Liyanage v. Attorney – General
COURT OF APPEAL.
COLIN-THOME, J. AND ATUKORALE, J.
C.A. (s. C.) 9/78—D. C. COLOMBO b/532.
FEBRUARY 27, 1979.
Bribery Act—Charges of solicitation and acceptance—Need for corro-boration.
In a trial under the Bribery Act on a , charge of solicitation, it isunsafe to allow a conviction to stand solely on the uncorroboratedtestimony of the complainant.
On the charge of acceptance however the trial judge’s findingscould stand because the evidence of the complainant had been materiallycorroborated by another witness.
Sri Lanka Law Reports(1978-79) 2 5. L.R.
APPEAL from the District Court, Colombo.
R. I. Obeysekera, with D. M. S. Gunasekera, for the accused-appellant.PouQlas Halangoda, State Counsel, for the State.
Cur adv. milt.
April 3, 1979.
The accused in this case was indicted on two counts, namely: —
That on or about March, 1972 at Padiliyatuduwa, you
did solicit a gratification of a sum of Rs. 1,000 from oneW. D. Agnes Nona as an inducement or a reward foryour furthering the securing of a benefit from theGovernment for the said W. D. Agnes Nona, to wit:an allotment of State Land, and that you are therebyguilty of an offence punishable under section 20 of theBribery Act.
That on or about March, 1972 at the place aforesaid in
the course of the same transaction, you did accept agratification of a sum of Rs- 300 from one K. Iranganieas an inducement or a reward for your furthering thesecuring of a benefit from the Government for theaforesaid W. D. Agnes Nona, to wit, an allotment ofState Land, and that you are thereby guilty of anoffence punishable under section 20 of the Bribery Act.
After trial he was convicted on both counts and was sentencedby the learned District Judge to a term of 2 years’ rigorousimprisonment on each count. He was also ordered to pay a fineof Rs. 500 in default 5 months’ rigorous imprisonment on eachcount and in addition a penalty of Rs. 300 in default 3 months’rigorous imprisonment. The substantive jail sentences were torun concurrently whilst the default sentences were to run con-secutively. He has appealed from this conviction.
Learned Counsel for the accused submitted to us that the con-viction cannot stand and must be quashed, for the followingreasons:
that the learned trial judge has failed to analyse and
evaluate the evidence of the prosecution in the light ofthe vital contradictions in the evidence of the prose-cution witnesses ;
that the evidence of the complainant was in fact
uncorroborated although the learned trial judge hastreated certain items of evidence as constitutingcorroboration;
Liyanage v. Attorney-General (Atukorale, J.)
that the learned trial judge has not brought his mind tobear on the belatedness of the complaint and its effecton the prosecution case.
The prosecution mainly relied on the evidence of 3 witnesses,Agnes Nona (the complainant) her daughter Iranganie and oneGamini. According to Agnes Nona somewhere in March 1972the accused who was the Grama Sevaka, came to her house in con-nection with a complaint made by Rolin Nona, the occupant ofthe adjoining land about the flow of water to her land from thecomplainant’s land. Agnes Nona then told the accused thatthere are 3 families residing in her allotment of land and thatit was not sufficient for all of them and requested the accused toget her another allotment of Crown land. He promised to lookinto the matter. Several weeks later the accused came to herhouse and told her that there is a small block of Crown land atRanimadama and that he will be able to get that block for herbut that he could not do it for nothing and that she will haveto spend about Rs. 1,000 or Rs. 1,500 as he had to pay money tosome departmental officers and for stamp fees and also for histravelling expenses. Agnes Nona told him that she did not haveso much of money and that if she had, she could have purchaseda block of land and that she was able to give him Rs. 300. Heagreed and told her that if she gave the money early he wouldbe able to get the block of land soon. She raised the money inabout 3 weeks’ time by selling her cow for Rs. 225 and borrowingRs. 50 from a beedi wrapper. She then one day went with herdaughter Iranganie to the office of the accused at about 7.30 or8 p.m. and met him. At that time witness Gamini was inside theroom close to the accused assisting him to write up the rationbooks and the identity cards. When they were discussing aboutthe transaction Gamini got up from the place where he wasseated and went further and sat on the bed. Agnes Nona handedover Rs. 200 to Iranganie and asked her to hand it over to theaccused. Iranganie took the money, counted it, went up to theaccused and gave it to him. It consisted of a 100 rupee note andtwo 50 rupee notes. Agnes Nona got Iranganie to give the moneyto the accused thinking that if she gave it herself she may notget ihe land as she was an unlucky woman. She said Gamini sawthe money being given to the accused. About 10 days later sheand her daughter Iranganie again went to the accused’s office andthere her daughter handed over Rs. 100 to the accused. On thatoccasion too Gamini was present and he saw the money beinggiven to the accused. Agnes Nona further stated that about 7 or8 months later she met the accused who told her, “Don’t fear.Memter-mahatmaya also signed. Mr. Sooriya-aratchi also signed.
