122-NLR-NLR-V-74-PERIYAMBALAM-et-al.-Appellants-and-THE-QUEEN-Respondent.pdf
SIV A SUPR A MAX IAM, J.—Peritjambalam v. The Queen
S IS
[Court of Criminal Appeal]
1970 Present: Siva Supramaniam, J. (President), Samerawickraroe, J.,
and Tennekoon, J.
PERIYAMBALAM el al., Appellants, and THE QUEEN, RespondentC. C. A. 111-115/69, with Applications 155-159. S. C. 172jOS—M. C. Kandy, 5S275
Trial before Supreme Court—Deposition of a witness before Magistrate—Its invalidityas substantive evidence—Summing-up—Aspects of the evidence discreditingthe case for the prosecution—Duly of Judge to direct Jury's attention to them—Allocutus—Its evidential value—Criminal Procedure Code, s. 305.
Where, at a trial before tho Supremo Court, the evidence given Dy a ■witnessis inconsistent with his deposition before the Magistrate, it would bo a non-direction amounting to a misdirection in law if tho trial Judge fails to directtho Jury that they should not treat ns substnntivo or corroborative evidencothe deposition mndo by tho witness before the Magistrate.
It is the duty of the trial Judge, in the courso of his summing-up, to draw theattention of tho Jury specifically to important aspects of the evidenco whichtend to discredit the case presented by tho prosecution.
An admission mado by an accused person in answer to the allocutus undersection 305 of tho Criminal Procedure Code is port of the evidence in the case,and tho Court of Criminal Appeal cannot ignore tho effect of such admission.
Appeals
against five convictions at a trial before the Supreme Court.
Colvin R. de Silva, with I. S. de Silva, C. Sandrasagara and (assigned)
Gancsh, for the accused-appellants.
Ian Wikrainanayahe, Crown Counsel, with Sunil de Silva, CrownCounsel, for the Crown.
Cur. adv. vv.lt.
March 2, 1970. SrvA Supramaniam, J.—
Tho appellants were convicted of the offence of murder by an unanimousverdict of the jury and were sentenced to death.
The facts, as disclosed in the evidence, were briefty as follows :— Thedeceased as well as the appellants were labourers on Loolkandura Group,Deltota. Originally all the labourers on the said estate were membersof the Ceylon Workers' Congress but sometime prior to the incident inquestion the appellants and some others had broken away and joineda rival labour union. There had been some disagreement in regard tothe management of a temple as well and it was arranged that both partiesshould manage it during alternate periods. On 1st April 1968 a meetingof the temple Committee of the C.W.C. group to which tho deceased
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SIVA STJPR.AMANIAM, J.—Periycimbalom v. The Queen
belonged was fixed for 6.30 p.m. The deceased was the deputy Thalaivaron the estate of the C.W.O. group and was on his wray to themeeting of the Committee when he came by his death at tho hands ofhis assailants.
In regard to the identity of the assailants, the prosecution reliedprincipally on the evidence of two witnesses—Sivapackiam, a girl thenabout 17 or 18 years of age, and Subramaniam, another labourer.Sivapackiam and her parents as well as Subramaniam were members ofthe C-W.C. group. According to Sivapackiam, when she was on herway to a water spout at about 6 or 6.30 p.m. she saw the 1st appellantstanding on a rock on a side of the estate road. When she was at thewater spout she heard the sound of someone whistling with his mouthfrom the direction where the 1st appellant was. Immediately thereaftershe saw the deceased man coming along the road. The 1st appellantthen went in the direction of the line room occupied by the 4th and 5tliappellants. Then the 2nd, 3rd, 4th and 5th appellants came on thoscene. The 3rd, 4th and 5th appellants held the deceased and the 3rdappellant assaulted him. Then the 2nd appellant assaulted him withan iron rod on the top of the head. At the same time the 1st appellantassaulted him with an axe from behind and that blow too alighted onthe crown of the head. At that stage she ran away from the scene.
It was proved, however, that when she gave evidence before the magistrate■at the scene the next day she had stated : " All I saw is the 1st, 3rd and4tli accused holding Muttiah and the 2nd accused Perumal hit him onthe head with an iron rod She made no mention of the 1st appellanthaving assaulted with an axe or of the 3rd appellant having assaultedwith a club. Tho learned trial judge indicated very clearly to the juryhis own view that this witness’s testimony in regard to the assault ontho deceased was unworthy of credit.
