026-SLLR-SLLR-1998-V-2-SIRIWARDENA-AND-ANOTHER-v.-THE-ATTONEY-GENERAL.pdf
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SIRIWARDENA AND ANOTHERv.
THE ATTORNEY-GENERAL
COURT OF APPEALTAMBIAH, J.
SENEVIRATNE, J. AND
P. S. DE SILVA, J.
C.A. NOS. 111 – 112/81
C. KALUTARA NO. 228M.C. HORANA NO. 512712TH JANUARY. 1983
Penal Code – Conviction of grievous hurt – S. 317 of the Code – indivisibilityof the credibility of a witness – Applicable principle.
Four accused were indicted with murder. At the trial the 1st accused was notpresent. He was tried in absentia along with the 2nd, 3rd and 4th accused whowere present. The case for the prosecution rested to a very large extent on thetestimony of the sole eyewitness Mahipala. The defence of the 2nd, 3rd and 4thaccused was in each case, an alibi which was supported by other evidence. Aftertrial the 4th accused was found not guilty by the unanimous verdict of the jurywhilst the 1st, 2nd and 3rd accused were found guilty of causing grievous hurt.The 2nd and 3rd accused appealed.
Held:
The verdict of the jury was unreasonable.
Per G. P. S. de Silva, J.
The principle is that the testimony of a witness which is identical andwhich is exactly of the same weight as against two or more accused persons,cannot be found to be unacceptable against one accused and acceptableagainst others."
Cases referred to:
Baksh v. The Queen (1958) AC 167 (P.C.)
R. v. Margulas (1922) 17 Criminal Appeal Reports 3.
Francis Appuhamy v. The Queen 68 N.LR 437.
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Siriwardena and Another v. The Attorney-General
(G. P. S. de Silva, J.)
223
APPEAL against a conviction at a trial before the High Court.
A. A. de Silva with Haputhantri for the 2nd accused-appellant.
A. A. de Silva with Ifthika Hashim for the 3rd accused-appellant.
Rohan Jayetilake Senior State Counsel for the Attorney-General.
Cur. adv. vult.
February 7, 1983
G. P. S. DE SILVA, J.
Four accused persons, together with a person unknown to the pros-ecution, were indicted on a charge of murder of one Sirisena on 16thOctober, 1972. At the trial, the first accused Piyadasa was not presentand the trial against him proceeded in his absence. The jury by theirunanimous verdict, convicted the 1st, 2nd and 3rd accused of causinggrievous hurt, an offence punishable under section 317 of the PenalCode. The 4th accused Dharmapala, however, was found not guiltyof any offence by the unanimous verdict of the jury. The 2nd and3rd accused have now appealed to this court against their convictionand the sentence of 5 years' rigorous imprisonment.
The case for the prosecution rested to a very great extent uponthe testimony of the sole eyewitness, Mahipala. Mahipala's evidence,in brief, was that, the deceased had invited him to see a film showwhich was due to commence at 6.30 p.m. The two of them set outtogether. The deceased was pedalling his bicycle while Mahipala wasseated on the crossbar of the cycle. As they were proceeding in thisfashion to see the film show, according to Mahipala, he saw the 1st,2nd, 3rd and 4th accused along with an unknown person, standingon either side of the road, opposite the house of the 4th accused.All four accused persons and the unknown man were armed with clubs.Mahipala first saw these persons about 10 or 15 ft. ahead of himwhile he was seated on the crossbar of the cycle. According toMahipala, there was no enmity whatever between the accused personsand the unknown man on the one hand and the deceased and himselfon the other. Mahipala's position is that he and the deceased tookno notice of these persons who were armed with clubs and as theywere proceeding just past the bridge, the deceased received a blowon his head with a club. Mahipala was unable to identify the person
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who dealt that blow. On receipt of the blow, the deceased andMahipala fell on the ground. According to Mahipala, he got up andran in the direction of his house. Mahipala’s evidence is that he ranabout 200 ft., turned back and looked, and then he saw the 1st, 2nd,3rd and 4th accused and the unknown person, surrounding the deceasedand assaulting him with clubs. He ran home and informed his fatheras to what had happened. Within 10 or 15 minutes, he and his fathercame to the spot where the assault took place. According to theevidence of Mahipala's father, there was nothing to indicate that anyincident had taken place at that spot. Mahipala admitted in evidencethat he did not raise cries although there were houses close to theplace of the incident. Nor had he, in any way, endeavoured to goto the assistance of the deceased.
The evidence is that the deceased' was admitted to the Horanahospital at 5.35 p.m. on 16th October, 1972. Mahipala had notsustained even an abrasion. The deceased, however, had abrasionssuggestive of a fall. The deceased had also injuries on his headconsistent with having been caused by a club. The medical evidenceshows that the deceased had received at least five blows with a club.
