Sri Lanka Law Reports
 2 Sri L.R.
v.THE REPUBLIC OF SRI LANKA
COURT OF APPEAL.
JAYALATH, J.. RAMANATHAN, J. AND WIJETUNGA, J.
C.A. No. 42/85.
M.C. BATTICALOA No. 186/80.
JANUARY 13,15.16, 28 AND 29, 1987.
Criminal Law-Non-direction-Misdirection to the jury-Alibi-Intermediaryposition-Dock statement-Proviso to s. 334(1) of the Code of Criminal ProcedureAct-Divided verdict-s. 8(2) of the Evidence Ordinance.
Failure by the trial Judge to give the direction to the jury that if they neither accepted the• accused's defence of alibi as true nor rejected untrue the resulting position wouldbe that a reasonable doubt arises of which the benefit should be given to the accusedwould be a non-direction on the intermediary positon amountng to a misdirection onthe burden of proof. But despite this omission where the judge has given the jury thedirection that ordinarily an accused person gives evidence to show either that theprosecution case is not true or to raise a reasonable doubt as to its truth thus in effecttelling the jury that creating a reasonable doubt is sufficient for an acquittal the provisoto s. 334( 1) of the Code of Criminal Procedure Code Act can be applied.
The withdrawal by the Judge of a part of the dock statement of the accused whichconsisted of a repetition of what his son-in-law told him from the jury was not fatal tothe summing up as the omitted part was not relevant to explain his conduct unders. 8 (1) of the Evidence Ordinance.
No prejudice was caused by the failure to send the accused's shirt for examination tothe Government Analyst in view of the Police Sergeant's evidence regarding bloodstains on accused's shirt because the Judge gave the direction that one did not knowwhat the stains were thus stressing the uncertainty of the stains to the jury.
When the question of applying the proviso to section 334(1) of the Code of CriminalProcedure Act is being considered the Appeal Court will consider the facts of eachparticular case and the nature of the misdirection and non-directions. Irrespective of the‘ number of non-directions and misdirections and whether the verdict of the jury wasdivided or not the appellate court will apply the proviso and dismiss the appeal if in itsopinion the accused was not deprived of a fair trial and a reasonable jury properlydirected would have reached the same conclusion on the same facts.
CAMannarv. The Republic of Sri Lanka95
Cases referred to:
Yahonis Singhov. The Queen – (1964) 67 NLR 8.
M. A. S. deAlwis v. The Queen – (1972) 75 NLR 337.
Stirlandv. D. P. P. –  AC 315.
Pauline de Croos v. The Queen – (1968) 71 NLR 169.
Rex v. Mustafa – (1976) 65 Cr. App. Rep. 26.
F.J.K. Stinger – (1962) 46 Cr. App. Rep. 244.
Lafeer v. The Queen – (1968) 74 NLR 246.
Alfred de Zoysa v The Queen – (1971) 75 NLR 534.
Rex v. Jenkins – (1980) 72 Cr. App. Rep. 354.
Jones' Case – (1961) 46 Cr. App. Rep. 70.
Gunawardene v. The King – (1950) 52 NLR 142.
APPEAL from conviction and sentence entered by the High Court of Batt'caloa.
Ranjith Abeysuriya with G. Jayakumar, Ruwan Fernando and KamaI Gunasinghe for theaccused-appellant.
C. R. de Silva. Senior State Counsel for the State.
Cur. adv. vult.
March 10, 1987RAMANATHAN, J.
The accused-appellant Ilian Set Seeni Mannar Mannan was indictedwith one Anthonipillai Dominic for murder under section 296 of thePenal Code as follows:
'That on or about the 27th of October 1977 at Valachchenaiwithin the jurisdiction of this Court you did cause the death ofKandappu Kanapathipillai an offence punishable under section 296of the Penal Code.'
The 2nd accused died prior to the trial and the case proceeded totrial against the 1 st accused. After trial the jury found the 1 st accusedguilty of murder by a divided verdict of 6 to 1. This is an appeal againstthis conviction and sentence. The case for the prosecution rested onthe evidence of two eye-witnesses to the incident. They were thedeceased's wife and daughter.