Exception was however taken by the counsel for the appellants tothe following passage in the learned judge’s charge with reference to thoquestion of the assault :—
" You may be able to look at it this way, that she spoke the truthup to a point, that what she said to the magistrate is all that she sawand that subsequently she has in some way been influenced to add tothe story perhaps on knowing that there were other injuries on Muttiah,perhaps because of talks on the estate. You may he able to saythat although this part of her evidence is untrue, nevertheless we dobelieve beyond any doubt one part of it, namely, that while three orfour persons were holding Muttiah, preventing him from moving,then at that stage, as she has said to the magistrate, the secondaccused hit Muttiah on the head with an iron bar or something ofthat kind. ”
The complaint of appellant’s counsel was that the learned trial judgefailed to give a clear direction to the jury at any stage of his chargethat the evidence given by a witness before the magistrate should not be
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acted upon as substantive evidence at the trial and in the absence ofsuch a direction, the latter part of the aforesaid passage would havegiven the impression to the jury that they could act on such evidence.
According to Subramaniam, when he was returning from bis vegetableenclosure that evening, he saw the five appellants getting out of the lineroom of the 4th appellant. When he passed them he saw them havingweapons in their hands. He did not however specify what the weaponswere. He had earlier seen the deceased on the road. After he reachedJiis line room he heard a cry “ They are cutting and killing MuttialiThalaivar ” and he ran back and saw the five appellants assaulting thedeceased who was 13'ing fallen on the ground. He did not see the weaponsat the time of the assault. He also stated that he could not speak to anyparticular act done by any of the appellants.
It was proved, however, that this witness gave a different version tothe magistrate when he testified at the scene. His evidence there wasas follows:—
“At about the same time I saw the deceased coming from the oppositedirection followed by the 1st accused Perambalam. I did not see anyweapons in the hands of the first accused or with the others. Atonce I heard the cries of the last witness Sivapackiam. She wasshouting saying “ Amaie alarum adikarangalai I then turned andrushed back and I saw the first accused cutting the deceased with anaxe. I saw the 2nd accused assaulting with the crowbar and the otherthree accused assaulted the deceased with clubs .”
With reference to the evidence of this witness, the learned trial judgestated :—
“ With regard to him also the Defence has relied on his originalversion. To the magistrate he said that he did not see weapons whenhe saw these five men, but that he saw some weapons being used whenthe assault took place. Ask jmurselves whether that is a serious contra-diction, or whether after IS months it is purely a mistake and thatwhen he says today that he saw weapons on the first occasion he wasreally assuming that because he saw them assaulting they must havehad weapons earlier.
Learned counsel for the appellant complained that in respect of thetestimony of this witness too, in the absence of a specific directionthat the evidence given before the magistrate should not be acted uponas substantive evidence the jury may have relied upon the passagequoted above as substantive evidence which corroborated the evidenceof Sivapackiam that the 1st appellant cut the deceased with an axe andthe 2nd appellant assaulted him on the head with an iron rod.
The failure of the learned trial judge to direct the jury that they shouldnot treat as substantive evidence the deposition of any witness beforethe magistrate was, in our opinion, a non-direction which amounted toa misdirection in law. In consequence of this non-direction the jury may
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SIVA SUPRAMANIAM, J.—Periyambalam v. The Queen
well have decided to accept and to act on the evidence of Sivapackiamon the footing that her evidence found corroboration in the evidencegiven by Subramaniam before the magistrate shortly after the incident.If they did so, they would not have given due weight to the learned judge’sstrong criticism of Sivapackiam’s evidence. The acceptance of Siva-packiam’s evidence would also have probably resulted in the jury treatingas immaterial the differences in the versions of the incident inSubramaniam’s testimony before the magistrate and at the trial.
Learned counsel for the appellant also urged that the attention of thejury should have been pointedly drawn to the following matters, which, hesubmitted, would have cast grave doubts on the truth of the case presentedby the prosecution.
