033-SLLR-SLLR-2006-V-3-REV-.-MAHARAGAMA-SUNEETHA-vs.-ATTORNEY-GENERAL.pdf
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REV. MAHARAGAMA SUNEETHAVS.ATTORNEY GENERALCOURT OF APPEAL.
IMAM, J.
RANJITH SILVA J.
CA 180/1999HCHAMBANTOTA 77/99.
SEPTEMBER 21,2005.
Penal Code- sections 365 (B) 1(a), 365 B 2(b), 365 B(a) a- section 365(1)(b) -Accused appellant absconding-Criminal Procedure Code section325(2) – Applicability – Proof of a former inconsistent statement? – Purequestion of fact – Could an appellate Court interfere?- Perverse judgment?
The appellant was indicted under section 365 (B) 1 (a) and Section 365B (a) (a), and after trial he was found guilty and convicted. He appealedand during the pendency of the appeal escaped from prison and an openwarrant was issued for his arrest.
Acting in terms of Section 325(2) the Court of Appeal considered theappeal.
The contention of the appellant in the petition of appeal is that –
a particular piece of evidence which the appellant claims to be acontradiction, significant and quite material was disregarded bythe trial Judge.
That there was misdirection or non-direction amounting tomisdirection.
HELD:
(1) Before proof can be given of a former inconsistent statement andif the statement is in writing although it need not be shown to thewitness or be proved in the First instance, if it is intended tocontradict him by it, his attention must be drawn to those parts ofit to be used for contradicting him and he should also be affordedwith an opportunity to explain such contradictions.
CA
Rev. Maharagama Suneetha Vs. Attorney General
(RanJIth Silva, J.)
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This procedure has not been followed in this case. ThereforeCourt cannot take into cognizance the so called contradiction oromission at the stage of the appeal.
Even it there is material omission amounting to a contradiction inthe evidence of the witness, yet his evidence could be relied onand acted upon as there is expert medical evidence corroboratingthat part of his evidence.
A question of fact is a compendious expression comprising ofthree distinct issues. In the first place what are proved, in thesecond place, what are the proper inferences to be drawn fromthe facts which are either proved or admitted. In the third place -what witnesses are to be believed?
It is only on the last question that any special sancity attaches tothe decision of the trial Court. On the first two questions no specialsanctity attaches. By any special sanctity is meant thedisinclination on the part of the appellate body to correct ajudgment as being erroneous.
Per Ranjith Silva, J.
“It is seen that an appellate body can and should interfere even onquestions of facts although those findings cannot be branded as‘perverse’, unless the issue is one of credibility of witnesses'.
Appeal from the judgment of the High Court of Hambantota.
Cases referred to:
R vs. Seneviratne 38 NLR 208
R vs. Cooray – 28 NLR 74
R vs. Silva- 30 NLR 193 at 196
King vs. Don Samuel – 47 NLR 449
R vs. Julis – 65 NLR 505
Samaraweera vs. Attorney General – 1990 – 1 Sri LR 256 at 260
Bharwada Bhoginbhae Harijibhai vs. the State of Gujarat – AIR1983 (SC) 753 (1983 Cr. LJ 1096)
A. G. vs. D. Seneviratne – 1982 – 1 Sri LR 302
Wickramasooriya vs. Dedolina – 1996 2 Sri LR 95
Fraad vs. Brown & Co. Ltd. 20 NLR 282.
Accused absent and unrepresentedAchala Vengappuli SSC for State
2 -CM8435
Cur.adv.vult.
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March, 18th 2006.
RANJITH SILVA, J.When this matter came up for argument before this court on
the Accused Appellant (Appellant) was absent andunrepresented whilst Mr. Achala Vengappuli, Senior State Counsel,appeared for the Respondent and stated to court that he did not proposeto make any oral submissions and invited the Court to pass judgmenton the written submissions already tendered by him on behalf of theRespondent.
The Appellant was indicted in the High Court of Hambanthota by theAttorney General on the following counts:
That the accused did commit an offence under 365 B(-1) (a) ofthe Penal Code on Kankanamge Shelton Jayaweera between01-01-1998 and 31-10-1998, punishable under section 365B(2) (b) on the Penal Code.
That the accused did committ an offence under Section 365B(1) (a) of the Penal Code on Priya Sujith Ratnayake between01-01-1998 and 31-10-1998, punishable under section 365(1)(b)of the Penal Code.
After trial the appellant was found guilty and was convicted on bothcounts by the learned High Court judge and was sentenced to 20years rigorous imprisonment in respect of each count to runconsecutively. In addition to the term of imprisonment imposed, a fineof Rs. 10,000 was imposed on each count and a sum of Rs. 50,000was ordered as compensation to be paid to each of the victims.
Aggrieved by the said conviction, the sentence and the compensationordered against him the Appellant has now appealed to this court prayingthat the CSse be remitted for a re-trial and or for a reduction of theprison term imposed on him.
During the pendency of this Appeal the Appellant escaped from theprison, and an open warrant for his arrest, was issued by this court,which has not been executed so far, This explains the absence of theAppellant on the date fixed for argument. In the circumstances, this
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(Ranjith Silva, J.)
court is of the view that this court is empowered to act under section325(2) of the Criminal Procedure Code. This section empowers thiscourts to consider the appeal of the Appellant in his absence andmake an order as this court may deem fit.
Section 325(2), reads thus :
‘If the appellant does not appear to support his appeal thecourt shall consider the appeal and may make such order thereonas it may deem fit.’