Sri Lanka Law Reports
[1.987] 2 Sri L.R
The evidence of Thambiah Nesaratnam, the wife of the deceasedwas that on the night of the tncident at about 12 midnight she heardsomebody calling out to her husband "Kanapathipillai come". Thewitness had got up and gone out followed by her daughter. Theaccused Mannan was at the gate which was about 5 feet from whereshe stood. The witness stated that she was able to identify theaccused by moonlight. Then her husband had come out from thehouse to where she stood and asked "who are you"? Then theaccused had shot her husband. The deceased touched his chest andfell down. When the witness raised cries, the accused had breachedhis gun and reloaded it with a cartridge which he took from his belt.The witness and her daughter ran into the house, locked the door andpeeped out of the window. They saw Dominic, the accused'sson-in-law come and take the accused away. The witness stated thatthe motive for the accused shooting the deceased was due to aboundary dispute pertaining to their land.
The evidence of the deceased's daughter KanapathipillaiWijayaluxsmy corroborated the evidence of her mother. This witnesshas stated that at about 12 midnight she heard the voice of somebodycalling out Kanapathipillai. Then her mother got up and opened thedoor and went out. The witness had followed her mother. Theaccused was standing holding a gun. Then her father had come out ofthe house and asked who it was. The accused shot her father, whotouched his chest and fell down. Her mother had raised cries. Theaccused had breached his gun and loaded another cartridge. They hadrun back to the house and closed the door. They had looked out of thewindow and seen Dominic the accused's son-in-law coming andtaking the accused away.
The prosecution called Dr. K. S. Ranchalingam, the JMO Batticaloa,to describe the injuries in .the post-mortem report, as the medicalofficer who conducted the post-mortem was not available. The injuriesare as follows:
‘An entry wound with rugged edges, an inch vertically and one andone-fifth inches transversely with burning, blackening, tattooing andsingeing over the front of the right 6th and 7th ribs and theintercostal spaces, 5th, 6th and 7th situated 1 1/4" to the right ofmid external line.
CAMannar v. The Republic of Sri Lanka (Ramanathan. J.)97
Exit wounds 5 in number:
1 -2 each 1/2" in diameter and an inch apart over the back ofright 7th intercostal space-situated an inch to the right of thespine.
,3-4 each 4/5 of an inch in diameter and 1/3" of an inch apartover the back of right 8th intercostal space-situated 3/4" to theright of spine.
5 half-an-inch in diameter over back of right 8th intercostal space1 /5th of an inch outer to injury No. 4."
The Doctor had stated that the assailant would have been five to sixfeet away from the deceased'when the assailant shot the deceased.The medical evidence corroborated the eye witnesses evidence withregard to the range of fire on the basis of blackening, tattooing andsingeing found on the deceased's body, establishing the proximity ofthe assailant to the deceased.
The prosecution next called P.S. 6929 Paramanathan who was onreserve duty at Valachchenai Police Station on the night of 27thOctober, 1977 when the accused and Dominic came and handedover the gun. The witness also stated that the accused had stains ofblood on his shirt.
The other police officer was S. I., P. P D. Silva who was one of theinvestigating officers. He had on the night of 27th October, 1977smelt the gun (P2) handed over by the accused and found that it wassmelling of gun powder indicating that it had been recently fired. TheInspector had visited the scene of the incident and found thedeceased lying on his back in the compound of the complainant andhe had recovered (P4) waddings at the scene. The Inspector statedthat it was a poya day and there was moonlight.
