Sn Lanka Law Repons
THE ATTORNEY * GENERAL
COURT OF APPEAL.
P. R. P. PERERA, J. AND W. N. D. PERERA, JC. A. 64/87 — H. C. MATARA 19/86.
MAY 7, 1990.
11990) 1 Sri LR.
Criminal Law – Charges ol murder and causing hurl – Penal Code. ss. 296. 314. 315-Credibility ol witnesses- Applicability ol the maxim falsus in uno falsus in omnibus.
Samaraweera v. The Attorney-General
Four accused were indicted for murder on charges under sections 296, 315, 314 of thePenal Code. At the end of the prosecution case the 1st and 4th accused were acquittedon the directions of the Judge to the jury. At the conclusion of the trial the 2nd accused wasacquitted by the unanimous verdict of the jury while the 3rd accused-appellant was foundguilty of culpable homicide not amounting'to murder on the basis of grave and suddenprovocation on the count of murder and acquitted on the other counts. The main challengeto the verdict was on the ground that it was unreasonable having regard to the fact that thesame two witnesses who testified against the 3rd accused had testified against the 2ndaccused who was acquitted. Having disbelieved the two witnesses as against the secondaccused, the jury should not have accepted their evidence against the 3rd accused -appellant. The maximum falsus in uno falsus in omnibus should have been applied.
The verdict was supportable in that the acquittal of the 2nd accused could be attributableto the fact that vicarious liability on the basis of common intention could not be imputedto him on the evidence even it the two witnesses were believed. The maxim falsus in unofalsus in omnibus could not be applied in such circumstances Further all falsehood is notdeliberate. Errors of memory, faulty observation or lack of skill in observation upon anypoint or points, exaggeration or mere embroidery or embellishment must be distinguishedfrom deliberate falsehood before applying the maxim. Nor does the maxim apply to casesof testimony on the same point between different witnesses. In any event this maxim isnot an absolute rule which has to be applied without exception in every case where awitness is shown to have given false evidence on a material point. When such evidenceis given by a witness the question whether other portions of his evidence can be acceptedas true may not be resolved in his favour unless there is some compelling reason for doingso. The credibility of witnesses can be treated as divisible and accepted against one andrejected against another. The jury or judge must decide for themselves whether that partof the testimony which is found to be false taints the whole or whether the false can safelybe separated from the true.
Cases referred to :
The Queen v. Julis 65 NLR 585 (CCA).
Francis Appuhamy v. The Queen 68 NLR 437, 443 (PC).
Mohamed Fiaz Baksh v. The Queen 1953 AC 157.
APPEAL from Judgment of the High Court of Matara.
Godwin Perera for accused-appellant.
Anura B. Meddagoda State Counsel for the State.
Cur. adv. vult.
Sri Lanka Law ReportsIt990) I Sri L.R.
P. R. P. PERERA, J.
The accused-appellant in this case together with three others wereindicted in the High Court on the following charges
that on or about 2nd October, 1981 they caused the death of oneReuben Samararatne, an offence punishable under section 296of the Penal Code.
that in the course of the same transaction they voluntarily causedhurt to Cyril Samarawickrema, with a sharp cutting weapon – anoffence punishable under section 315 of the Penal Code.
that they caused hurl to Police Constable Seneviratne Banda – anoffence punishable under section 314 of the Penal Code.
At the end of the prosecution case, the learned Trial Judge, directedthe jury to acquit the first and 4th accused of all the charges, and thesetwo accused were discharged at that stage. Thereafter at the conclusionof the trial the jury by its unanimous verdict acquitted the second accusedof all the charges. The jury also by its unanimous verdict acquitted thepresent appellant (who was the third accused at the trial) on counts (2)and (3) of the indictment, but found the appellant guilty of the lesseroffence of culpable homicide not amounting to murder on the basis ofgrave and sudden provocation on count (1). The High Court Judge,sentenced the accused appellant on this count to a term of four yearsrigorous Imprisonment. The present appeal is against this conviction andthe sentence imposed.
It was the submission ol Counsel for the appellant that the verdict ofthe jury in the present case was unreasonable, having regard to theevidence and should not therefore be permitted to stand. Counselhowever, did not have any criticisms to make in regard to the summingup of the learned trial Judge.
Counsel submitted firstly that the medical evidence in this case, wasso contradictory, and was also at variance with the evidence of eyewitnesses.
The main ground of appeal, however, relied on by Counsel, was thatthe verdict on count (1), against the accused-appellant was unreasonablein the light of the acquittal of the second accused, the case against whom
Samaraweera v. The Attorney-General (P. R. P. Perera, J.)
was also based entirely on the evidence of the same two eye witnessesSamarawickrema and P. C. Banda. Counsel complained that the juryhaving rejected the evidence of these two witnesses in respect of thesecond accused had acted upon the same evidence to convict theaccused-appellant. Counsel submitted that the credibility of witnessescannot be treated as divisible and accepted against one and rejectedagainst the other. He relied upon the well known maxim falses in unofalsus in omnibus (he who speaks falsely on one point will speak falselyupon all). Counsel contended that there were no circumstances whichexcluded the application of this maxim in the present case as the soletestimony against the accused-appellant is that of the same twowitnesses, Samarawickrema and Police Constable Seneviratne Banda.Counsel cited The Queen v. Julis (1) in support of this proposition.
