085-NLR-NLR-V-74-S.-RATHINAM-Appelllant-and-THE-QUEEN-Respondent.pdf
Rathinam v. The Queen
317
{Court op Criminal Appeal]
Present: Siriroane, J. (President), Alles, J., and Weeramantry, J.S. RATHINAM, Appellant, and THE QUEEN, RespondentC. C. A. Appeal No. 15 of 1969, with Application No. 20. S.C. 25/66—M. O. Jaffna, 3J32S
Criminal Procedure Code—Section 122 (.3)—Procedure to be adopted in the use of theSection—Court's overall control over the notes of the Police investigation—Oral statements made to the Police during the investigation—Inadmissibility ascorroborative evidence.
Failure of accused to offer evidence—Adverse comment of Court thereon—Scope ofCourt's power to make such comment.
Evidence—Ballistics expert—IIis deposition in Magistrate's Court—Hearsay itemtherein—Inadmissibility of it as evidence at the trial.
Court of Criminal Appeal Ordinance {Cap. 7)—Subsections (1) and (2) of section 5—Scope of the provisos therein.
The accused-appellant was charged with the murder of a person byshooting him from a passing car in which tho accused was travelling. Whenthe Police Inspector who conducted tho police inquiries immediately after thecommission of the alleged offence was giving evidence at the trial, the prosecutingCounsel elicited from him the fact that when he reached the scene of the shootingtho chief prosecution witness K made oral statements to him inculpating theaccused, which resulted in instructions being given for tho arrest of the accused.In tho summing-up tho Jury wore invited indirectly by tho trial Judge to acceptthe evidence of IC because it was corroborated by tho statement which Kpromptly raado to tho Polico inculpating the accused.
Held, that tho effect of section 122 (3) of tho Criminal Procoduro Codo is torender tho use of an oral statement raado to a polico officer in the course of aPolico investigation just as obnoxious to it as tho use of tho same statementreduced into writing. Neither Counsel for tho defenco nor Counsel for thoprosecution nor even the Court is entitled to elicit, either directly or indirectly,material which would suggest to a jury that tho contents of a statement to thoPolico mado either orally or recorded in writing corroborates the ovidonc©given by n witness in Court. In tho present case therefore, thero was a seriousmisdirection to tho Jury when they were invited indirectly by tho trial Judgeto accept tho contents of K’s oral statements to the Polico as corroborationof to K’s testimony in Court.
’’ An analysis of Soction 122 (3) of tho Criminal Procedure Code would seemto indicate that —
(а)Tho statement can only be used for the limited purpose of proving
that a witness made a different statement at a different timo or torefresh the memory of the person recording it:
(б)Any criminal Court may send for the statements rocordod in a case
under inquiry or trial in such Court and may use such statementsor information not os evidence in tho case hut to aid it in suohinquiry or trial:
K 7334
*18ALLES, J-—llathinam v. The Quz.cn
Neither tho accused nor hia agents shall bo entitled to call for such
statements except as provided for in tho recent amendment totho Criminal rroceduro Code by Act No. 42 of 1961, nor shall heor they bo entitled to see them bccauso they are ttjerred to by thoCourt :
If tho statement is used by tho police officer or inquirer to refresh
his memory or if the Court uses them for tho purpose of contradicting6ueh police officer or inquirer tho statement will bo entitled to boshown to the adverse party and such party will be entitled to cross-examine the witness thereupon. "
Where, in a prosecution for murder by shooting, it is alleged by the Crownthat tho accused alone was the assailant, hut the defence suggests that theaccused or another could have fired the gun, then there is no obligation on theaccused to offer any evidence on tho point.
When a Ballistics expert is not a witness at the trial anti his depositionin tho Magistrate's Court is led in evidence as part of the case, an item of hearsayin tho deposition would be inadmissible ai evidence.
,(iv) Tho Court would not dismiss on appeal under the proviso to soction
5 (1) of the Court of Criminal Appeal Ordinnnco if it is impossible to say thaton the whole of tho facts and assuming n correct direction the Jury would,without a doubt, liavo found the accused guilty upon the evidence led.
(v) In tho history of tho Court of Criminal Appeal in Ceylon, the power of…tho Court to order a new trial under the proviso to section 5 (2) of the Court of
.Criminal Appeal Ordinance lias never been used to ordtr an accused person to
. bo tried on a third occasion.