When the prosecution case was closed, the accused MannarMannan made a statement from the dock in which he stated that hewas a retired army officer. His eldest daughter was marrir 1 to Dominicwho resided in the adjoining land to that of the deceasea. where therewas a boundary dispute. He knew the deceased who was a forestguard. On the night of the incident when he was sleeping he heard anoise and the sound of women crying. He stepped out and went,
Sri Lanka Law Reports
 2 Sri LR.
towards his daughter's house. When he was passing the deceased'shouse, he met Dominic, his son-in-law going out of the gate of thedeceased's house. He asked Dominic what happened. Then Dominicinformed him that he had gone out to shoot wild boar and met theforest guard who was drunk. The deceased had brought him into thecompound and started arguing with him regarding the land dispute.During the argument the deceased had. tried to snatch the gun andassault him. In this scuffle the gun went off accidentally and struck thedeceased who fell down.
The principal submissions of counsel, for the appellant were asfollows:
Firstly, that the accused had raised the defence of alibi, but the trialjudge in his summing up had omitted to give the jury the direction asto what the jury ought to do if they neither accepted the accused'sdefence of alibi as true nor rejected it as untrue. It was submitted bycounsel for the appellant that this was a non-direction on a necess.arypoint and constituted a misdirection. In support of this contention,counsel cited Yahonis Singho v. The Queen (1) where Justice T. S.Fernando had observed that where the evidence was neither acceptednor rejected, the resulting position that a reasonable doubt would existas to the truth of the prosecution evidence and that an accused isentitled to be acquitted.
It was further submitted by counsel for the appellant that wherethere has been a misdirection or non-direction on the burden of proof,the appellate court should not apply the proviso to section 334(1) ofthe Code of Criminal Procedure Act, in view of Justice G. P. A. Silva's(S.P.J.) judgment in M. Ay S. de Alwis v. The Queen (2) which heldthat the proviso to section 5(1) permitting the dismissal of an appealon the ground that no miscarriage of justice has actually occurred,even though the point raised on behalf of the appellant might bedecided in his favour, is not applicable to a case where there has beena clear misdirection by the trial judge on the burden of proof. In thiscase a fresh trial was ordered.
Secondly, it was submitted that the trial judge had wronglywithdrawn from the jury a part of the accused's dock statement andthus the accused was unable to explain his conduct as to the reasonwhy he went to the Police Station with the gun. The entirety of whatthe accused's son-in-law Dominic had told the accused, it wassubmitted had been excluded by the trial judge on an erroneous basis
CA• Mannar v. The Republic of Sri Lanka (Ramanathan, J.)99
it was further submitted by counsel that by virtue of section 8(2) ofthe Evidence Ordinance, where the conduct of any person is relevant,any statement made to him which affects such conduct was relevant.Therefore, the accused was entitled to have the totality of what hisson-in-law had told him put to the jury, as this was the reason why theaccused went to the Police Station with the gun.
The trial judge had only permitted a part of the accused's dockstatement for the jury's consideration in his summing up andwithdrawn the entirety of Dominic’s statement to the accusednamely-
"Then I asked him as to what happened. He told me by mistake hehad shot the Forest Guard. Then I held him by my hand and took himtowards my house. When he told me that he had shot the ForestGuard by mistake he had a gun in his hand. When I was holding hishand and taking him to.my house he told me what happened. Hesaid that he went as usual to see whether there was any wild boar inhis field and after that when he was coming through the land andentering the main road and while passing the house of the Forest-Guard, Forest Guard Kanapathipillai was standing in his compoundand called him. He had gone to him without knowing that he wasdrunk. Thereafter the Forest Guard had taken him into hiscompound some distance away from his house and started to arguewith him regarding the land dispute that has arisen betweenSundaramoorthy and Dominic. At one stage the argument wenthigh and Kanapathipillai had tried to snatch the gun and with areeper in his hand assaulted him. As the gun was already loaded, inthe scuffle it got fired accidentally. When it got fired like that italighted on Kanapathipillai and he fell down."
Thirdly, the shirt worn by the accused had not been sent to theGovernment Analyst, but at the trial evidence had been adduced thatthere were bloodstains, thereby causing prejudice to the accused.
