052-SLLR-SLLR-1999-V-3-MOSES-v.-STATE.pdf
CA
Moses v. State
401
MOSES
v.STATE
COURT OF APPEAL.YAPA, J.,KULATILEKA, J.
CA NO. 58-59/98.
HC GALLE NO. 1581.NOVEMBER 1, 1999.
Murder – Code of Criminal Procedure Act, ss. 203, 283 (1), 334 (2), 449 – Absence
of a judgment – Deprivation of the right of appeal of an accused by failing to
give reasons in judgment – Criteria to be applied when sending a case back –
Adverse witness – Evidence Ordinance, s. 154 – Probative value.
Held:
S. 203, s. 283 (1) – Make provision that the judgment shall be writtenby the Judge who heard the case and shall be dated and signed by him.It is a mandatory requirement – A duty is cast on the Judges to give reasonstor their decisions, as their decisions are subject to review by superiorcourts.
Though s. 334 (2) refers to cases of trial by jury, it is reasonable andproper to assume that the intention of the legislation must necessarily bethe same, whether it is a trial before Jury or Judge sitting alone. Thedeciding factor being that there should be evidence upon which theaccused might reasonably have been convicted.
Once a prosecution witness is declared hostile the prosecution clearlyexhibits its intention not to rely on the evidence of such a witness, andhence his version cannot be treated as the version of the prosecution itself.
APPEAL from judgment of the High Court, Galle.
Cases referred to:
Ibrahim v. Inspector of Police, Ratnapura – 59 NLR 235 at 236.
King v. Fernando – 46 NLR 254.
402
Sri Lanka Law Reports
(1999J 3 Sri L.R.
Dahanayake v. Kannangara – 72 CLW 62.
O. v. Abilinu Fernando – 70 NLR 73.
Keshoram Bora v. State of Assam – 1978 AIR 65 – SC 1096 para 6.Dr. Ranjith Fernando with Sandamali Munasinghe tor accused-appellant.Yasantha Kodagoda, Senior State Counsel for Attorney-General.
Cur. adv. vuft.
November 01, 1999.
HECTOR YAPA, J.
The accused-appellant M. Rose Moses was indicted in the HighCourt of Galle, for committing murder by causing the death ofLokunarangodage Wimalasena on 18.07.1986, an offence punishableunder section 296 of the Penal Code. The case was heard beforethe High Court Judge, without a jury. After trial the accused-appellantwas found guilty of murder and was sentenced to death.
The prosecution led the evidence of witnesses TiranagamageGunapala, Ukwatta Jalage Ariyawathie, Withanachchige Panditha, themedical evidence and the Police evidence. At the trial witness Gunapalawas treated adverse by the prosecution under section 154 of theEvidence Ordinance, and thereafter he was convicted for perjury interms of section 449 of the Code of Criminal Procedure Act, No. 15of 1979, and sentenced to a term of two years' rigorous imprisonment.The second witness Ariyawathie was also treated adverse by theprosecution. The evidence given by witness Panditha was that, afterthe incident he admitted the deceased to Mahamodara hospital andalso testified that the deceased was taken to the General Hospital,Colombo, for an operation and later transferred to Galle hospital wherehe had died. According to the doctor the deceased had two cut injuries,one on the left side of the head and the other injury was on the neckand expressed the view that these injuries could have been causedwith a knife. The cause of death was due to an injury caused to the
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Moses v. State (Hector Yapa, J.)
403
brain by stabbing with a pointed knife. After the formal evidence ofthe police and the registrar of the Court, the prosecution case wasconcluded. When the defence was called, the accused-appellant didnot lead any evidence and opted to remain silent.
At the hearing of the appeal the learned senior counsel for theaccused-appellant submitted that, in this case there was no judgmentdelivered by the learned High Court Judge in terms of section 203of the Code of Criminal Procedure Act. Learned’ counsel contendedthat this was a grave error on the part by the learned High CourtJudge and therefore the conviction and the sentence should be setaside. The section 203 of the Code of Criminal Procedure Act providesas follows:
"When the cases for the prosecution and defence are concluded,the Judge shall forthwith or within ten days of the conclusion ofthe trial record a verdict of acquittal or conviction giving his reasonstherefor and if the verdict is one of conviction pass sentence onthe accused according to law."
In addition learned counsel referred us to section 283 (1) of theCode of Criminal Procedure Act which makes provision that thejudgment shall be written by the Judge who heard the case and shallbe dated and signed by him. Therefore, having regard to theseprovisions it is very clear that there must be a judgment where reasonsshould be given by the Judge. It is a mandatory requirement, wherea duty is cast on the Judges of the trial Courts to give reasons fortheir decisions, for their decisions are subject to review by superiorCourts. If their decisions are to be challenged, then, obviously reasonsare essential. Therefore, the failure to give reasons in this case woulddeprive the accused-appellant of his right to canvass the convictionand the sentence in this Court. Furnishing of reasons not only assistthe Court of Appeal in scrutinizing the legality and the correctnessof the order made by the lower Court, but also the existence of reasonswill tend to support the idea of justice and would enhance the publicconfidence in the judicial process. Failure to give reasons may evenlead to the inference that the trial Judge had no good reasons forhis decision. Learned counsel cited the case of Ibrahim v. Inspector
404
Sri Lanka Law Reports
[1999] 3 Sri L.R.
of Police, Ratnapuraat 236 where L. W. de Silva, AJ. stated asfollows: "The learned Magistrate's omission to state the reasons forhis decision has deprived the appellant of his fundamental right tohave his conviction reviewed by this Court and has thus occasioneda failure of justice. Without such reasons, it is impossible for this Courtto judge whether the finding is right or wrong. I, therefore, set asidethe conviction and sentences and order a new trial".