AprEAL against a conviction at a trial before the Supreme Court-.
– G. E. Chilli/, Q. C., with E. R. 8. R. Coomaruswamy, Ma/io D era-say ayam,If. A. Mansoor and G. E. Chilly (Jnr.). for the aceuscd-apfelhmt.
'V. A. de 8. IVijesundent, Senior Crown Counsel, for thi?Crown.
Cur. ado. vult.
April 20, I960. Alles, J.—
The appellant was convicted by an unanimous verdict of the jury withhaving committed tho murder of a young lad called SubramaniamDeveudram on the Sth of November I9G5 at No. 35S Kankcsanturai Rond,JafFna.
• The entire case for the prosecution centred round the chief prosecutionwitness Kandiah Kulasingham. The suggested motive for the crimewas that the accused bore ill-will towards Kulasingham for a period of.two weeks prior to the offence; that he fired a shot at Kulasinghamand that the charge struck the deceased who was seated by theside of Kulasingham on the steps of No. 358, which was the Battery
-A-LLES, J.—Itathinam v. The Queen
319.
Service shop of Mahendran. The shooting is alleged to hare takenplace about 5.30 in the evening in Jaffna town, the shot having beenfired from a passing car in which the accused and his companions weretravelling along the Jaffna-K.K.S. Road.
Kulasingham stated in evidence that the accused and lie had beenfriends ; that tho accused was encouraging an affair between his brother-in-law Rasiah and a dancing girl called Rajaluxmi ; that he had foundfault with the accused for his conduct, and in consequence tho accusedwas offended with him. It also transpired in evidence that the accusedhad complained to the Police thatKulasingham had set fire to his boutique,which according to Kulasingham was a false complaint.
Kulasingham was in the habit of frequenting the battery shop wherethe deceased wa3 employed as a labourer. The manager of the shopwas Sharma. According to Kulasingham while he was seated on thosteps of the shop about one foot away from the deceased, he saw a cardriven by Subramaniam proceeding from the direction of Kankesanturaitowards Jaffna. One Shanmugam was seated inside the ear. About10 minutes later the car again came from the same direction travellingslowly about 15 m.p.h. and on this occasion the accused too was seated intho rear scat next to Shanmugam. The suggestion for the Crown wasthat on the first trip the car was sent to reconnoitre and find out whetherKulasingham was present and that the accused was picked up on thosecond occasion. As the car passed the shop the second time the accused,who was armed with a gun, fired a shot from the rear window of the carclosest to the shop. Kulasingham states that he saw about IS" of thebarrel protruding from the window of the car. The shot struck thedeceased who rolled off the step. The car then speeded up and proceededfast. Sharma was at that time inside the shop attending to some accountsand Kulasingham told Sharma that the accused had shot the deceased.Kulasingham stated that the distance between the place where he wasseated and the car, at the time of the shooting, was 71- feet. The stepsof the shop were about 4 feet from the edge of the road and on the sideof the road towards Kajikcsanturai there was a projecting wall of theadjoining barber saloon which abutted the road and enabled a personsitting on the steps to 'see only a distance of about 15 to 20 feetin that direction. The deceased had received the shot on the upper j)art ofthe body—the face, neck, chest and upper limbs. There were 22 entrancewounds and 129 injuries and according to the evidence a Ko. 4 cartridgehad been used. Out of the 1G0 pellets in such a cartridge about a hundredhad struck the deceased causing almost instantaneous death. Thocircumstances clearly indicate a case of deliberate shooting.
Sharma also purported to identify the accused as the assailant butthe learned trial judge invited the jury not to accept his evidence ofidentification “ as it would be highly dangerous to act on his evidence.”Therefore it must be assumed that the jury acted solely on Kulasingham’aevidence of identification in finding the accused guilty of murder. '
820
ALLES, J.—Rathinam v. The Queen
Learned Counsel for the appellant submitted that his client had beengravely prejudiced by inadmissible evidence of a very damaging naturebeing led at the trial by the Crown and further that there was a gravemisdirection by the trial Judge in regard to the manner in which thoJury were invited to accept Kulasingham’s evidence of identification.Wien Inspector Savundranayagam, who conducted the Police inquirieswas being examined by Crown Counsel lie elicited the fact thatthe Inspector reached the scene of the shooting at 6.25 p.m. and waafollowed by Inspector Aluvihare. Kulasingham and Sharma were atthe scene and Savundranayagam questioned them both orally and thensent Aluvihare to arrest the accused, Shanmugam and Subramaniam.The statements of Kulasingham and Sharma were recorded at 7 p.ra.The following are the questions put and the answers elicited fromSavundranayagam on this point.
