Somasiri v. Attorney-General
COURT OF APPEAL
SENEVIRATNE. J. ABEYWARDENE. J. AND G. P. S. DE SILVA. J.
C. A. NO. 127/82: M.C. COLOMBO CASE NO. 764/84.
MAY 5. 1983.
Criminal Law — Motive — Dock Statements — Non-directions — Proviso tosection 334/(1} of Code of Criminal Procedure Act No. 15of 1979.
Evidence — Admissibility of statements under Section 32 of the EvidenceOrdinance.
Two statements by the deceased that the accused attempted a homosexualattack on him and he (the deceased) struck him some blows on the night onwhich the deceased met with his death as a result of cuts with an axe areadmissible under Section 32(1) of the Evidence Ordinance which makesadmissible evidence of any of the circumstances of the transaction whichresulted in the death (where the cause of death is in question). No direction wasgiven on this to the jury.
The two statements of the deceased were not led in evidence to prove a motivealone for proof of a statement of a deceased to prove motive would beinadmissible under Section 32(1) of the Evidence Ordinance.
The trial Judge had also not adequately directed the jury on the law pertaining toconsideration as evidence of an unsworn statement made by an accused fromthe dock. He had instructed the jury that such evidence is subject to the infirmitythat it is not tested by cross-examination but failed to mention to the jury that ifthey believe the unsworn statement it must be acted upon or if it raised areasonable doubt in their minds about the prosecution case they must acquit theaccused.
These two non-directions however caused no prejudice to the accused. This wasan instance when the court should act on the proviso to section 334(1) of theCode of Criminal Procedure and hold that notwithstanding that it is of opinionthat the point raised in the appeal might be decided in favour of the accused, theappeal should be dismissed as no substantial miscarriage of justice hasoccurred and the verdict has not occasioned a failure of justice.
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Cases referred to:
King v. MarshalAppuhamy 51 NLR 272
H. S. Perera v. Queen 76 NLR 21 7. 219.
Queen v. Stanley Dias — CCA Minutes of 24.11.1970
Somasunderam v. Queen 76 NLR 10. 12
King v. Asirwadan Nadar 51 NLR 322. 324
Justinpala v. The Queen 66 NLR 409
Queen v. Anthonypillai 69 NLR 409
King v. Kularatne 71 NLR 551
The Attorney-General v. Nallanthambi Thevanayagam Pillai S.C. 83/81 S.C.Minutes of 12.6.1982.
APPEAL from order of the High Court of Colombo.
VZ. Dayaratne for accused-appellant.
G. L. M. de Silva. S.S.C. for Attorney-General.
Cur. adv. vult
17 June. 1983SENEVIRATNE, J.
The accused-appellant was indicted in the High Court,Colombo on the following charge — that you did on 7.4.1978 atNugegoda cause the death of Kulatunge Arachchige AladinSingho alias Hemapala, and thereby committed the offence ofmurder — section 296, Penal Code. The Jury by a 6-1 verdicthas found the accused-appellant guilty of the offence of murder.The case against the accused-appellant was based solelyon circumstantial evidence. I will set out the items ofcircumstantial evidence which the prosecution led to prove thecharge of murder against this accused-appellant.
Somasiri v. Attorney-Genera/ (Seneviratne. J.)
Witness Siripala stated that his father was the owner of theboutique in premises No. 472. High Level Road.Gangodawila. There was a Carpenter's Bench behind thdboutique by the wall. He knew well, both the accused-appellant Somasiri and the deceased. Hemapala. Hemapalaand Somasiri used to sleep together usually on thisCarpenter's Bench. Stephen, the watcher of the Co-operative Stores also gave evidence to the effect that therewas a Carpenter's Bench behind the said boutique, and thathe had seen the accused-appellant and the deceasedHemapala sleeping on this Carpenter's Bench. WitnessLukshman Ranatunga gave evidence to the effect that theaccused-appellant and the deceased were close friends,and he had seen them sleeping together on the Carpenter'sBench. This evidence and another item of vital evidencewhich I will refer to later, disclosed a homosexualassociation between the accused-appellant and thedeceased, and has on the evidence in this case provided themotive for this murder of Hemapala.
