SUNIL v. ATTORNEY-GENERAL

026-SLLR-SLLR-1999-V-3-SUNIL-v.-ATTORNEY-GENERAL.pdf


CA
Sunil v. Attorney-General
191
SUNIL
v.ATTORNEY-GENERAL
COURT OF APPEAL.
JAYASURIYA, J.,
KULATILAKE, J.
C.A. No. 53/97.
C. COLOMBO No. 897/93.
NOVEMBER 19. 26. 1998.
DECEMBER 9. 1998.
MARCH 3. 4, 1999.
Bribery charges – Is corroboration necessary ? – Testimonial trustworthiness.Held:
It is trite law that the trial Judge who hears a bribery trial is entitled toconvict on the sole testimony of a prosecution witness without any cor-roboration provided he is impressed with the cogency, convincing characterof the evidence and the testimonial trustworthiness of the sole witness.
2. It is an incorrect statement of the law to hold that a reasonable doubtarises on the mere fact that the prosecution case rested on the uncor-roborated evidence of a solitary prosecution witness.
Per JAYASURIYA, J.
“There appears to be a misgiving among trial Judges in bribery court thatthe testimony of a witness in bribery prosecution is required to be corroboratedbefore it could be acted upon; such a proposition is a manifest error of law."
APPEAL from the judgment of the High Court of Colombo.
Cur. adv. vult.
192
Sri Lanka Law Reports
[1999j 3 Sri LR.
Cases referred to:
Attorney-General v. Gunasekera – 79(1) NLR 348at 355.
Attorney-General v. Visvalingam – 47NLR286.
State of Uttar Pradesh v. Anthony -1985AIR SC48.
Jagathsena v. Bandaranayake – [1984] 2Sri LR.397.
Bharwada Bhoginbhai Hirijibhai v. State of Gujarat – 1983 AIR (SC) 753at 755.
Samaraweera v. Republic – [1991] Sri LR. 256-260.
APPEAL from the High Court of Colombo.
Cur. adv. vult.
Dulinda Weerasuriya for accused-appellant.
V. K. Malalgoda, SSC, for Attorney-General.
March 04, 1999.
JAYASURIYA, J.
We have heard both, learned counsel for the accused-appellant andlearned Senior State Counsel on several dates of hearing. Learnedcounsel for the appellant has drawn our attention to certain incon-sistencies, contradictions inter se between the evidence of the virtualcomplainant and the evidence given by two bribery officials who tookpart in this raid. There have been also certain contradictions markedin relation to external indicia. It is in relation to a statement madeto the bribery officials. Learned counsel impressed upon us that theseofficials of the Bribery Department are trained and experienced wit-nesses and therefore Court has to be very careful in the assessmentof their testimony and adopting the words of Justice Vaithiyalingamin Attorney-General v. Gunasekera°> at 355 he has submitted that noamount of cross-examination could shake their testimony in regardto the acts of solicitation and acceptance of bribes.
Sunil v. Attorney-General (Jayasuriya, J.)
193
CA
We agree with the observation made by Justice Vaithiyalingam inAttorney-General v. Gunasekera (supra) and we are mindful thatbribery officers could be partisan or interested witnesses. Their tes-timony must inspire confidence in a Court before such evidence couldbe acted upon and their testimony must be viewed with care andcaution by all Courts. Nevertheless, the Court must not be unmindfulof the fact that they are human witnesses and it is a hall mark ofhuman testimony that such evidence is replete with mistakes, inac-curacies and misstatements. Though one has to be careful in theassessment of evidence given by the bribery officers, the Court hasto be equally mindful of the fact that the evidence tendered by humantestimony will suffer from certain deficiencies and defects. It is in thislight that Justice Cannon in Attorney-General v. Visuvalingarri2)emphasised that no prudent and wise Judge would disregard testimonyfor the mere proof of a contradiction but that a wise Judge shouldcritically assess and evaluate the contradiction. He emphasised "theJudge must give his mind to the issues what contradictions are materialin discrediting the testimony of a witness. The Judge should pointedlydirect his attention to this fundamental issue and also consider whetherthe witness has been given an opportunity of explaining thosestatements which are marked as contradictions – Attorney-General v.Visuvalingam (supra). In the Indian decision of State of Uttar Pradeshv. Anthony(3}: "the danger of disbelieving an otherwise truthful witnesson account of trifling contradictions has been spotlighted. The IndianJudge observed that the witness should not be disbelieved on accountof trivial discrepancies especially where it is established that thereis substantial reproduction in the testimony of the witness in relationto his evidence before the Magistrate or in the session Court andthat minor variation in language used by witness should not justifythe total rejection of his evidence".