Q. Before you recorded the statement of Kulasingham you asked
Aluvihare to go and arrest the accused.
Yes. I asked him to arrest Rathinam, Shanmugam andSubramaniam.
Q. Rathinam is the accused ?
A. Yes.
Q. Before you recorded the statement of Kulasingham at 7 o’clock
you gave these instructions to Aluvihare ?
A. Yes.
Q. At that time you had already questioned whom ?
A. Kulasingham and Sharma. After questioning them I instructedAluvihare to arrest the accused.
Q. Did you instruct him to arrest any other person ?
A. Ko.
It is inconceivable, from the answers to questions 994 to 99S that thejury were not apprised of the fact that before 7 p.m. Kulasingham andSharma had made oral statements to Savundranayagam inculpating thoappellant, which resulted in instructions being given to Aluvihare toarrest the three persons, who according to Kulasingham’s evidence, werepresent in the car at the time of the shooting. This evidence whichsuggested that Kulasingham and Sharma had mentioned the name of theaccused to the Police is clearly in conflict with the provisions of Section122 (3) of the Criminal Procedure Code, which only permits evidence tobe led to contradict a witness and not to corroborate him. This Courthas previously deprecated this type of questioning by Crown Counsel(Vide C.C.A. Appeal S7-S8/6S-SC 91/6S M. C. Colombo 43196/C). Sincothe judgment of the Privy Council in Ramasamy1 has approved of thedecision of the Court of Criminal Appeal in Buddharal-ila Thera2 which
» (1964) 66 N. L. R. 263.• {1962) 63 N. L. R. 433.
ALLES, J.—Ha'.hinam v. The Queen
321
held that “ the effect of Section 122 (3) was to render the use of an oralstatement to a police officer in the course of an investigation just asobnoxious to it, ns the use of the same statement reduced into writing ”it should be noted that the use of Section 122 (3) is beset with manya pitfall and one has to tread warily lest one unconsciously contravenesthe provisions of this section.
Since there appears to be some doubt in regard to the procedure to beadopted in the use of Section 122 (3), we think it desirable to lay downcertain fundamental principles for the guidance of Counsel and t lie Court.Section 122 (3) and its legal implications have been the subject ofcontroversy since 1924, when Bertram C. J. delivered the judgmentof the Court in R. v. Pabilis 1 and the history of the Section andits gradual development upto its present form has been set out fullyby Viscount Radcliffe in Ramasamy’s case. In the concluding portion ofthe judgment dealing with the legal implications of the Section he has ,remarked that the Criminal Procedure Code though “ not primarilyconcerned with the rules of evidence at all but containing regulationsfor the special procedure of investigation under Chapter XII andmanifesting a clear general intention based on the peculiarities ofprocedure ” was intended “ to keep material produced by it out of therange of evidence to be used when a trial takes place ”. It would thereforeappear that the Court must be extremely cautious to ensure that materialis not elicited either directly or indirectly which would suggest to a jurythat the contents of a Police statement made either orally or recorded inwriting corroborates the evidence given by a witness in Court. Ananatysis of the Section would seem to indicate that—-
The statement can only be used for the limited purpose of proving
that a witness made a different statement at a different timo orto refresh the memory of the person recording it:
Any criminal Court may send for the statements recorded in a
case under inquiry or trial in such Court and may use suchstatements or information not as evidence in the case but toaid it in such inquiry or trial :
Neither the accused nor his agents shall be entitled to call for such
statements except as provided for in the recent amendment tothe Criminal Procedure Code by Act No. 42 of19G1, nor shallhe or they be entitled to see them because they are referred toby the Court :
If the statement is used by the police officer or inquirer to refresh
his memory or if the Court uses them for the purpose ofcontradicting such police officer or inquirer the statement willbe entitled to be shown to the adverse party and such partywill bo entitled to cross-examine the witness thereupon.
