006-NLR-NLR-V-77-S.-P.-G.-STANLEY-DIAS-Appellant-and-THE-QUEEN-Respondent.pdf
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Dias v. The Queen
[Court of Criminal Appeal]
Present: H. N. G. Fernando, C.J. (President), Silva, S.P.J.,and Samerawickrame, J.
S. P. G. STANLEY DIAS, Appellant, and THE QUEEN,Respondent
S. C. 382/68—M. C. Gampaha, 19490/A
Criminal Procedure Code—Section 121—Information Book—Statements recordedtherein—Scope of their admissibility in evidence—Evidence Ordinance, s. 157,Where a first information recorded by a police officer in the InformationBook related to an alleged assault but also contained the following last note :—“When I (the police officer) first questioned him (the informant) he told methat he was shot by Kalumahathaya of Walgammulla”—
Held, that the record of the allegation about the shooting was not made incompliance with section 121 of the Criminal Procedure Code and the allegationwas therefore not a part of the first information.
H. N. Q. FERNANDO, C.J.—Dias v. The Queen
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B eld further, that even if it was permissible under section 157 of the EvidenceOrdinance to admit as evidence the informant’s oral statement about theshooting, it was necessary for the police officer to give evidence that the oralstatement was actually made. A first information is as much hearsay as anyother statement made outside a Court.
-A.PPE.AL against a conviction at a trial before the Supreme Court.
E. R. S. R. Coomaraswamy, with C. Chakradaran, T. Joganathan,S. C. B. Walgampaya, P. H. Kurukulasooriya and M. Nassim (assigned),for the accused-appellant.
J. R. M. Perera, Senior Crown Counsel, for the Crown.
Cur. adv. vuU.
November 24, 1970. H. N. G. Fernando, C.J.—
The appellant in this case was convicted on a charge of the attemptedmurder, by shooting, of one Karunaratne. There is no doubt thatKarunaratne received gun shot injuries on the day of the incident, andthat whoever fired at him could properly have been convicted of attemptedmurder. The gist of Karunaratne’s evidence as to the incident in thecourse of which he received gun-shot injuries is stated in the summing-upof the learned trial Judge as follows :—
“ Now, the evidence of Karunaratne is that on this day in questionat about 6 or 6.30 in the evening—the time is rather material in viewof the defence that has been taken up on behalf of the accused—he was in the house of school master Manchanayake, when he heardthis accused shouting on the road. The accused is supposed tohave asked, “ kavuda yako ” and Karunaratne’s father happendto be there—he was returning after tethering a cow in the gardenbeyond Manchanayake’s house. Karunaratne’s father answered,“ it is I ”, and then there was an assault. Karunaratne says thatthe accused assaulted his father. Karunaratne went there and releasedhim. There was no assault as such to leave any injury or mark andas Karunaratne was taking his father away, the accused said,“ I will do something to you ” or words to that effect. Karunaratnesays that he was leading his father, fifty-five years of age. He wasgoing to their house and the accused’s house was in the oppositedirection, when the accused is supposed to have overtaken Karunaratneand his father, and went to the house. And the evidence is thatat a certain stage they lost sight of the accused. Then you will findthe evidence of Karunaratne when he says that at a certain point,when he was walking bn the road the accused was with another mancalled Ariyapala and that other man aimed a stone which st;uckKarunaratne. At the time Karunaratne was not holding the fattier.He had released the hold on his father and he was walking, when
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H. N. G. FERNANDO, C.J. —Dias v. The Queen
the stone struck Karunaratne. He hurried, or more or less, rantowards his house, and apparently he heard this accused say, “ takethis also ”, and when he heard the accused say that, he turned back,and at a distance which he indicated to you, hundred feet or thirty-three yards, the accused was behind, at this distance of thirty threeyards, aiming a gun and as Karunaratne turned, which is natural,more or less turning to run away, a shot was fired and the shot struckhis back
Karunaratne made a statement at the Kirindiwela Police Station thesame night; the statement as recorded refers briefly to an alleged assaultby the accused on Karunaratne’s father, but contains nothing aboutany shooting incident. Apparently Karunaratne fainted very soon afterhe commenced to make his statement at the Police Station. TheConstable who recorded the statement at that stage made some notesin the Information Book, the last note being “ when I first questionedhim he told me that he was shot by Kalumahathaya of Walgammulla.”In the summing-up, the learned trial Judge directed the Jury that in hisstatement at the Police Station “ Karunaratne has stated almost exactlywhat he has told you in the witness box.” This direction was incorrectin more than one respect.