Sri Lanka Law Reports (1978-79) 2 S. L. R.
You can get this soon.” Member-mahatmaya is the ward mem-ber and Sooriya-aratchi is the Member of Parliament. Thereaftersince she did not receive any communication from the Govern-ment and she did not meet the accused, she went in search ofhim and learnt that he had been transferred to some other divi-sion. She then went to meet Gamini. She told him that theaccused took Rs- 300 to get her a Crown allotment from Rani-mada.ma and that she got neither the land nor the money noris she able to trace the accused. Gamini told her that the accusedwas at Heiyantuduwa and promised to discuss this matter withthe accused. She asked Gamini to some how or other obtain themoney for her. Later she went to meet Gamini who told herthat the accused agreed to return the money in instalments ofRs. 100. Several weeks later since she did not get any moneyshe again went to meet Gamini who gave her a letter to be givento the accused. She, however, kept the letter with her withoutgiving it to the accused thinking that she would lose the letteralso. Thereafter she went again to the accused’s office at Heiyan-tuduwa. When she went there, there were 4 persons who hadcome to see the accused in connection with a complaint. Theaccused ask her to be seated for a while. She said she cannotbe seated any more and that she had come on several occasionsbut failed to achive the purpose for which she came. He againasked her to wait for some time. After those persons left hetold her that it is not good to discuss their transactions in thepresence of others. Then she told him that she had lost both themoney and the land and that a well and a house were beingconstructed on that land and that he is not doing his duty. Theaccused told her not to be concerned with wells and houses beingbuilt on other people’s lands and so saying he took out a knifeand kept it on the table. She took a few steps back and told himthat it was money that she earned after much suffering and thatshe has lost the money and the land. Thereupon the accusedwarned her not to come to his office. Then she told him that shewill not come to his office again and boarded a bus to Colombo.She went to the Fort Police Station and informed an officer therewho asked her why she delayed so long and took her to theBribery Commissioner’s Office and handed her over there. Shethen made her complaint to the Bribery Department. ThereafterGamini came to her house and told her that the accused had givenhim Rs. 100 to be given to her and requested her to accept it. Butshe refused in view of the fact that she had already complainedto the Bribery Commissioner. Agnes Nona also stated that afterinvestigations into her complaint had been made by the BriberyCommissioner the accused came to her house on a bicycle one
Liyanage v. Attorney-General (Afukorale, J.)
day at night and asked her why she went so far and said “ let ussettle the transaction entered into by us. ” He then asked her tocollect the money before the Bribery Commissioner. She agreedbut did not go. The accused then came to her house the followingday. He said that he waited for a long time at the Bribery Depart-ment and asked her why she did not come. She then went to theKadawata Police Station and made a complaint regarding this.The police warned her not to go anywhere at the invitation ofany one in respect of this matter. The accused came to her housethe next day also, and asked her whether she is not acceptingthe money. Then she informed him that she complained to theofficers of the Bribery Department and that she did not wantto discuss about this matter any further with him. The accuseddid not attempt to give her the money even on that occasion.Then he asked her whether she wants to go to courts withoutaccepting the money. When she replied that what she wants isto get the money back through the officers and not to go tocourts. He left saying “ go to courts and see Under cross-examination it was suggested to her that she was giving falseevidence as she was angry with him owing to his close associa-tion with Rolin Nona and her husband Ebert (the occupants ofthe adjoining land). She denied this. She also denied that sheabused the accused on one occasion saying that she did notreceived electoral lists.
Witness Iranganie (the daughter of the complainant AgnesNona) herself gave evidence and stated that one day in March1972 at about 6.30 p.m. she and her mother went to meet theaccused ai his office. The accused was in his office with Gamini.She was given some money by her mother to be handed over tothe accused. She took the money, counted it and handed overthe same to the accused. The amount was Rs. 200. She saidGamini saw the money being given to the accused.
On a later date she went again with her mother to the accused’soffice. On that occasion too she was given Rs. 100 by her motherto be given to the accused. She counted the money and gave itto the accused. Gamini was present on that occasion too and hesaw the money being given to the accused. She said that at thetime the money was paid the accused promised to get theallotments of land at Ranimadama. As her mother did not getthe land her mother complained to the Bribery Commissioner’sDepartment. Later the accused came to their house and askedher mother why she has gone so far, about this transaction andthat if she told him earlier he would have refunded the money.He said that he was asked to and had made a statement to the
Sri Lanka Law Reports (1978-79) 2 S. L.R.
Bribery Commissioner. He asked her mother to come to theBribery Department the following morning to take the money.Her mother did not however go the Bribery Department. Thefollowing night the accused came to their house and asked hermother why she did not come to the Bribery Department. Hermother then told him that she has nothing to do with himhereafter and that she does not want the money back. Iranganiefurther slated that she learnt from her mother that Gamini hadcome to their house. She also stated that her mother made a com-plaint to the Kadawata Police. Under cross-examination shestated that at the time she gave the money to the accused heaccepted the same saying that if the money is paid soon like thishe can get the land soon.
