HOWARD CJ.—Police Sergeant Kulatunga v. MudaUhamy.
1940Present: Howard C.J.
POLICE SERGEANT KULATUNGA v. MUDALIHAMY et al:477—484—M. C. Gampola, 19,271.
Unlawful assembly—Elements of charge—Police Sergeant a material witness—Impropriety of acting as prosecutor—Penal Code, s. 140.
In a charge of unlawful assembly under section 140 of the Penal Codeit must be established that each accused knew the common object of theassembly and that he was a member of the assembly which he inten-tionally joined.
It is improper for a Police Sergeant, who is a material witness for theprosecution to conduct the prosecution.
^I^PPEAL from a conviction by the Magistrate of Gampola.
A. Rajapakse (with him Percy de Silva), for the accused, appellants.
S.J. C. Schokman, Crown Counsel, for the complainant, respondent.
Cur. adv. vult.
September 6, 1940. Howabd C.J.—
This is an appeal from the conviction of the appellants by the Magistrateof Gampola of the following charges : —
Forming members of an unlawful assembly with the common
object of causing hurt to one P. G. Gunasekera and Mallinahamyand causing damage to their house and thereby committing anoffence punishable under section 140 of the Penal Code.
Being members of an unlawful assembly with the common object
of causing hurt to the said P. G. Gunasekera and Mallinahamyand causing damage to their house did cause hurt to the saidP. G. Gunasekera by assaulting him with hands and Mallina-hamy with flail and damage to the house of P.> G. Gunasekeraand Mallinahamy by pelting stones in prosecution of theircommon object and thereby commiting an offence punishable
under section 144 of the Penal Code.
■ 21 N. L. B. 97.
2J. H. B 17828 (5/52)
(1940) 11 AT. L. B. 193.
HOWARD C.J.—Police Sergeant Kulatunga v. Mudalihamy.
The case for the prosecution was based on the evidence of thecomplainants, P. G. Gunasekera and Mallinahamy, with the corroboratingtestimony of It. G. Somapala, Kiri Banda, and Dingiri Banda the Arachchiof Dunukeulla. At 7 p.m. on the day in question the 2nd accused madea complaint to the Arachchi that P. G. Gunasekera and one Mudiyansehad committed robbery of Rs. 4 due to him. He proceeded to the houseof Gunasekera and asked him-to come to the Police Station. He' sawthere, in addition to Gunasekera, Mallinahamy, Somapala and KiriBanda. He states that whilst he was in the compound, twenty-fivepeople came there, four of whom, namely, the 1st, 2nd, 4th, and 6th accusedentered the house. The 1st accused had a flail and the 2nd a katty.The evidence of Gunasekera and Mallinahamy was to the effect thatabout 2 p.m. the 2nd accused came to his house and abused them. Thisabuse was returned by Gunasekera and continued between 2 p.m. and6 P.M. About 7.15 p.m. the Arachchi arrived and wanted Gunasekerato go to the Police Station on a complaint by the 2nd accused. LaterGunasekera saw the 1st accused in the hall with a flail, and according toMallinahamy the 1st5 accused struck her a blow on the hip. Then 1st,2nd, 3rd, 4th, 6th, 7th, and 8th accused entered the house. The 2ndaccused had a katty, whilst 3rd accused had a club. Gunasekerasays he was assaulted with hands and dragged outside about 30 yardsafter a struggle. Mallinahamy testifies as to this and states that shesaw the 2nd accused deal a blow at Gunasekera, whilst the 4th, 6th, and8th accused struck him with their hands. Gunesekera says he got freeand ran back and locked the door of the house. The 3rd, 5th, 6th, and7th accused then pelted the house with stones, the 1st, 2nd, 4th, and 8thaccused being also there with others who took no part. The doors,windows and flower pots were damaged. After accused left a katty,flail, club, a sarong belonging to the 4th accused and towel belongingto the 1st accused were found in the house. Somapala corroborates theevidence of Gunesekera and Mallinahamy. Kiri Banda was also therebut is only able to testify to the entry of the 1st accused into the houseand to his striking Mallinahamy with a flail.