Siripala's evidence was to the effect that on 6.4.1978 hewent to sleep in a room in his father's boutique, which isreferred to in evidence as the "Walan kade". At that time hesaw the accused-appellant Somasiri and the deceasedHemapala seated on the said Carpenter's Bench. Late atnight he heard a loud sound as if something was beingstruck, and later he heard someone groaning and vomitting.He switched the light and came out of the room. He saw thedeceased Hemapala on the Carpenter's Bench with cutinjuries. The accused-appellant Somasiri was not there norwas he seen even later. He called his father, Stephen thewatcher of the Co-operative Stores and others and took thedeceased Hemapala to hospital.
Stephen the watcher of the Co-operative Stores close bystated that on 6.4.1978 at about 9 p.m., he saw Hemapalathe deceased and the accused-appellant seated on
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the said Carpenter's Bench. At that time he did not know thename of the accused-appellant. At about midnightHemapala the deceased came up to him and told him asfollows
"qpdt ®@c5 cftfflD z5>jG5a». ®®.c>d esx50(5 (4) eozsdsS Oja^SOj” : •"That fellow got on to my body, I gave him four blows."
The deceased did not mention the name of the personreferred to by him as "qcV "That fellow". Then Hemapalawent to the tea kiosk to have tea. He came back and toldStephen as follows "qdt fsteaOx; sScaa)0255sx "See if thatfellow is there". Stephen stated that he understood that thedeceased was referring to the accused-appellant, whosename he came to know on that night as Somasiri. He wentup to the Carpenter's Bench and looked, the accused-appellant was not there. Hemapala the deceased said thathe was going to sleep and left. Later in the night he saw thedeceased Hemapala on the Carpenter's Bench with cutinjuries, and he along with witnesses Lukshman, Siripalaand others took the deceased to hospital. A crowd gatheredthere, but the accused-appellant was not seen in the crowd.
Witness Lukshman Ranatunga ran a tea boutique some
distance away from the said boutique. He stated that latemidnight Hemapala the deceased came to his tea boutique,had tea and told him as follows : "seate® QeoD eS qp*© c©sjjojaxi. daxsOx) ®® 0x50(5GDjS 03" Some' came near
and when he tried to get on my body I gave two blows."Later he saw Hemapala the deceased with cut injuries andalong with Siripala and others took him to hospital. At thehospital Hemapala was pronounced to be dead.
Witness Padmasiri Singanetti worked in the timber shedwhich was close to the said boutique. He stated that therewere three axes used by him to chop the wood, and heusually kept the three axes under the table in the roominside the timber shed. He stated that the accused-appellantused to sometimes sleep in his timber shed, and he alsoused to sleep in the "Walan kade". On 6.4.1978 night hewent to sleep. Later in the night the accused-appellant came
Somasiri v. Attorney-General (Seneviratne. J.)
into the timber shed and asked him to light the lamp. Helighted the lamp and both the accused-appellant and hewent to sleep. The accused-appellant slept on a mat insidethe timber shed. In the early hours of the morning on7.4.1978, one Sunil came and put him up and asked himwhere Somasiri was — i.e. the accused-appellant. Helighted the lamp and found Somasiri was not there. But themat on which he slept was laid in the same place on theground. He went out to the road and heard that thedeceased Hemapala was found with cut injuries. He statedthat he padlocked the timber shed and left to the hospital tosee Hemapala the deceased. When the timber shed waspadlocked no one could enter the shed. Next morning theInspector of Police came to his timber shed and took one ofthe axes, which was under the table. That axe had stains likeblood on the blade. That was an axe (marked P2) which wasused by him to chop the wood. The learned Senior StateCounsel submitted that the plausible explanation for theaccused's conduct in getting the lamp lit was his ulteriormotive to look for a weapon, in this case the axe.
Sugunendran, Inspector'of Police, Mirihana stated that hereceived information regarding this murder and went to thescene at 4.15 a.m. on 7.4.1978. There, he saw theCarpenter's Bench on which a mat was laid and there wereblood stains on the mat. He recovered the axe (P2) from thetimber shed, in which witness Padmasiri worked. He noticedthat the blade of the axe (P2) had stains of blood. The axe(P2) was forwarded to the Government Analyst forexamination and the Government Analyst has reported thatstains of human blood were identified in the blade of theaxe, in his report P3. The Inspector of Police, Sugunendranstated that having found that the accused-appellant hadgone to the harbour where he worked, to draw the monthlyadvance, he sent two police officers and got the accused-appellant arrested.