In this prosecution the trial Judge arrived at a considered findingin favour of the testimonial trustworthiness of the witness, after carefullyevaluating and analysing contradictions, omissions proved before him.Thus, the all important factor of the demeanour, and deportment ofthe witness has also helped the trial Judge to come to this conclusion.
194
Sri Lanka Law Reports
[1999] 3 Sri LR.
In Jagathsena v. Bandaranayakd4) Justice Colin-Thome gave his mindto contradictions of inter se proved between the testimony of twowitnesses. His Lordship in evaluating those contradictions raised thefollowing question: “Was the discrepancy due to dishonesty or todefective memory or whether the witness' powers of observations werelimited" and thereafter His Lordship observed in evaluating evidenceone must give due consideration to the all important factor of thedemeanour and deportment of the witness. Certainty, this trial Judgewho has arrived at a finding in regard to the testimonial trustworthinessof the prosecution witness, has been greatly influenced by the de-meanour and deportment of the witnesses before him. Justice Thakkarin a very instructive judgment, relying on human psychology andrelying on his vast experience in the trial Court, has laid down certainimportant principles which ought to guide any Court in the evaluationof testimony adduced before it. Having indulged in that exercise hefinally observed that discrepancies which do not go to the root of thematter and shake the basic version of the witnesses therefore, cannotbe annexed with undue importance: Bharwada Bhogindhai Hirjibhaiv. State of Gujarat^ at 755. In Samaraweera v. Republic. The Courtof Appeal placing reliance on passages from Indian treatises andfollowing dicta laid down in Indian judgments has raised some issueswhich any Court ought to consider – Whether the discrepancy intestimony is due to dishonesty or to human defects or due to anembroidery indulged in by the witness and the latter situation doesnot justify the rejection of his testimony. Having regard to theseprinciples, we are of the view that the contradictions and omissionsspotlighted by counsel for appellant do not justify an adverse inferencebeing drawn in regard to the testimonial trustworthiness of the wit-nesses. In fact, the trial Judge, although he has acquitted the accusedon all charges except the third count of the indictment has given thefollowing reasons for the acquittal of the accused on the other counts.Learned trial Judge states thus:
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CA
Sunil v. Attorney-General (Jayasuriya, J.)
195
With all respect to the learned trial Judge we hold that the reasonstrotted out by him creating a reasonable doubt and acquitting theaccused in respect on count 1 and count 2 do not stand examinationbefore this Court. For it is trite law that the trial Judge who hear abribery trial is entitled to convict on the sole testimony of a prosecutionwitness without any corroboration provided, he is impressed with thecogency, convincing character of the evidence and the testimonialtrustworthiness of the sole witness who has given evidence beforehim. There appears to be a misgiving among the trial Judges in briberyCourt that the testimony of a witness in bribery prosecution is requiredto be corroborated before it could be acted upon. Such a propositionis a manifest error of law. Vide the remarks of Justice Vythialingamin Gunasekera v. Attorney-General (supra). Thus, it is an incorrectstatement of the law to hold that a reasonable doubt arises on themere fact that the prosecution case rested on the uncorroboratedevidence of a solitary prosecution witness. In the circumstances wehold that the reasons adduced by the learned trial Judge for acquittingthe accused on counts 1 and 2 are wholly untenable and unsustainablein law. It is manifest on a reading of the judgment that after criticallyevaluating contradictions and discrepancies the learned trial Judge hasarrived at a favourable finding in regard to the testimonial trustwor-thiness of the prosecution witnesses. In these attendant circumstances,it is futile for learned counsel for the appellant to contend that thelearned trial Judge had misgivings and doubts in regard to the tes-timonial trustworthiness and the cogency of the evidence adduced bythe prosecution witnesses.
We are unable to agree with the learned counsel for the appellantthat the contradictions and omissions spotlighted by him in the courseof his submissions created any doubt in regard to testimonial trust-worthiness of the prosecution witnesses and we hold that thesewitnesses have given convincing, cogent and overwhelming evidencein regard to the material facts relating to this prosecution.
At this stage we were intent on enhancing the sentence imposedon the accused-appellant as the bribery is a cancer in all Government
196
Sri Lanka Law Reports
(1999] 3 Sri LR.
Institutions including the Court offices which are supposed to beinstitutions in temples of justice. In the circumstances, the deterrentpunishment is merited where such offences are proved beyond thereasonable doubt. However, due to the persuasive and cogent sub-missions made by learned counsel for the appellant, we are reluctantlyinduced to desist from taking such action. Having considered hissubmissions we merely vary the sentence in limiting the operationalperiod of the suspended sentence of imprisonment imposed to a termof five years with effect from 27. 01. 1997.
Subject to this variation in the operational period of the suspendedsentence, we dismiss the appeal.
KULATILAKE, J. – I agree.
Appeal dismissed.
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