Far from relating in his statement the version of the shooting givenat the trial, which takes up some twenty lines of the Judge’s own summary,Karunaratne (as already pointed out) said nothing at all about theshooting in his recorded statement. No doubt, according to the Constable’snote, Karunaratne hadat first told the Constable orally that Kalumahathayashot him. But no record of this allegation was made in compliancewith s. 121 of the Criminal Procedure Code, and the allegation wastherefore not a part of the first information.
Moreover, Karunaratne throughout his evidence at the trial referredto this accused by the name Senadeera. Nowhere in any prosecutionevidence, was it proved that thisaccused was known as “Kalumahathaya”.The only reference to this alias is in the brief recorded statement at thePolice Station that “ Senadeera alias Kalumahathaya ” had assaultedKanmaratne’s father. But the contents of that statement were admissibleunder s. 157 of the Evidence Ordinance only as corroboration of testimonyat the trial. In the absence of any such testimony as to the fact thatthe accused has the alias Kalumahathaya, the reference in thestatement to Senadeera alias Kalumahathaya was not admissible inprocf of that fact.
Tiirdly, although the trial Judge directed the Jury that Karunaratnetold the Police that it was this accused who shot, there was not at thetrial any evidence from anybody that Karunaratne made such a statementto the Police. The direction on this point which the trial Judge gave tothe Jury was based purely on his reading of the Constable’s note whichwas attached to the extract from the Information Book and wa3 availableto the Judge and Counsel.
H. N. G. FERNANDO, C.J.—Dias v. The Queen
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What happened at the trial was that when the Constable was calledto prove Karunaratne’s statement, it was noticed that there was someerror in the English translation of the statement which the Constablehad prepared. Because the Judge was much concerned to reprimandthe Constable at that stage, everybody seems to have overlooked thefact that, even if it was permissible to admit as evidence Karunaratne’salleged oral statement that Kalumahathaya had fired at him, it wasnecessary for the Constable to give evidence that the oral statementwas actually made.
In the result, the Jury was informed in the summing-up of an allegedoral statement which had not in fact been proved at the trial. Therewas thus misdirection both of law and of fact in informing the Jury ofthis alleged oral statement.
We think it necessary in passing to refer to the misconception thatanything which a witness may have stated in a first information is per seadmissible at a trial. A first information is as much hearsay as any otherstatement made outside a Court, and its contents may only be provedat a trial if such proof is permissible under one or other of the provisionsof the Evidence Ordinance which are exceptions to the rule againsthearsay. In the present context, s. 157 is such a provision ; but as wehave shown, the former oral statement was not in fact proved in thiscase, because the Constable gave no evidence concerning the statement.
Karunaratne’s version of the incidents which preceded the allegedshooting referred to some persons being in the garden of one Sederis, andto a stone having been thrown by one Axiyapala from that garden,before a gun was fired. The defence called Sederis as a witness. Accordingto Sederis he had been in his garden when he noticed an altercationon the road between Ariyapala and Karunaratne, and at this time therewere also other people on the road. Sederis then called Ariyapala away,and at that stage Sederis heard a gun shot. According to him it wasdark at that time and he did not see the accused anywhere there.
The learned trial Judge obviously formed a very unfavourable impressionof the witness Sederis, in regard to whom he made rather scathingobservations in the summing-up. Unfortunately, the final observationregarding Sederis was : “ taking his evidence at its highest, you will askyourselves on that evidence, can you say that the accused was not thereand did not shoot.”
We agree with the complaint of Counsel for the accused that the trialJudge here placed on the defence the burden of proving as a fact thatthe accused did not shoot. When a witness gives evidence indicatingthe possibility that some unknown person may have committed the actcharged and the possibility that the accused was not present at thescene, the proper direction in our opinion is whether, at the lowest, thatevidence casts any reasonable doubt on the prosecution case that theaccused did indeed commit the act.
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H. N. G. FERNANDO, C.J.—Dias v. The Queen
On Karunaratne’s own evidence, the accused overtook him on the roadshortly before Ariyapala threw a stone at him. He saw the accusedagain standing by the side of Ariyapala at the stage when the stone wasthrown. Karunaratne then started to run away, whereupon a gun wasfired, and according to him he turned back and saw this accused aimingthe gun. On this version, the accused had no gun with him, either whenhe overtook Karunaratne on the road, or when he was seen standingby the side of Ariyapala. There is thus much room for doubt whetherin the brief moments which elapsed between the aiming of the stoneby Ariyapala and the firing of the gun at Karunaratne who was thenrunning away, the accused could have got possession of a gun. Hecertainly had no opportunity of getting a gun from his home, which wasnowhere near the scene of the stone-throwing and of the shooting.
The conviction in our opinion was vitiated by the misdirections to whichwe have referred, and we have no reason to think that a Jury properlydirected would in all probability have convicted him. We thereforeset aside the verdict and sentence, and direct a verdict of acquittal to beentered.
Accused acquitted.