The postmortem on the body of the deceased has been heldby Dr. T. P. Weerasinghe, Acting J.M.O., Colombo. As
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Dr. Weerasinghe was not available to be called as a witness.Dr. Neville Fernando, A.J.M.O., produced the postmortemReport (PI), and has given evidence explaining thepostmortem Report. The postmortem Report stated that thedeceased had three long cut injuries, all on the right side ofthe face. According to the postmortem Report (PI), deathwas due to the "multiple injuries caused by a sharp cuttingheavy weighted weapon with force". Dr. Neville Fernandostated that those, injuries could have been caused by theblade of an axe like (P2). and were injuries that could causedeath in the ordinary course of nature.
The above were the items of circumstantial evidence led by theprosecution, and the evidence on which the charge against themurder of this accused-appellant has been proved. The accused-appellant has not given evidence, but had made a statement fromthe dock. His statement was a bare denial as follows :— "Thedeceased Hemapala was my friend. I did not have that kind ofenmity with him to cause his death. We two were friends. Icannot say for what reason I have been implicated in this case. Icame to know that Hemapala was dead when I was in my workplace. When I was in my work place, two Police Constables cameand took me into custody in connection with this charge. Icannot say anything because I do not know about this murder."
In the petition of appeal filed the main grounds urged are
That the weaknesses of the prosecution case and thefacts favourable to the accused have not been put tothe Jury,
The circumstantial evidence led was not sufficient toprove a case of murder against the accused-appellant;
The evidence led is consistent with the innocence ofthe accused-appellant:
These grounds of appeal are not warranted in the light of thecharge made by the learned Trial Judge to the Jury. The learned
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trial Judge has adequately directed the Jury on all mattersfavourable to the accused-appellant, which matters were reallysome contradictions of the statements made by witnesses toInspector Sugunendran. The learned trial Judge had asked theJury to consider those contradictions and evaluate the evidenceThe learned trial Judge had adequately charged the Jury on thebasis that this was a case based on circumstantial evidence, anddirected the Jury in what manner the Jury should consider thecircumstantial evidence. There are no grounds for any complaintby the accused-appellant as regards the matters urged in thepetition of appeal.
Learned Assigned Counsel for the accused-appellant urgedtwo new grounds of appeal, which are substantial and worthy ofconsideration by this Court. Even though those two grounds ofappeal which I will refer are not contained in the petition ofappeal. I will consider the new grounds, as those grounds aresubstantial and worthy of consideration, as the accused-appellant has been defended by an Assigned Counsel, thepetition of appeal has been filed by him. and as the accused-appellant has been found guilty of murder. The learned counselfor the accused-appellant submitted —
(la)That the statements of the deceased Hemapala madeto Stephen and Lukshman Ranatunga. which were ledin evidence were inadmissible under Section 32 of theEvidence Ordinance;
(lb)Even if the statements came within the purview ofsection 32 of the Evidence Ordinance, those werestatements pertaining to the motive of the accused-appellant and as such inadmissible ;
The learned trial Judge has not adequately directed theJury on the law pertaining to the manner in which theJury should consider the unsworn statement made bythe accused-appellant from the dock.
As regards the grounds of appeal pertaining to (1 a) & (1 b). thelearned Senior State Counsel admitted that the learned trial
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Judge's charge does not contain any direction as to the lawpertaining to admissibility and credibility of a statement made bythe deceased. The charge to the Jury, does not contain anydirections pertaining to the admissibility of a statement made bya deceased in terms of section 32 of the Evidence Ordinance.Section 32(1) of the Evidence Ordinance is as follows
"Statementsof relevant facts made by a person
who is deadare themselves relevant facts in
the following cases
When the statement is made by a person as to the cause ofhis death, or as to any of the circumstances of thetransaction which resulted in his death, in cases in whichthe cause of his death comes into question".
"Such statements are relevant whether the person who madethem was or was not, at the time when they were made, underexpectation of death, and whatever may be the nature of theproceedings in which the cause of his death comes intoquestion". Learned counsel based his submissions, only on thefirst limb of section 32(1) — "Statement made by a person as tothe cause of his death". His argument appeared to be that thestatements made by the deceased elicited from Stephen andRanatunga, did not pertain to the cause of Hemapala's death, butthat those statements were pure and simple statementspertaining to the motive of any person, who would havemurdered Hemapala and thus inadmissible. In making thissubmission, the learned counsel had lost sight of the other limbof this section, which is the relevant limb in the instant of the
present case "or as to any of the circumstances of the
transaction which resulted in his death". These statements led inevidence are admissible in terms of this limb, as it relates to thetransaction, which resulted in Hemapala's death to wit
That the accused-appellant had attempted anhomosexual act; and
That the deceased had retaliated by giving himblows.
