rememberand recollect the day when he closed up his business, thewitness was able to recollect the day that this accused isalleged to have committed the offence and also the day he wasarrested, The learned trial Judge has in arriving at this adversefinding on the credibility of the witness stated thus:
This Court is unable to say that the learned trial Judge,who had the benefit of the demeanour and deportment ofthe witnesses who had given evidence before him, has notindulged in a j ust and correct evaluation of the testimony of thedefence witnesses. In these circumstances, this Courtupholds the evaluation of the evidence indulged in by thetrial Judge.
For the aforesaid reasons, we hold that there is no meritin the appeal of the accused-appellant and the submissionsadvanced by the learned President's Counsel who appeared forthe accused-appellant are untenable and unsustainable. Inthe circumstances we uphold the findings, conclusions andadjudications reached and pronounced by the learned trialJudge on counts two and three of the indictment.
In regard to the sentence the learned trial Judge hassentenced the accused to a term of twelve years rigorousimprisonment on count two (charge of rape) and to a term offive years imprisonment in respect of count three of theindictment (charge of abetment of rape) and made order thatthe sentences do run concurrently. However, we observe thatthe accused had been convicted on the 14 th of August 1996 and
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that he has been In remand after conviction to the present dayfor a period of three years. Extending a hand of mercy tothe accused-appellant we proceed to deduct the aforesaidperiod of three years spent in remand and thereby we reducethe term of imprisonment imposed on count two to a term ofnine years imprisonment. We affirm the sentence of five yearsimprisonment imposed by the learned trial Judge on countthree. We make order that both sentences do take effect andrun concurrently. The accused is directed to serve these termsof imprisonment from today. Subject to this variation in theterm of imprisonment on count two, we proceed to dismiss theappeal.
In conclusion, we wish to place on record our appreciationof the assistance rendered to this court by Learned AdditionalSolicitor General on the varied issues of fact and of law whicharose for consideration during the protracted argument of thisappeal.
J.A.N. DE SILVA, J. – I agree.
Appeal dismissed.
Sentence varied.