In view of this grave error on the part of the learned High CourtJudge in not giving reasons for his decision, we are of the consideredview that the conviction and the sentence passed on the accused-appellant cannot be allowed to stand and therefore it should be setaside.
The next question to be considered in this appeal, is whether thereis sufficient evidence to send this case for a fresh trial. With regardto this matter the proviso to section 334 (2) of the Code of CriminalProcedure Act provides as follows:
. . . "Provided that the Court of Appeal may order a new trialif it is of opinion that there was evidence before the jury uponwhich the accused might reasonably have been convicted but forthe irregularity upon which the appeal was allowed.”. . .
Even though this proviso refers to cases of trial by jury, it wassubmitted by learned counsel that the same principle would apply tocases before a Judge without a jury as well. It should be mentionedhere that, even though the proviso refers to the jury and not the Judge,it is reasonable and proper to assume that the intention of thelegislature must necessarily be the same, whether it be a trial beforea jury or Judge sitting alone. The deciding factor being that thereshould be evidence upon which the accused might reasonably havebeen convicted. This reasoning finds support, when one examines theproviso to section 350 (2) of the Administration of Justice Law, No.44 of 1973, which is similar to section 334 (2) of the Code of CriminalProcedure Act, where reference is made to the jury and the Judge.The said proviso of the Administration of Justice Law provides asfollows:
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Moses v. State (Hector Yapa, J.)
405
. . Provided that the Court may order a new trial if it is ofopinion that there was evidence before the jury or the Judges, asthe case may be, upon which the accused might reasonably havebeen convicted but for the irregularity upon which the appeal wasallowed." . . .
In this case, therefore, learned counsel contended that, for theCourt to order a new trial, there must be evidence before the trialCourt upon which the accused-appellant might reasonably have beenconvicted, but for the irregularity upon which the appeal was allowed.Counsel argued that in the present case there was no such evidence.It is to be observed that the two alleged eye-witnesses have beentreated adverse. The third witness Panditha, did not give evidencerelating to the incident where the deceased came by his death, butspoke to matters after the death of the deceased. In the circumstances,there was no evidence before the trial Court, on the question as towhether it was the accused-appellant who caused the death of thedeceased, if the evidence given by the witnesses Gunapala andAriyawathie is disregarded. In regard to this matter learned counselcited authorities to support the proposition that, when a witness istreated adverse, there is no value in the evidence given by such awitness, and therefore the prosecution could not make use of suchevidence to support the conviction. In the case of the King v. Fernanddz)it was observed that the fact that a witness is treated as adverseand is cross-examined as to credit does not warrant a direction tothe jury that they are bound in law to place no reliance on his evidence.It is for the jury to examine the whole of the evidence of such a witnessso far as it affects both parties favourably or unfavourably for what,in their opinion, it is worth. However, more recently the view has beenexpressed that such evidence has no value and cannot berelied upon by either party. This principle was followed in the caseof Dahanayake v. Kannangara{3); Queen v. Abilinu Fernanda. In theIndian Supreme Court case of Keshoram Bora v. The State of AssaniS)it was observed that "While it is true that merely because a witnessis declared hostile his evidence cannot be rejected on that groundalone, it is equally well-settled that when once a prosecution witnessis declared hostile the prosecution clearly exhibits its intention not torely on the evidence of such a witness and, hence his version cannotbe treated as the version of the prosecution, itself".
406
Sri Lanka Law Reports
11999] 3 Sri L.R.
Therefore, since witnesses Gunapala and Ariyawathie were treatedadverse, there is not even an iota of evidence to support the convictionagainst the accused-appellant. In our view the learned High CourtJudge should have acquitted the accused-appellant without evencalling for a defence, for want of evidence to establish the chargeagainst him. In addition as observed earlier the learned High CourtJudge had failed to comply with section 203 of the Code of CriminalProcedure Act, by not giving his reasons for the conviction. The failureof the trial Judge to give reasons for the conviction may have beendue to the fact that the learned Judge had none to give in order tojustify the conviction of the accused-appellant. If the learned High CourtJudge.was mindful of section 203 of the Code of Criminal ProcedureAct and complied with it, he could not have come to any otherconclusion other than to acquit the accused-appellant. It is highlyregrettable that the learned High Court Judge failed to take cognizanceof this vital provision of law, and thereby caused the accused-appellantto languish in jail.
Learned senior State counsel very fairly and correctly concededthat he was not supporting the conviction in this case. He furthersubmitted that there is no justification to order a new trial due to thelack of evidence against the accused-appellant.
In these circumstances, we set aside the conviction and thesentence of death passed on the accused-appellant and acquit him.Appeal is allowed.
KULATILEKA, J. – I agree.
Appeal allowed.