Besides the evidence of Mahipala, the other item of evidenceincriminating all four accused persons is a statement alleged to havebeen made by the deceased to his elder sister, Piyawathie, thatevening in hospital. According to Piyawathie, the deceased had toldher that the 1st, 2nd, 3rd and 4th accused and an unknown man,had assaulted him with clubs. Piyawathie stated in evidence that thedeceased uttered these words with difficulty and that thereafter hecould not speak further. Piyawathie's statement, however, wasrecorded by the Police only on the following day at 7.10 a.m. althoughher evidence was that she was present at the hospital when Sub-Inspector Wickremanayake who conducted the investigations, cameto the hospital that night.
Having regard to the fact that the deceased was admitted to hospitalat 5.35 p.m., the incident must have taken place prior to that pointof time. The state of light therefore at the time of the incident, couldnot have militated against a proper and accurate identification of theassailants by Mahipala. Moreover, Mahipala's evidence in that all fouraccused were persons of the same village, and he had known themfor many years prior,to the date of the incident. It is, therefore, clear
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that Mahipala could not have made a mistake in regard to the identityof the persons who participated in the attack upon the deceased. Theabsence of any motive for the attack upon the deceased is also amatter which is not without significance in this case.
The 2nd, 3rd and 4th accused gave evidence and their defencewas an alibi. The 2nd and 4th accused are brothers while the 3rdaccused is a close relation. In his evidence, the 2nd accused statedthat on the day of the incident, at about 3.45 p.m., he went to thehouse of police constable Kodippily and helped him to put up a fence.The house of the police constable is half a mile away from the placeof the incident. According to the 2nd accused, it was dark by thetime he had finished his work. The police constable himself gaveevidence and corroborated the evidence of the 2nd accused. Hisevidence was that the 2nd accused worked on his land from about3.45 p.m. till 6.00 or 6.15 p.m. and the two of them went thereaftertogether for a bath.
The 3rd accused was a night watcher at a saw mill which wasabout quarter mile away from the place of the incident. The 3rdaccused in his evidence stated that on the day in question, he hadcome to work at about 5.00 p.m. and he denied having assaultedthe deceased. The evidence of the 3rd accused was supported byone Seneviratne who is also a person who works at the saw mill.Seneviratne's evidence was that the 3rd accused remained in thepremises of the saw mill between 5.00 p.m. and 7.30 p.m. on therelevant date.
The 4th accused Dharmapala who was found not guilty of anyoffence, in his evidence stated that he works at a branch of the Co-operative Wholesale Establishment in Homagama, which is about 13miles away from the place of the incident. According to Dharmapala,he left home on the day in question at about 6.00 or 6.15 a.m. Hereached his place of work at about 9.00 a.m. and he worked thatday till 5.00 p.m.. It takes about one hour for him to return to Horanaby bus. His evidence was that he reached Horana at about 6.00 or6.15 p.m. The attendance register at the C.W.E., was producedmarked ‘4D3’. This document clearly supported the evidence ofDharmapala in regard to the time of arrival at the place of work andthe time of departure. The relevant entries had been initialled by theStores Manager who gave evidence on behalf of the 4th accused.
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The position of the 4th accused was that having left Homagama at5.00 p.m., he could not possibly have reached the place of incidentby 5.30 p.m.
Mr. A. A. de Silva, learned counsel for the 2nd and 3rd accusedappellants, made no complaint against the charge to the jury. Indeed,the summing-up is comprehensive, fair and contains no misdirections(or non-directions) either on the facts or on the law. Mr. de Silva,however, argued with much force that the verdict of the jury againstthe appellants is illogical and unreasonable. The basis for thiscontention was that the evidence against the appellants and againstthe 4th accused was identical but the jury while finding the 4th accusednot guilty of any offence, proceeded on the self-same evidence tofind the appellants guilty of causing grievous hurt.
The case for the prosecution had to stand or fall, on the testimonyof Mahipala. It could hardly be said that the statement the deceasedis alleged to have made to his own sister, carried the case for theprosecution any further. Having regard to the time at which the incidentoccurred and the circumstances in which Mahipala claimed to haveidentified the assailants, it is clear that he could not have madea mistake in regard to the identification of the 4th accused whomhe had known from his childhood. In fact, his evidence was thatthe incident took place on the road opposite the house of the 4thaccused at about 5.30 p.m. Considering the verdict of "not guilty” inrespect of the. 4th accused, it is manifest that the jury had eitherrejected the testimony of Mahipala as against the 4th accused or atleast, had a reasonable doubt as to the truth of his evidence in sofar as the 4th accused was concerned, having regard to the alibi setup by him. In other words, the conclusion is inescapable, that thejury found themselves unable to act with confidence upon the evidenceof Mahipala as against the 4th accused. The question then arisesas to how the jury could have acted with confidence on the testimonyof Mahipala as against the appellants, when no distinction couldreasonably have been drawn between the case against the appellantson the one hand and the 4th accused on the other.