In his judgment the learned Magistrate seems to have applied his mindfirst of all to an examination of the main feature of the defence that thecase was a false one engineered by the Arachchi and the Sergeant.Having rejected this part of the defence, the Magistrate accepts theevidence led for the prosecution and Jheir version of the incident. No-where in the judgment are the charges against the accused examinedin the light of. the evidence with the view of discovering whether theingredients of those charges have been established beyond all reasonabledoubt. Both charges involved the proof of an unlawful assembly.It had, therefore, to be proved by the prosecution that there was anunlawful assembly with a common object as stated in the charges. Sofar as each individual accused was concerned it had to be proved thathe Was a member of the unlawful assembly which he intentionally joined.Also that he knew of the common object of the assembly. The Magistratedoes not in his judgment seem to have applied his mind to the elucidationof these aspects of the .case which were vital so far as the conviction of theaccused on such charges was concerned. If these features of the case
HOWARD C.J.—Police Sergeant Kulatunga o. Mudalihamy.
hiad been analysed, I am of opinion that the Magistrate would havearrived at a different conclusion. In cases of unlawful assembly a rioteris made liable for the act of his confederate. But before that liabilitycan be imposed it must be proved that the person was a member of theassembly, that the offence was committed in prosecution of the commonobject or must be such as the members knew to be likely. In this casethe evidence establishes that Gunasekera and the 2nd accused spent theafternoon abusing each other, that subsequently the Arachchi arrivedto assist the former, that the 1st accused came into Gunasekera’s houseand hit Malliriahamy with a flail, and that some of the other accusedalso came into the house and assaulted Gunasekera. It has also been-proved that the 1st accused was in hospital for 22 days suffering from4 stab wounds and one caused by a blunt instrument. Two of theseinjuries were grievous. Although Gunasekera alleges that he wasassaulted and dragged along the ground by several of the accused, thereis no evidence of his having received any injuries. The story of theprosecution witnesses regarded from its most favourable aspect does notto my mind establish an unlawful assembly with that degree of certaintyrequired by the law. Viewing the case as a whole the verdict can onlybe regarded as unreasonable and against the weight of evidence. Inthese circumstances the appeal must be allowed and the convictionsof all the appellants on both counts set aside.
There is another aspect of the case to which my attention has beendirected in the course of the hearing of this appeal. The case for theprosecution in the Magistrate’s Court was conducted by SergeantKulatunga. At an early stage in. the proceedings Mr. G. E. de Silvawho appeared for the accused stated that his position is that this case isa conspiracy by the prosecuting Sergeant Kulatunga and the Arachchiagainst these accused and the Sergeant should not conduct the trial.Mr. de Silva also stated that his client has submitted a petition againstthe Sergeant. The Sergeant challenged this statement. The learnedMagistrate made the following order : —
“ It is not uncommon for the prosecuting Sergeant or Inspectorto give evidence. The Sergeant will proceed to conduct the trial. ”
The Sergeant subsequently gave evidence for the prosecution. He wasnot merely a formal witness. His examination in chief occupies two anda half pages of the record and his cross-examination another two and ahalf pages. In' cross-examination he admitted that the 2nd accusedhad sent a petition against him. The question of allowing a policemanto act as an advocate before a tribunal has been considered in severalEnglish cases. In Webb v. Catchlove1 Mr. Justice' Hawkins said thathe thought it a very bad practice to allow a policeman to act as anadvocate^before any tribunal, so that he would have to bring forwardonly such evidence as he might think fit and keep back any that hemight think likely to tell in favour of any person placed upon his trial.Webb v. Catchlove was referred to in the judgment of Lord Coleridge C.J.in Duncan v. Toms: in the following terms ::—
“In the general observations made in Webb v. Catchlove I shouldentirely concur. I agree that it is a bad practice for a policeman, being1 3T.L. ft. 150.2 IS Cox 267.
36 HOWARD C.J.—Dankoluwa Tea Estates, Ltd. v. The Tea Controller.
a general officer of the law, and one who ought to stand indifferentbetween the parties to appear and act as an advocate in Courts ofJustice. I entirely agree and I entirely concur in the observationsmade in that case against such a practice. ”
The objection taken by the Judges in these two cases to policemenconducting the case for the prosecution was based on the ground thattheir position would not allow them to act impartially. The remarksof the Judges apply with even greater force in this case where the prose-cuting Sergeant gave evidence that was not of a purely formal characterand against whom allegations of bias and partiality were made that wentso far as to accuse him of having taken part in fabricating the caseagainst the accused. How could such a person be expected to holdthe scales evenly and to stand indifferent between the rival parties ?The conduct of the prosecution by Sergeant Kulatunga indicated thatthe .maxim that “ Justice should not only be done but be manifestlyand undoubtedly seen to be done ” had been completely ignored in regardto this aspect of the case.
POLICE SERGEANT KULATUNGA v. MUDALIHAMY et al