(1024) 25 N.L.Jt. 424.-
322
ALLES, J.—Jiathinam v. The 'Queen
It will be noticed from the above analj^sis that it is the Court which hasoverall control over the notes of the Police investigation when it is intendedto contradict the witness from the written record. It is the Court whichcalls for the notes of the Police investigation and has a discretion whetherit should be used to aid it at the inquiry or trial and no reference by theCourt entitles the defence to have access to the statements. As GarvinA. C. J. observed in the Divisional Bench ease of King v. Cooray 1—
” A Court is entitled to use the Information Book to assist it inelucidating points which appear to require clearing up and are materialfor the purpose of doing justice. The Information Book may showthat there exists a witness, whom neither side has called, able to givematerial evidence which a Judge may think should be placed beforea jury. It may indicate lines of inquiry which should be explored inthe highest interest of justice, ormay disclose to a Judge that a witnessis giving in evidence a story materially different from the story toldby him to the investigating officer shortly after the offence.”
Although it sometimes happens that the defence have in their possessionstatements recorded in the course of an investigation and proceed tocross-examine the witnesses on their police statements and althoughthere can be no objection to such a course in view of theprovisions of the Evidence Act, the defence is not legally entitled to callfor the statements, particularly as Section 122 (3) prohibits the defencefrom having access to such statements. The manner in which thestatements can be used is a matter entirely within the discretion of theCourt and no doubt the Court will always exercise its discretion in theinterests of justice. Be that as it may, neither Counsel for the defencenor Counsel for tjie prosecution nor even the Court is entitled to elicitevidence from the Police statements which corroborates the evidenceof the witness in Court. Reference has already been made to this lapseon the part of Crown Counsel in the questions put to InspectorSavundranayngam but learned Counsel for the defence, inadvertentlyno doubt, has also been guilty of this same lapse when he elicited fromKulasingham that he told the Police officer thatEatJiinam, Subramaru’amand Shanmitgam came in a car and fired. It may be that Counsel’sobject was to indicate to the Jury that Kulasingham in lus police statementstated that all three persons fired, whereas in Court he stated that onlythe accused fired, but the questions and answers unfortunately resultedin placing before the Jury, that part of Kulasingham’s statement wliiehimplicated tho appellant. In tho same connection, learned Counsel forthe appellant complains that the directions of the trial Judge in regard tothe credibility to be attached to Kulasingham’s evidence were faultybecause in Counsel’s submission, the directions, in effect, invited tho
* . (1026) 28 N. L. H. 7J at 83.
ALLES, J.—Rathinam v. The Queen
323
Jury to accept the evidence of Kulasingham because it was corroboratedby the statement which lie promptiy made to the Police. Very earlyin the summing up lie directed the Jury in the following terms :—
" Now, one of the tests we would advise 3*011 to nppl3* is, how soonwas this complaint made after the incident ? Because 3*ou will realisethat the sooner a statement is made, the less chance there is forfabrication. In tin's instance, 30U will remember that tin's incidenthappened at 5 45 p.m. in the evening approximately. The Inspector6a3*s that he was at the scene bv 6-25 p.m. He questioned bothKulasingham and Sharma and by 7 p.m. he says he was recording thestatement of Kulasingham. So then that will be a matter for 3*011to take into consideration as to how promptly-* the statements w’ererecorded. You will see that Kulasingham’s statement was recordedat 7 p.m. but he had been questioned earlier before his statementwas recorded. The incident happened at 5-45 p.m. and by 6-25 p.m.the Police were at the scene. At 7-40 p.m., the other statement wasrecorded. That gives 3'ou some idea of the promptitude of the recordingof the statements .”
It was submitted on behalf of the defence that the invitation to act onthe evidence of Kulasingham because of the promptness with whichhis complaint iva-s recorded, can only reasonably mean that the matterwhich the Jury acre asked to take into consideration was thatKulasingham had mentioned promptly the name of the accused as theassailant, negativing the possibility of fabrication.