Mr. Rohan Jayetilake, senior state counsei, submitted that theverdict of the jury is not unreasonable because the jury may havefound that the “alibi" put forward by the 4th accused credible whereas,the "alibi” of the appellants unacceptable. Even so, it seems to me
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(G. P. S. de Silva, J.)
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that the moment the jury had a reasonable doubt as to the truth ofMahipala's evidence implicating the 4th accused, the jury could nothave on the very same evidence acted with confidence as againstthe appellants. The doubt in regard to the veracity of Mahipala'sevidence, created by the alibi of the 4th accused, must necessarilyhave an impact on the rest of Mahipala's evidence. The principle isthat the testimony of a witness which is identical and which is exactlyof the same weight as against two or more accused persons, cannotbe found to be unacceptable against one accused and acceptableas against the others. In this context, the view of the JudicialCommittee of the Privy Council, expressed in Baksh v. the Queen01,as regards the indivisibility of the credibility of a witness is veryrelevant:
"Their credibility cannot be treated as divisible and acceptedagainst one and rejected against the other. Their honesty havingbeen shown to be open to question, it cannot be right to accepttheir verdict against one and reopen it in the case of the other.Their Lordships are accordingly of opinion that a new trial shouldhave been ordered in both cases."
Another case that is relevant is R v. Margulas(Z>, where the allegedeyewitnesses claimed to have identified two accused jointly committingthe offence of burglary. The jury convicted the 1st accused andacquitted the 2nd accused. The Court of Criminal Appeal quashedthe conviction of the 1st accused on the ground that the evidenceagainst him cannot be considered sufficient if those against the manwhom the jury acquitted "was exactly of the same weight". As inthe present case, in Margulas's case too, no complaint was madeof the summing-up. On the other hand, Mr. Rohan Jayetilake stronglyrelied on the case of Francis Appuhamy v. The Queen13* in an effortto support the convictions. Senior state counsel referred to that partof the judgment where T. S. Fernando, J., discussed Baksh v. theQueen (Supra) and the principle of the indivisibility of the credibilityof a witness. Counsel relied particularly on the following dicta:
"The remark that credibility of witnesses could not be treatedas divisible came to be made in the circumstances related above.We do not think this remark can be the foundation for a principlethat the evidence of a witness must be accepted completely ornot at all. Certainly in this country it is not an uncommon experience
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to find in criminal cases witnesses who, in addition to implicatinga person actually seen by them committing a crime, seek toimplicate others who are either members of the family of that personor enemies of such witnesses. In that situation, the judge or jurorshave to decide for themselves whether that part of the testimonywhich is found to be false taints the whole or whether the falsecan safely be separated from the true (at page 443)."
In this case, the Crown relied on the evidence of a single eye-witness named Irene Rodrigo. It was a case of shooting by night andhence the possibility of mistaken identity could not be discounted.Having referred to Baksh's case, T. S. Fernando, J. proceeded to statein the course of his judgment:
"In the instant case, in the light of the directions given by thetrial judge, it is, in our opinion, not permissible to infer that thejury considered Irene's evidence in respect of her identification ofthe 5th accused to be false. The high probability is that theyconcluded she was merely mistaken in regard to the identity ofthe fifth man, the man with the pistol. . . References were madealso to the case of Harry Margulas (17 Cr. A.R. 3) and cases whichhave purported to follow it. In all those cases, however, the juryon evidence of the same weight had in the case of one or moreof the accused persons returned a verdict of guilty while acquittinganother or others. Such a result would, of course, be unreasonable:but that is not the position in the instant case where the distinctiondrawn by the jury can be shown to be based on sufficient reason."(The emphasis is mine.)
Thus, it is manifest the learned judge was there dealing with acase where the facts were entirely different from the facts of the instantcase. It is equally clear that Francis Appuhamy’s case has not departedfrom the principle laid down in Margulas's case (Supra).
Accordingly, I am of the opinion that Mr. A. A. de Silva's submissionthat the verdict of the jury is unreasonable, is entitled to succeed.The appeals of the 2nd and 3rd accused-appellants are allowed, theirconvictions and sentences are quashed, and they are acquitted.
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Balasubramaniam and Another v. Upati de Silva and Another
229
TAMBIAH, J. – I agree.
SENEVIRATNE, J. – I agree.
Appeals of 2nd and 3rd accused-appellants allowed;Their convictions and sentences quashed.