The case for the prosecution as testified to by Samarawickrema andP. C. Banda, is to the effect that the deceased. Reuben Samararatne hadmade a complaint to the Agrarian Services office in September 1981, thatthe Ela at Udukumbara had been obstructed. The other parties to thisdispute were the first and second accused in this case. The Officer-in-Charge of the Kamburupitiya Police station , had also inquired into thiscomplaint and the first accused had undertaken to restore the Ela to itsoriginal state. On 02. 10. 81 Samarawickrema, who was a cultivationofficer, had gone to Udukumbura Ela, around 9 a. m. with the deceasedand P. C. Banda, to the Ela,. Before they commenced workSamarawickrema had met the first and second accused and had informedthem of the purpose for which they had come there that morning. Aboutten persons had participated in this work. While they were in the processof clearing the Ela, the first, second and third accused had come there andthere had been a dispute. The second accused had struck the Policeofficer with hands, and had run along the bund when Samarawickremahad attempted to apprehend him. According to Samarawickrema, at thatstage the second accused had struck him with a sword. At around thattime the third accused had also come running and had struck thedeceased with a sword on the head. The first and fourth accused hadcome to the scene after the attack on the deceased armed with clubs, andshouting “attack".
According to the medical evidence injury No. (1) which had beeninflicted on the deceased, was a necessarily fatal injury which had causeda fracture of the skull and severe injury to the brain. The Doctor has
Sri Lanka Law Reports
119901 1 Sri L.R.
expressed the opinion that this injury had been caused with a heavysharp cutting weapon – like a sword. He has also stated in examinationin chief that having regard to the nature of the head injury it was difficultto say that such an injury could have been caused with a mammoty. Incross examination however he had admitted that it was possible for suchan injury to have been caused with a mammoty if the blade of themammoty had a very sharp edge.
It is this medical evidence that Counsel complained was so hopelesslycontradictory and should be rejected. I am unable to agree with thissubmission. It is the Doctor’s evidence that the fatal injury inflicted on thehead of the deceased could have been caused with a heavy sharp cuttingweapon and he had expressed the opinion that if a mammoty which hada blade with a sharp cutting edge had been used, this injury could wellhave been caused. I see absolutely no contradiction in this medicalevidence, but I must observe that the medical evidence in the case,strongly corroborates the evidence of the two eye-witnesses. I see nomerit therefore in this submission of learned Counsel.
I will now proceed to consider the main ground of appeal, which wasstrongly urged by Counsel, that it was not permissible for the jury to actupon the evidence of the two eye-witnesses against the accused appellantwhen they have rejected testimony in regard to the second accusedwhom they acquitted at the conclusion of the trial. Counsel relied stronglyon the Queen v. Julis (1).
Having regard to the evidence I am of the opinion that falsus in unofalsus in ommibus has no application to the instant case. In this case, itis in my opinion not permissible to infer that the jury considered theevidence of the two eyewitnesses to be false. The high probability is thatthey have rejected the claim of the prosecution that the second accusedshared a common intention with the third accused in committing theoffence set out in count (1) of the indictment, It is also significant that asregards count(2), the alleged attack on Samarawickrema by the secondaccused with a sword is not supported by the other eye-withess – P. C.Banda. Certainly, they have found on the evidence of the two eye-witnesses that the accussed appellent attacked the deceased on that dayin the manner they have described.
Where however the maxim set out above is applicable it must be bornein mind that all falsehood is not deliberate. Errors of memory, faultyobservation or lack of skill in observation upon any point or points,
Samaraweera v. The Attorney-General (P. R. P. Perera. J.)
exaggeration or mere embroidery or embellishment must be distinguishedfrom deliberate falsehood. Nor does it apply to cases of testimony on thesame point between different witneses. (Vide The Queen v. Julis (1)C. C. A.).
In any event this maxim is not an absolute rule which has to be appliedwithout exception in every case where a witness is shown to have givenfalse evidence on a material point. When such evidence is given by awitness the question whether other portions of his evidence can beaccepted as true may not be resolved in his favour unless there is somecompelling reason for doing so.
As contended for by Counsel, even if this maxim is applicable in thepresent case, l am unable to agree with the contention that credibility ofwitnesses could not be treated as divisible and accepted against one andrejected against another.
I find support forthis view in Francis Appuhamy v. the Queen (2) wherehaving considered the circumstances in which the Privy Council [inMohommed Fiaz Baksh v. The Queen (3) 1958 A. C. 157J made theobservation that the credibility (of withesses) could not be treated asdivisible and accepted against one and rejected against another theSupreme Court, stated thus:
“We do not think this remark can be the foundation for a principlethat the evidence of a witness must be accepted completely or not atall. Certainly, in this country it is not an uncommon experience to findin criminal cases witnesses who, in addition to implicating a personactually seen by them committing a crime, seek to implicate otherswho are either members of the family of that person or enemies of suchwitnesses. In that situation, the Judge or jurors have to decide forthemselves whether that part of the testimony which is found to befalse taints the whole or whetherthe false can safely be separated fromthe true.” Per T. S. Fernando J.-
I prefer with respect to follow this later decision of the Court of CriminalAppeal in Francis Appuhamy's case on this matter. This submission ofCounsel for the appellant must therefore fail. I accordingly affim theconviction and sentence imposed on the accused-appellent. The appealis dismissed.
W. N. D. PERERA, J.-1 agree.
SAMARAWEERA v. THE ATTORNEY-GENERAL