Learned Senior State Counsel while conceding that the trial judgehad failed to give the direction as to the intermediary position asstated in Yahonis Singho's case (supra) (1) nevertheless submittedthat there had been a direction by the trial judge that ordinarily anaccused person gives evidence to show either that the prosecutioncase is not true or to raise a reasonable doubt as to its truth and thenhad gone on to deal with the accused's dock statement. Therefore thetrial judge had given a direction that creating a reasonable doubt wassufficient for an acquittal.
 2 Sri L.R.
Sri Lanka Law Reports
On the second question raised by counsel for the appellant, it wassubmitted by Senior State Counsel that the part of the dock statementwhich was withdrawn was not required to explain the conduct of theaccused to the jury, as it does not fall within the ambit of explainingconduct.
As to the third submission made by counsel for the appellant inregard to the observation of the Polipe Sergeant regarding bloodstainson the accused's shirt, it was submitted by Senior State Counsel thatthe Judge had given a direction that one does not know what stainsthey were. Therefore he had stressed the uncertainty of the stains tothe jury.
Let me now consider the proviso to section 334(1) of the Code ofCriminal Procedure Act which states-
"Provided that the court may, notwithstanding that it is of opinion
that the point raised in the appeal might be decided in favour of the
appellant, dismiss the appeal if it considers that no substantial
miscarriage of justice has actually occurred."
The purpose of the proviso is to prevent appeals being allowed onthe basis of technicality, regardless of whether prejudice has beencaused or not to an accused person.
The two matters which frequently come in appeals from jury/trialsare:-
Whether the summing up to the jury by the Judge hadmisdirections or non-directions on questions of law. 2
2.Whether there has been misreception of evidence. The criteria' with regard to the exercise of appellate jurisdiction involving
misreception of evidence in criminal trials is settled law. The testto be applied, is set out by the House of Lords in Stirland v.D.P.P. (3) and adopted by T. S. Fernando,J. In Pauline de Croosv. The Queen (4).
Furthermore, on the question of misreception of evidence,Scorman, L.J. in the Court of Appeal remarked in Rex v. Mustafa (5)emphasising that there is no rule of law or practice which prevents theoperation of the proviso in cases where an appellate court has heldthat evidence was wrongly admitted, as each case must depend uponits particular facts and upon an assessment of the risk of prejudicecreated by the omission of inadmissible evidence.
CAMannar v. The Republic of Sri Lanka (Ramanathan. J )
!n the present case we have to consider non-directions by the trialjudge. Counsel for the accused-appellant complains that on thequestion of the defence of alibi the intermediary position had not beenstated. Counsel submitted that this was a non-direction on the burdenof proof which vitiated the trial and the proviso could not be appliedwhere there has been a misdirection on the burden of proof. In supportof this contention he cited M. A. S. de Alwis v. The Queen (supra) (2)where the appellate court did not apply the proviso.
Firstly I am of the view, that there is a difference between amisdirection and a non-direction. The English Court of Appeal hasapplied the proviso where the trial judge has omitted to tell the jurythat the burden of proof is on the prosecution as seen in F T. K.Stinger (6) where the court was of the opinion, that where anon-direction or misdirection is not material to have deprived theaccused-appellant of the substance of a fair trial, the appellate courtshould apply the proviso and dismiss the appeal.
In Lafeer v. The Queen (7) the trial judge had misdirected the jury onthe burden of proof by directing them that the prosecution has toprove its case to the satisfaction of the jury. It was held that althoughthis was a misdirection and non-direction on matters concerning thestandard of proof, nevertheless the court was of the opinion havingregard to the cogent and uncontradicted evidence that a jury properlydirected could not have reasonably returned a more favourableverdict. The conviction and sentence were affirmed and the appealdismissed.
The other important case is that of Alfred de Zoysa v. The Queen(8). In this case H. N. G. Fernando, C.J. has stated – if we confidentlythink the jury did accept as true the prosecution.evidence on materialpoints, then further wrong instructions would have contributed little tothe jury's ultimate verdict.’In this case the trial judge has stated overand over again to the jury – if you believe the prosecution witnessesbeyond reasonable doubt on certain material points, then thedeliberate falsehoods of the 1 st accused on these points wouldstrengthen the prosecution case. This was a clear misdirection on theburden of proof. But nevertheless as these misdirections andnon-directions were not so material as to justify an opinion that theappellants were deprived of the substance of a fair trial, the appealwas dismissed.