The short point that heeds consideration of this court is whether aparticular piece of evidence which the appellant claims to be acontradiction, significant and quite material according to him, althoughat best it could be regarded as an omission, was disregarded or notconsidered by the learned trial judge, to the prejudice of the accused.The contention of the appellant is that witness Jayaweera, one of thecomplainants in this case who mentioned in his statement to the policethat the Appellant placed his penis between his legs, later in the courseof his evidence, at the trial held in court, shifted from his earlier position,by giving a differed versipn to the effect that the Appellant inserted hispenis into his anus. However, this position has not been put to thewitness at the trial and the witness has not been afforded an opportunityto explain his position. Therefore now it is too late in the day for theappellant to argue that the learned judge has failed to consider thisomission. What is more on a perusal of the evidence lead in the HighCourt it is evident that the defence did not bring this to the notice ofthe court either. Evidence of a former statement by a witness cannotbe given without previous cross examination. (Vide R vs.Seneviratney^. Before proof can be given of a former inconsistentstatement and if the statement is in writing although it need not beshown to the witness or be proved in the first instance, it it is intendedto contradict him by it, his attention must be drawn to those parts of itto be used for contradicting him and he should also be afforded withan opportunity to explain such contradictions. (See Se. 145(,))
This procedure has not been followed in this case. Therefore thiscourt cannot take cognizance of the so called contradiction or omissionat this stage of the case in determining this appeal. When a statement
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had been contradicted by an earlier statement which is not the casehere, the earlier statement does not become evidence of the fact statedtherein and the inconsistency is relevant only regarding the credibilityof the witness. The same principle applies to omissions as well. It cannever be substantive evidence. It could only be used to contradict orcorroborate the witness and using it otherwise would be a misdirection.(Vide. R. Vs. Coora/2) R Vs. Silva™ at 196 and King Vs. DonSamuel™).
Even if this Court were to assume arguendo that there is a materialomission amounting to a contradiction in the evidence of the witnessJayaweera, yet his evidence could be relied on and acted upon asthere is expert medical evidence corroborating that part of his evidence.The learned High Court judge has quite correctly considered theevidence of witness Jayaweera, in the light of the medical evidencewhich corroborated the evidence of the victim and proved the matterbeyond any doubt. (Vide R vs. Julisfs))
In Samaraweera Vs. The Attorney General™ at 260 P. R. P. Perera,
J observed as follows; I quote, “ I see absolutely no
contradiction in this medical evidence in the case, but I must observethat the medical evidence in the case strongly corroborates the evidenceof the two eye witnesses….”
The same has to be said in this case too. The medical expert evidencelead in this case is to the effect that injuries found in and around theanus of witness Jayaweera was due to the insertion of a penis in tothe ahus of the witness. This is strong corroboration of the evidence ofthe two eye witnesses in this case.
The Senior State Counsel has in his written submissions statedthat the statement made by witness Jayaweera, to the police, clearlyindicate, that what the police recorded was only a summarised versionof the witness. Be that as it may when a witness, unlike in a policestation, is being questioned in a court of law, where the counsel onboth sides who may be, inevitably well versed or at least familiar, inthe art of cross-examination, bore in-to the witness relentlessly, thewitness on the face of such onslaught has no alternative but to cringeand make a clean breast of every thing that happened.
CA
Rev. Maharagama Suneetha l/s. Attorney General
(Ranjith Silva, J.)
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On the other hand a witness of tender years, who had undergonesuch trauma both mental and physical, will be, due to embarrassmentand other similar considerations, hesitant to divulge all the intricatedetails of the sexual exploitation that took place especially the detailsthat would be most humiliating to the witness. nBharwada BhoginbhaiHarijibhai Vs. State of Gujarat Thakkar, J. observed “A girl or awoman in the traditional bound non-permissive society of India wouldbe extremely reluctant even to admit that any incident which is likelyto reflect on her chastity had ever occurred.”
In my view the same considerations should govern the case of asmall boy who is the victim of sexual exploitation even in Sri Lanka.
This brings to my mind, the recurring question, as to how far theCourt of Appeal could interfere with the findings of a trial judge on purequestions of fact in the absence of any material misdirection or non-direction amounting to misdirection on the law. Generally, it is not thefunction of an appellate court to re-try a case already tried, (vide.Attorney General Vs. D. Seneviratne)(8)
A question of fact is a compendious expression comprising of threedistinct issues. In the first place what facts are proved? in the secondplace, what are the proper inferences to be drawn from the facts whichare either proved or admitted? And in the last place what witnessesare to be believed? It is only in the last question any special sanctityattaches to the decision of a court of first instance. On the first twoquestions no special sanctity attaches. By any special sanctity ismeant the disinclination on the part of an appellate body to correct ajudgment as being erroneous. (Vide. Wickramasooriya Vs.Dedoleena(9)
I believe that it would be pertinent to refer to the dictum in thefollowing case namely, Fraad Vs. Brown & Co. Lfd.(10). What was heldin that case is that when the issue is mainly on the credibility ofwitnesses an appellate court should not interfere unless the findingsof the judge are perverse.
Therefore it is seen that an appellate court can and should interfereeven on questions of facts although those findings cannot be brandedas “perverse" unless the issue in one of credibility or witnesses.
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The learned High Court Judge has correctly viewed and analyzedthe evidence of the two main witnesses in the correct perspective. Hehas considered the credibility of the two witnesses in the back groundof their age and education before he reached his findings. The learnedJudge has ruled out the possibility of the witnesses having uttered anydeliberate falsehood.
The decision reached by the learned Trial Judge on the totality ofthe evidence does not contain any substantial misdirection or nondirection either on the facts or law. There is no reasonable basis, uponwhich, his decision could be interfered with.
. For the aforesaid reasons I find that there is no merit in this appeal,hence the same is hereby dismissed. The Registrar is directed toforward the main case record to the relevant High court for furtheraction.
IMAM, J. – / agree
Appeal dismissed.