Somasiri v. Attorney-General (Seneviratne. J.)
In the case of King v. Marshal Appuhamy (1) the appellant wascharged for murder of one Elizabeth on September 19. 1949.'The principal witness for the prosecution Ana Maria, the motherof the deceased said that about 2 or 3 days prior to the murderthe deceased complained to her that the appellant made animproper suggestion to her. that she did not agree to it. and thatshe did not want him to come to the house". After this complaintby the deceased, she told the appellant not to come to herhouse. It was after she told so that Elizabeth was murdered bythe appellant. The main point argued in this appeal was that thestatement made by the. deceased to Ana Maria was notadmissible in evidence under section 32(1) of the EvidenceOrdinance. In this appeal. Jayetilleke, S.P.J.. held as follows
'The transaction in this case is one in which the deceasedwas murdered on September 19, 1949. The transactioncannot be restricted to the physical cause of death. Ifevents prior to the death can be taken into account, thetransaction would include the connected events whichculminated in death. Whether there is a proximaterelation between the commencement of the transactionand the ending thereof is a matter to be determined onthe facts of each case. Here, there is a clear connectionbetween, the complaint made by the deceased, thewarning given by Ana Maria to the appellant and theactual stabbing."
In the instant case before us. there is a close proximitybetween the transaction spoken to by the deceased Hemapala toStephen and Ranatunga' and the time Hemapala the deceasedwas found injured. As such, the evidence pertaining to thestatements made by Stephen and Ranatunga are admissible inevidence "as the circumstances of the transaction which resultedin the death" of Hemapala. The two statements of the deceasedled in evidence have not been led to prove a motive alone. Proofof a statement of a deceased to prove motive would beinadmissible evidence under section 32(1) of the EvidenceOrdinance — (C. C. A.) — H. S. Perera v. Queen (2) followed theunreported case — Queen v. Stanley Dias (3).
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The learned trial Judge has also not directed the Jury fully asto the manner in which statements of the deceased should beconsidered, to determine the credibility. He has not directed theJury that such statements are hearsay evidence, and statementswhich, cannot be subjected to and tested by cross-examination.As such statements made by the deceased must be consideredsubject to those infirmities. Learned trial Judge has also notdirected the Jury to consider whether there is other independentevidence to corroborate the statements of the deceased person.
In the case of Somasundaram v. Queen, (4) Samarawickreme, J.— sets out some of the directions that should be given to theJury by a trial Judge in respect of the admission of a statementmade by a deceased under section 32(1) of the EvidenceOrdinance. He states as follows
"That the Jury are always to be cautioned as to theinherent weakness of this form of hearsay evidence —vide The King v. Asirvadan Nadar (5) — (51 N.L.R. 322 at324) and Justinpala v. The Queen (6) (66 N.L.R. 409).Further, a presiding Judge should caution the Jury as tothe risk of acting upon the statement of a person who isnot a witness at the trial and as to the need to considerwith special care the question whether the statementcould be accepted as true and accurate — vide Queen v.Anthonypillai (7) (69 N.L.R 34)." I
I have anxiously considered whether these non-directions havecaused any prejudice to the accused-appellant. In the presentcase. I am of the view that the non-direction as to the manner inwhich evidence relevant to section 32(1) of the EvidenceOrdinance has to be considered, has not caused any prejudice tothe accused-appellant’s case. Stephen and Ranatunga areindependent witnesses. There is no indication whatsoever, norhas it been even suggested by the accused-appellant that theybore any enmity or prejudice to the accused-appellant. Further,the deceased's statements are corroborated by the evidence ofSiripala. Stephen and Ranatunga. that the accused-appellant and
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the deceased Hemapala used to sleep at night on the Carpenter'sBench, and that they were close friends and companions, thussuggesting a homosexual relationship between the two.