The English Appellate Court's approach to the applicability of theproviso where there has been a misdirection of law by. the trial judge tothe jury is best exemplified by Rex. v. Jenkins (9). This was a case
Sri Lanka Law Reports
 2 Sri L.R.
where the trial judge had given no warning about the danger of actingupon certain uncorroborated evidence. The view taken was that theCourt of Appeal has to have regard to the facts of each particular caseand not to questions of the normal approach. If there was sufficientother convincing evidence to make the conviction safe andsatisfactory then.the proviso can be applied.
In the case of F. J. K. Slinger (supra) (6) the trial judge in hissumming up had not referred to the burden of proof being on theprosecution. The Court of Appeal applied the proviso to section 4(1)of the Criminal Appeal Act, 1907, which is similar to the proviso tosection 334(1) of the Code of Criminal Procedure. The proviso wasapplied although the summing up was defective, because in thecircumstances of this case the appellate court was satisfied that there• was no substantial miscarriage of justice and accordingly the appealwas dismissed.
I am not in agreement with the view expressed by G. P. A. Silva,S.P. j. in M. A. S. de Alwis (supra) (2) where he had stated that therehad been no cases where despite a clear misdirection on the burden ofproof the Court has thought it fit to dismiss the appeal and affirm theverdict of the jury.
In my view, this is an overstatement of the law and unduly restrictsthe application of the proviso which , was not the intention of thelegislature. I am fortified in my view as neither the Appellate Courts inEngland nor the Appellate Courts in this country have automaticallyexcluded applying the proviso merely on the ground that there hasbeen misdirection by the trial judge on questions of law.
It is also my view that an appellate court has to consider the facts ofeach particular case and then decide in view of the non-directions andmisdirections made by the trial judge whether the appellant wasdeprived of a fair trial or not. If on the other hand the appellate.court isof the opinion that they are unable to exclude that a reasonable juryproperly directed would have reached the same conclusion on thesame evidence, then in my view an appellate court had the discretionto apply the proviso and dismiss the appeal.
Thus; in my view where there have been non-directions which havenot caused a miscarriage of justice, the proviso can be applied wherethe appellate court is of the opinion that a reasonable jury would not
CAMannar v. The Republic of Sri Lanka (Ramanathan, J.)103
have acquitted on the prosecution evidence placed therein, regardlessof the non-direction. The other question is where there has been morethan one non-direction by the trial judge, can the proviso be applied? Itappears that this would depend on the facts of each case and thenature of the non-directions rather than the number of non-directionsas seen in Jones' Case (10).
The next question to consider is whether the proviso can be appliedin cases of divided verdicts. In Gunawardene v. The King (11)Gratiaeh, J . in a majority judgment was of the opinion that the provisocannot be properly applied in cases of divided verdicts. But Pauline deCroos's case (supra) (4) has differed from this view. I see no reasonwhy the proviso should not be applied merely because one member ofthe jury has been in disagreement of the evidence against the accusedwhich is so cogent that the only conclusion possible in my opinion isthat the dissenting juror was manifestly perverse in arriving at hisverdict in the circumstances of this case.
This is a simple case where the jury have heard and seen thewitnesses. The prosecution case rested on the testimony of the twoeye witnesses Thambiah Nesaratnam, the deceased's wife and thedeceased's daughter Vijayaluxmy. Vijayaluxmy has corroborated hermother's evidence as to the material points. Their evidence standsstrong and clear as to the identity of the accused, which was aided bymoonlight and from a distance where they stood which was about 6feet away from the accused, who was well known to them. Theaccused had called out for the deceased Kanapathipillai to come.When the deceased had come out of the house to where thewitnesses were, the accused had shot him at very close range. Thedeceased had touched his chest and had fallen down. The witnesseshave also testified to evidence of motive which is a boundary dispute.