Later, in dealing with Kulasingham’s evidence, the learned Judge gavethe following directions :—
“ Now, take on the other hand the evidence of the man Kulasingham.If 3'ou are satisfied that he had the opportune of seeing, and there isno suggestion made that he was so old he could not have seen. Ofcourse, the suggestion is made, broadly that in that little space of time3’ou could have made a mistake, 3*011 could have done this, 30U couldhave done that. Well, here is a man who tells 3*011 ‘ I made out thatman, seated in the very front of the boutique on the step, I couldhave seen Then, is there any reason to disbelieve him ? Then3*ou arc disbelieving him because 3*011 think Jie has a motive to falselyimplicate tlus person and for no other reason. If 3'ou are satisfiedthat he was in a position to see, then you are disbelieving him because3*oit tliink that he Jins a grudge and is falsely bringing this man in.
Now, in regard to that matter, as I told 3*ou, b3* 6-25 p.m. the Policeare there and sometime between 6-25 and 7 he has told the Police andby 7 00 Jiis statement is recorded. Then apparent^ according towhat he has said, he has told Sharma immediate^ and Sharma doesnot deny that it is possible that he did sa3* it. Then what is thisconspiracy ? That within that short space of time he has decided toimplicate this man not having seen tlie man who fired. If thatis the view you form, the accused must be acquitted straightaway.”
8 24
ALLES, J.—Rathinarn v. The Queen
Learned Counsel for the appellant submits, with some justification, thatwhen the Judge in the passage dealt with the possibility of a conspiracyto implicate the accused on a false charge and proceeded to remind themof the times at which the Police came and recorded Kulasingham’sstatement, it can only mean that what he told the Police was that theaccused was the assailant. Counsel further submits that the reference tothe information being given to Sharma soon afterwards can only meanthe same thing.
Finally, there is the following passage, towards the end of the charge :—
“ The evidence is purely that of Kulasingliam because you may havereason to doubt Sharma. Do you think it is possible for Kulasingliambetween 5-45 p.m. and 6-25 p.m., when the Police arri%'ed, to havepersuaded Sharma to falsely implicate another man in a murder case.That is the suggestion that Sharma was willing to fall in line withKulasingliam for Kulasingham’s own wicked design.”
In these passages, the learned trial Judge lias, quite unconsciouslyindicated to the Jury that Kulasingham had told the Police at the earliestopportunity that the accused was the assailant. We.are therefore inagreement with the submission of Counsel for the appellant that there wasa serious misdirection to the Jury when they were invited indirectly bythc trial Judge to accept the contents of Kulasingham’s Police statementas corroboration of his testimony.
Counsel for the appellant also submitted that the learned trial Judgewas in error when he asked them to consider the application of LordEllcnborough’s dictum in It. v. Cochrane1 (1SI4) Gurney’s Deports 479to the facts of this case. It would appear from tlie Judge’s charge thatCounsel for the defence suggested that Shanmugam might have beenthe assailant while the accused who was seated by his side may have beenonly holding the barrel of the gun. Dealing with this suggestion thetrial Judge said—
" If he was holding the gun and then a shot rang out, if this accusedis not the i>erson who fired the gun, that is a matter which is withinthe knowledge of the accused and nobody else.
Then gentlemen if this is the position, the Crown has proved it tothe point of saying that the lethal weapon was in the hands of tin’sperson, in that position, when the gun was fired. He was holding thegun. If somebody else fired the gun, who knows ? Can anybodyelse know other than the accused or the person who fired the gun ?”
He thereafter proceeds to cite the well known quotation from"It. v. Cochrane and in regard to the failure of the accused to give anexplanation concludes bv saying—
‘‘So, in a ease of shooting, if the prosecution can prove, it to thispoint-, that this man was seen with the gim in his hands, with the barrelprotruding and at that moment a shot fired would that not at least1 {/V/ *) f* t.ru^rt'v f rporfjf J70,
ALLES, J.—liathinam v. The Queen
325
show a suspicious circumstance to which he alone holds the key ?Please remember, I am not saying that he has to prove anything;that is for the prosecution. The prosecution has to prove the case.Lord Ellenborough is only saying how you could deal with theseparticular circumstances of suspicion.”