The next submission made by the learned counsel for theaccused-appellant is that the learned trial Judge has notadequately directed on the law pertaining to the consideration asevidence an unsworn statement made by the accused-appellantfrom the dock. The learned trial Judge has directed the Jury asfollows : regarding the accused's statement from the dock —'Theaccused's statement is evidence in this case. But he did not getinto the witness box and subject himself to cross-examination. Assuch this statement is not as-strong evidence as evidence givenfrom the witness box. But still it is evidence. You should considerthe statements made by the accused". This only direction on thismatter though not a fully complete direction has adequately inthe circumstances of this case directed the Jury, how the Juryshould consider the statement made from the dock by theaccused-appellant. The accused-appellant's statement was abare denial, as such this direction alone would cause noprejudice to the accused-appellant. His statement has not thrownany light on his own conduct that night, as for example — he wasfound missing from where he slept on the night at the time thedeceased was found with cut injuries, nor does it in any wayaffect the facts narrated by the prosecution witnesses. In anycase, it has to be stated that this direction is not as complete as itshould have been. In the case of Queen v. Kularatne (8) ajudgment of the full Court — (C.C.A.) — has laid down the law asfollows : "We are in respectful agreement, and are of the viewthat such a statement must be looked upon as evidence subjectto the infirmity that the accused had deliberately refrained fromgiving sworn testimony, and the Jury must be so informed. Butthe Jury must also be directed that —
If they believe the unsworn statement it must beacted upon ;
ff it raised a reasonable doubt in their minds aboutthe case for the prosecution, the defence mustsucceed; and
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That it should not be used against another accused.
& (b) above are the two matters relevant to this case on whichthe learned Judge should have directed the Jury in this instant.Though, the learned trial Judge has directed the Jury to considerthe statement as evidence, he has not directly told the Jury that ifthey believe the unsworn statement of the accused-appellant,that it must be acted upon, and that if his statement raised areasonable doubt in the minds of the Jury, the accused is entitledto be acquitted. But on the facts of this case, I hold that theabove non-direction has not caused any prejudice to theaccused-appellant.
The learned Senior State Counsel strenuously submitted thatthere was another compelling fact against the accused-appellant,which the learned trial Judge has not touched upon, on which,he invited this Court to act as an additional item of evidence toestablish the guilt of the accused-appellant. Learned Senior StateCounsel stated that the prosecution has built up a case, factsand circumstances against the accused-appellant, a case whichcalled for an explanation from him. as regards facts andcircumstances within his own knowledge and which he can onlyexplain. The accused-appellant has chosen not to offer suchexplanation, and that conduct of the accused-appellant must beused as one of the facts against the accused-appellant inconsidering his guilt. The learned Senior State Counsel basedthis submission on the most recent decision of the SupremeCourt in the case of — The Attorney General, v. NallanthambiThevanayagam Pil/ai. (9) (Unreported). Though there is muchforce in the argument of the learned Senior State Counsel, thatthe trial Judge has not directed the Jury, on the aspect submittedby the learned Senior State Counsel, I am of the view that at thisstage of the case, it would not be fair and just to hold thatprinciple of law against the accused-appellant and to takeaccused-appellant unawares. I
I hold that on the totality of the evidence led against theaccused-appellant, the Jury could not have come to any otherconclusion, than the one and only irresistible conclusion that onthis circumstantial evidence the accused was guilty of the
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offence of murder of Hemapala. I have pointed out the non-directions in the charge to the Jury. This is an instance in whichthis Court should act on the proviso to section 334(1) Code ofCriminal Procedure Act No. 15 of 1979, and hold that"notwithstanding that it is of opinion that the point raised in theappeal might be decided in favour of the appellant, dismiss theappeal if it considers that no substantial miscarriage of justicehas occurred". The trial Judge has directed the Jury to consider averdict of both murder and culpable homicide not amounting tomurder on the basis of knowledge. The Jury having consideredthe directions brought a verdict of murder. It is, quite clear thatthe Jury brought this verdict having come to the conclusion onthe circumstantial evidence that the accused-appellant has usedthe weapon axe (P2) and intentionally caused the death ofHemapala. There is no reason to interfere with the verdict ofmurder. Though, there have been non-directions in the charge. Iam of the view that "no miscarriage of justice" has occurred, norhas the verdict "occasioned a failure of justice". For the reasonsset out above, I affirm the verdict of the Jury and the sentencepassed on the accused-appellant. The appeal is dismissed.
ABEYWARDENE. J.-l agree
P. S. DE SILVA, J.-l agree.