The medical evidence has corroborated the evidence of the eyewitnesses as to the distance between the assailant and the deceased.
The ocular evidence is cogent and uncontradicted and is supportedby medical evidence.
On the question of the accused's statement from the dock,although the trial judge had put only a part of the dock statement forthe jury's consideration, the withdrawal of what Dominic is alleged tohave told the accused has in my view not caused any prejudice to theaccused as the entirety of the dock statement is not required forexplaining the accused's conduct of going to the Police Station. The
Sn Lanka Law Reports
 2 SnL.R
portion admitted clearly shows the reason why the accused went tothe Police Station as the gun used belonged to him. The entirety of thedock statement was not necessary to explain the accused's conduct.
What Dominic told the accused is not relevant to explain theaccused's conduct. What was relevant for explaining the accused'sconduct as to why he went to the Police Station had been told to thejury. I am satisfied that the jury has been given an explanation why theaccused went to the Police Station with the gun. There has been nobreach of section 8(2) of the Evidence Ordinance and no prejudicecaused to the accused.
On the question raised that the trial judge has failed to give adirection as to the intermediary position, the trial judge had given adirection to the jury stating that ordinarily an accused person givesevidence to show either that the prosecution case is not true or toraise a reasonable doubt as to the truth and had then gone on to dealwith the accused's dock statement. He has also stated that theburden is always on the prosecution to prove the case against theaccused beyond reasonable doubt.
The situation in Yahonis Singho's case (1) was where theaccused was charged with murder and the defence was one of alibi.The accused called a witness who stated that the accused was at thetime of the incident in a boutique a mile away. The trial judge had notgiven a direction as to what they were to do if they neither acceptedthe evidence nor rejected it. The resulting position was that a doubtexisted as to the truth of the prosecution case. The Court of Appealheld that if the evidence was neither accepted nor rejected, theresulting position would have been that a reasonable doubt existed asto the prosecution case. In the instant case the accused lived only afew houses away from the place of the incident and the question mayalso arise as to what extent the defence of alibi will arise in this case. I
I am of the opinion that , the failure by the Judge to explain theintermediary position in the defence of alibi would not have deprivedthe accused-appellant the substance of a fair trial in view of the strong
CAMannar v. The Republic of Sri Lanka (Ramanathan. J.)105
and cogent evidence of the two eye witnesses. A jury properlydirected would not have returned a more favourable verdict. I amsatisfied that the jury has rightly accepted the evidence on materialpoints and the failure of the trial judge to explain the intermediaryposition to the jury is not sufficient to justify any opinion that theaccused-appellant was deprived Of the substance of a fair trial.
I have considered the submission made by counsel for the appellantas to the observation made by the Police Sergeant regarding stains ofblood on the accused's shirt. I see no prejudice caused to theaccused-appellant as the trial judge has given an adequate directionwhen he said "you do not know what stains they were". This warningwould have negatived .any risk of prejudice which would have beencaused.
I am of the view that on the facts and circumstances of this case areasonable jury if properly directed would inevitably and without anydoubt have reached the same conclusion that it was this accused whofired the shot on the night of the 2Vth of October, 1977 and was thusguilty of murder.
I would therefore exclude any possibility that a reasonable juryproperly directed on this evidence placed before the jury by theprosecution and defence would have come to a different conclusionand if they did so it would be in my view a perverse verdict. Justicemust not only be fair to the accused but also to the state and thepublic for whose protection the laws are made and administered.
In the circumstances of this case, I am quite satisfied that there wasno substantial miscarriage of justice notwithstanding the non-directionto the jury. I am of the view that this is a fit case where the proviso tosection 334(1) of the Code of Criminal Procedure Act should beapplied and I affirm the conviction and sentence and dismiss theappeal.
JAVALATH, J. – I agree.
WIJETUNGA, J. – I agree.