Although in this passage the learned trial Judge did remind the Jurycorrectly' in regard to the burden of proof it seems to us that the citationfrom Lord Ellenborough’s dictum was not apposite in the particularcircumstances of the case and may have tended to confuse the Jury.If the defence had taken up the position that Shanmugam may' have beenthe assailant and the accused was only' present and holding the barrel(probably' to keep it away from him) there was no obligation on hispart to give an explanation of his presence in the ear. The accusedwas not charged on the basis of common intention and the prosecutioncase was that he alone was the assailant. In a case where, on the evidenceled by' the prosecution, the defence suggests that, the accused or anothercould have fired the gun, then the accused is not called upon to offerany evidence on the point and the dictum has no application.In the words of the Court of Criminal Appeal in Seetin v. The Queen1there was no obligation on the accused in this case “ to offer evidencewhich wa-s in his power to offer ” when the defence suggested that itwas Shanmugam and not the accused who was responsible for theshooting.
In view of these misdirections the question arises firstly, whetherthis is a fit case to which the proviso to Section 5 (1) of the Court ofCriminal Appeal Ordinance would be applicable. Can it be saidin the words of the House of Lords in Slirlajid’s case2 that inspite of the misdirections in regard to the provisions of Section122 (3) of the Criminal Procedure Code and the inadmissible evidenceled by Crown Counsel a reasonable jury after being properly' directedwould on the evidence of Kulasingham without a doubt have convictedthe appellant ? Learned Counsel for the appellant submitted that itwas impossible for the Jury to hare inevitably come to that conclusionin view of three vital matters—the fact that the motive was doubleedged, the absence of injuries on Kulasingham and the evidence of theBallistics expert in regard to the range of fire. On the question of motiveit is obvious that even if Kulasingham did not identify the accused hehad every reason to implicate the accused as the assailant. Ln regardto the absence of injuries on Kulasingham, it is indeed remarkable thathe escaped imscathed, although he was seated in close proximity to thedeceased and the absence of injuries is not inconsistent with the defencesuggestion that he arrived on the scene after the shooting. In regard
■(1965) GS N. L. n. 316 at 321.
‘(1943) 30 Or. App. R. 40.
326
ALLES, J.—Ixathinam v. The Queen
to the third matter, the Ballistics expert was not a witness at the trialand his deposition in the Magistrate’s Court was led in evidence as partof the prosecution case. In that deposition he expressed the opinionthat the spread on the body 17" x 17' would correspond to a firing distanceof approximately 40 feet from a 16 bore No. 4 cartridge fired from a gunof average barrel dimensions. He stated that he was shown the positionof the car from where the shooting took place—an item of inadmissiblehearsay—and considering the spread and the distribution of the waddingsand position of the car he thought the shot could have been fired fromtho position indicated with a No. 4 cartridge from a gun with a shortbarrel. The most that can be said about this evidence is that it is notnecessarily inconsistent with Kulasingham’s evidence that probablya short-barrelled gun was used. The evidence however that a short-barrelled gun was used was of an extremely tenuous nature and dependsentirely on the evidence of Kulasingham that the shot was fired fromdistance of 7^ feet and that he only saw about IS" of the barrel protrudingfrom tho window. This however docs not exclude the possibilitj' of thebarrel being concealed inside the car. We therefore agree with thesubmissions of counsel that this is not a case to which the proviso toSection 5 (1) can properly be applied. In the words of the Court ofCriminal Appeal in England in It. v. Hcuddy1 “the Court may applythe proviso and dismiss the appeal only if they arc satisfied that on thewhole of the facts and with a correct direction the only proper verdictwould have been one of guilty It is impossible for us to say that onthe whole of the facts and assuming a correct direction the Jury would,without a doubt, have acted on Kulasingham’s evidence and found theaccused guilty.
Finally there is the question whether we should order a new trial underthe proviso to Section 5 (2). This is the second trial which the appellanthas faced. At the first trial too he was convicted of murder by a dividedverdict of the Jury but that verdict was set aside in appeal. In thehistory of the Court of Criminal Appeal in tIris country an accused personhas never been tried on a third occasion. We are therefore not disposedto act under the Proviso to Section 5 (2) and order a new trial. In factlearned Crown Counsel made it quite clear that he was not making suchan application. The conviction is therefore quashed and the accusedacquitted.
Accused acquitted.
U9H) K. B. 412.