According to the medical evidence, the deceased had only two externainjuries, namely, a longitudinal incised wound on the vertex of the scalpand a vertical incised wound on the left side of the neck. The doctorstated that both injuries could have been inflicted with a heavy sharpcutting weapon like the axe head P6. The deceased did not have asingle injury consistent with an assault with a ci’owbar or an iron rod orwith a club. The medical evidence, therefore, negatived the testimonyof Sivapackiam that she saw the 3rd appellant assaulting the deceasedwith a club and the 2nd appellant with an iron rod. It also negatived thetestimony of Subramaniam that he saw all five appellants assaulting thedeceased man with weapons which he could not identify. There was,however, no reference to this aspect of the medical evidence in thelearned trial judge’s summing up.
According to Subramaniam, when lie went to the spot after the deceasedman had been killed and the appellants had run away therefrom, he didnot see any weapons at the scene near the body of the deceased. But,according to Sub-Inspector of Police, Jfuhajarecn, when he arrived at thescene at 10.15 p.m. he found at the spot 2 pieces of clubs, an iron rodwith one end bent, a piece of wooden bedding and a pruning knife. Therewas no blood stain on any of them. It is a reasonable inference that these“weapons” five in number, had been introduced at the scene by someinterested party, before the arrival of the Police. If, therefore, therewas some party engaged in fabricating evidence by introducing “ weapons ”at the scene, the strong possibility of such party fabricating oral testimonytoo cannot be overlooked. This aspect of the case was also not dealt withby the learned trial judge in his charge.
While there is no duty cast on a trial judge to refer to every detail inthe evidence in the course of his summing-up, it is essential that the atten-tion of the jury should be specifically drawn to important aspects of theevidence winch tend to discredit the case presented by the prosecution.
In the instant case, a specific reference to the matters referred to abovemay well have resulted in the jury entertaining grave doubts as to thetruth of the testimony of both Sivapackiam and Subramaniam. Havingregard to the foregoing matters we are of opinion that upon the material
SIVA SUPB AM AX I AM, J.—Pcriyambalam v. The Queen
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available the verdict of the jury was unreasonable and the convictions ofall the appellants on a charge of murder on the basis of their havingacted in concert in furtherance of a common murderous intentioncannot stand.
The case of the 1st appellant, however, stands on a different footingfrom that of the rest. The evidence of Sivapackiam was that the wholeincident commenced with a whistling sound being heard from the directionwhere the 1st appellant was. There was no one else present near him atthat time and it is a reasonable inference, therefore, that it was he whowhistled. That part of the evidence of Sivapackiam was not contradictedby any evidence previously given by her before the magistrate and it isapparent from the verdict of the jury that they accepted it. Afterwhistling, the 1st appellant went in the direction of the line room occupiedby the 4th appellant. According to Sivapackiam, he reappeared on thescene with an axe and assaulted the deceased with an axe. Accordingto the medical evidence, both the injuries which were found on thedeceased could have been inflicted with an axe like P6. Sivapackiam’sevidence that the 1st appellant assaulted the deceased with an axe was,of course, contradicted by her own evidence before the magistrate. Buttlie 1st appellant, in answer to theallocutus at the conclusion of the trialstated as follows : “ I state that I committed culpable homicide notamounting to murder ”. Whatever may be the history of the origin ofthe allocutus at criminal trials, we are satisfied in tin's case that thestatement of the 1st appellant was an unequivocal and unqualifiedadmission to the Court that the injuries on the deceased which resultedin his death were inflicted by him. It was submit ted by learned counselfor the appellants that the statement made by the 1st appellant is notpart of the evidence in the case and this Court will not therefore hejustified in acting upon it. We are unable to agree.
In the case of Martin Appu v.Tlie King1 (52N.L.R. 119) it was held that(he Court of Criminal Appeal may take into consideration statementsmade by the appellant in his notice of appeal although such statementsrefer to matters outside the evidence given at the trial. In consideringthe 1st appellant’s appeal, therefore, this Court cannot ignore the effectof the aforesaid admission. Having regard to all the circumstances,however, we are of opinion that the conviction of murder of the 1stappellant should he set aside and a conviction of culpable homicide notamounting to murder be substituted for it and we accordingly do so.
For the reasons already set out we allow the appeal and quash theconvictions of the 2nd, 3rd, 4th and 6th appellants and acquit them. Wesentence the 1st appellant to 15 years’ rigorous imprisonment.
Verdict altered in regard, to 1st appellant.
Appeals of 2nd, 3rd, 4th and 5th appellants allowed.
1 {1950) 52 N. L. It. 119.