Witness Gamini giving evidence stated that in March 1972 hewas assisting the accused in his work. He did not receive anypayment from the accused and was helping him as a friend.He was present when Agnes Nona and Iranganie came to theaccused’s office in March, 1972. When they came he went a littledistance away to allow them to speak to the accused. He did nothear what they spoke nor did he see Iranganie giving the accusedanything. About a week or two later they came again and he sawmoney being kept on the table. He does not remember who keptthe money but he saw 50 rupee notes. On that occasion too hedid not hear what they spoke. Later on he asked Agnes Nonawhy money was given to the accused. She told him that it wasto get an allotment of land. A few months later Agnes Nona methim and told him that she had given Rs. 300 to the accused butthat she did not get the land and asked Gamini to get the moneyback for her. He then went to meet the accused and told him toto return the Rs. 300 of “ these innocent people.”. He promisedto return the same in instalments of Rs. 100. Later the accusedsent a message to him to come to Heiyantuduwa. When he wentthere the accused gave him Rs. 100 to be given to Agnes Nona-Gamini came back and offered the money to Agnes Nona butshe refused to accept the same. He then returned it to theaccused. He said he was not certain as to the time when AgnesNona and Iranganie came to the accused’s office. He could notremember whether it was in the morning or in the evening butit was not at night.
Witness Abeygoonawardene during the course of his evidencestated that the accused was the Grama Sevaka of Padiliyatu-duwa from 28.9.1971 to 31.12.1973 and that the accused had noauthority to grant any Crown land to any applicant.
Liyanage v. Attorney-General (Atukorale, J.)
At the close of the prosecution case the accused who, excepton the first day was undefended was called upon for his defence.He made a statement from the dock. He denied having gone tothe house of Agnes Nona in March, 1972 in connection with thedischarge pf his duties. If he did, it could have been proved byhis diaries. He also said that he neither solicited nor accepted anymoney from Iranganie.
On a consideration of the prosecution evidence it is clear thatthe evidence of Agnes Nona on the 2nd count of the indictment,namely, the acceptance by the accused of a gratification of asum of Rs. 300 from Iranganie as an inducement or a reward forfurthering the securing to Agnes Nona of an allotment of Crownland, has been materially corroborated by the evidence of Iran-ganie. Gamini’s evidence that he saw money being placed on theaccused’s table on the second occasion by Iranganie and thatlater that the accused sent for him and gave him Rs. 100 to begiven to Agnes Nona also supports the evidence of both AgnesNona and Iranganie in respect of the 2nd count. The learnedDistrict Judge has accepted their evidence and I think there isample evidence to support the verdict of the learned DistrictJudge on count 2 of the indictment. The only material contradic-tion was that whilst Agnes Nona and Iranganie stated thatGamini saw the money being given to the accused at his officeGamini himself stated that he saw money being kept on thetable and that too only on the second occasion. This contradic-tion has escaped the attention of the learned District Judge. ButI do not think that in the light of the other evidence in the caseit is of each a vital nature as to vitiate the finding of the learnedDistrict Judge on count 2. In regard to count 1 however theevidence of Agnes Nona is uncorroborated. The learned DistrictJudge does not seem to have addressed his mind to this fact. Ido not think it is safe to allow the conviction on count 1 tostand solely on the uncorroborated testimony of the complainantAgnes Nona particularly in view of the fact that the learnedDistrict Judge himself appears to have been reluctant to acton her evidence alone. We therefore quash the conviction andsentence on count 1.
Learned Counsel for the accused also submitted that thelearned District Judge has failed to consider the fact that thecomplaint of Agnes Nona was belated and its impact on theprosecution case. No doubt there seems to have beena lapse of some time before the complaint was made.But the evidence discloses several attempts to get themoney back by Agnes Nona both before and after theaccused was transferred to Heiyantuduwa. Gamini himself at
Sri Lanka Law Reports (1978-79) 2 S.L.R.
her request was attempting to get the accused to refund themoney. These attempts no doubt would have taken a fairly longtime. The evidence shows that it was only when the accusedthreatened the complainant Agnes Nona and warned her not tocome again to his office at Heiyantuduwa that she lodged hercomplaint. Under the circumstances and in view of the clearevidence of acceptance by the accused of the money I do notthink this submission of learned Counsel has any merit.
For the above reasons we set aside the conviction and sentenceof the accused on count 1 and acquit him of that count. We affirmhis conviction and sentence on count 2- He will also pay themandatory penalty of Rs. 300 imposed on him by the learnedDistrict Judge.
COL1N-THOME, J.—I agree.
Conviction set aside on count 1.
Affirmed on count 2.
G. G. Ponnambalam (Jnr.)
Liyanage v. The Attorney-General