039-SLLR-SLLR-2003-1-THE-ATTORNEY-GENERAL-v.-BARANAGE.pdf
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THE ATTORNEY-GENERAL
v.BARANAGE
COURT OF APPEALFERNANDO, J., ANDAMARATUNGA, J.
CA101/98H.C. (Rev) 61.98H.C. COLOMBO 8902/97MAY 22, 2002
Penal Code – Indictiment – Sections 356 and 380 of the Code – After prose-cution closed its case High Court acquitted and discharged accused, withoutcalling for his defence – Validity – Code of Criminal Procedure, sections200(1) and 220(1) – Administration of Justice Law, No 44 of 1973, section212(2) – Criminal Procedure Code of 1898 compared – Is there a miscarriageof justice? – What is meant by “No Evidence" ? – Evidence Ordinance, section157.
After the prosecution closed its case against the accused, the trial judge act-ing under section 200(1) of the Code of Criminal Procedure Act acquitted anddischarged the accused without calling for his defence. The Attorney-Generalappealed against the acquittal.
Per Ameratunga, J.
“A practice has developed in our law to consider a submission of ‘NoEvidence’ at the virtual end of the prosecution case even though it hasnot reached its terminal end. This practice is applicable not only to trialsbefore a jury but also to trials by a judge without a jury.”
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In a trial by a judge without a jury, the judge Is the trier of facts and assuch at the end of the prosecution case in order to decide whether heshould call upon the accused for his defence he is entitled to considersuch matters as the credibility of the witness, the probability of the pros-ecution case, the weight of evidence and the reasonable inferences tobe drawn from the proven facts.
Having considered those matters, if the judge comes to the conclusionthat he cannot place any reliance on the prosecution evidence, then theresulting position is that the judge has wholly discredited the evidence forthe prosecution. In such a situation the judge shall enter a verdict ofacquittal.
The true rule is that where the judge concludes that the evidence, evenif believed by the jury and the legitimate inferences therefrom do not per-mit a conclusion of guilt beyond reasonable doubt to a reasonable jury-man, he must direct an acquittal.
Per Ameratunga, J.
“In an appeal against an acquittal on a question of fact the prosecu-tion has a heavy burden to discharge. Such an appeal could only be jus-tified if there had been a palpable misdirection by the judge when con-sidering the facts of the case which could be demonstrated to be wrongon the very face of the record and which had in effect resulted in a mis-carriage of justice."
APPEAL from an order of acquittal of the High Court of Colombo.
Cases referred to:
flv Galbraith.(W81) 2 All ER 1060Crim Ap. Reports 124
Ft v Hipson (1969) Crim Law Rev. 85
Queen Empress v Vajiram – (1892) 16 Bombay 414
Pauline de Croos v Queen – 71 NLR 169
Attomey-GenereA v Gunawardena (1996) 2 Sri LR 149
Attorney-Generalv Ratwatte – 72 CLW 92
Curly v United States – 81 US App D.C. 389
S.C. 66/67 – M.C. Colombo 34638/A
R. v Shippy (1988) Crim Law Rev. 767
P.P. Surasena, State Counsel for Attorney-General
Dr. Ranjith Fernando with Sandamalee Munasinghe, Sandamalee Manatunga
and Kavindra Nanayakkara for accused respondent.
Cur. adv. vult.
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June 12, 2003
GAMINI AMARATUNGA, J.
This is an appeal filed by the Attorney-General against theacquittal of the accused-respondent (hereinafter called theaccused) by the learned High Court Judge of Colombo after trialbefore the High Court without a jury. The accused and two otherswere charged before the High Court on indictment which containedthe following counts.
That on or about 29th September 1995 at York Street within the juris-diction of this Court, you, the accused abovenamed did abductNyambu Sethuram in order to wrongfully confine him and that you arethereby guilty of an offence punishable under section 356 of the PenalCode.
That at the time and place aforesaid and in the course of the sametransaction, you did commit robbery of cash Rs.2,24,700/- and a bracelet valued at Rs. 18,000/- which was in the pos-session of the said Sethuram and that you are thereby guilty of anoffence punishable under section 380 of the Penal Code.
At the trial held before a Judge of the High Court sitting with-out a jury the prosecuting counsel at the end of the prosecutioncase informed the judge that the prosecution did not wish to pro-ceed against the 2nd and 3rd accused and thereupon both of themwere acquitted and discharged. After the prosecution closed itscase against the accused, the learned trial Judge acting under sec-tion 200(1) of the Code of Criminal Procedure Act acquitted anddischarged the accused without calling for his defence. This appealhas been filed against the acquittal.
The case against the accused depended on the evidence ofthe said Sethuram, particularly on his evidence regarding the iden-tification of the accused. His evidence at the trial was as follows. Hewas a broker and was also engaged in the business of buying andselling coconut oil. He had business dealings with a trading com-pany called Wimal Stores. On 29/9/1995 when he visited WimalStores the proprietor of that firm gave him a cheque to be encashedat the Bank. It was a cheque for Rs. 2,24,700/- received by himfrom a customer and given to Wimal Stores two days ago. He tookthe cheque to the Commercial Bank branch at Bristol Street,
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Colombo and encashed it. He then came out of the bank with thebundle of money and signalled a three wheeler to stop. As the threewheeler came to a halt in front of him, a car which came from theopposite direction stopped between him and the three wheeler.
This car was a Mitsubishi Lancer car and the word POLICEappeared on the adjustable sunwiser behind the front windscreen.Then left front door of the car was opened and *it that stage hesensed that there was a person just behind him outside the car.That man then said to the person who was in the driver’s seat “Sir,this is the man”. The person in the driver’s seat was in police uni-form and from his braided cap Sethuram identified him as anAssistant Superintendent of Police. Then that person asked forSethuram’s identity card. When it was given to him he examined itand asked Sethuram whether he was a dealer of drugs. Sethuraminformed that person that he was engaged in the business of sell-ing coconut oil. Then he was asked to get into the car and he gotinto the left front seat. The person who was behind him also got intothe rear seat and at that time there was another person in the rearseat. Then the car was driven past the Telecom and the LakeHouse buildings and through Slave Island towards Borella. On theway Sethuram was asked to hand over the parcel of money and hehanded it over to a person who was in the rear seat. Thereafter hewas asked to remove and hand over his gold bracelet and the wrist-watch. He complied with that command too. Sethuram has not stat-ed whether it was the accused or the other persons who asked himto do those things.
He was also told that a person had given information to thepolice about him and that they wanted to show him to that person.He was told that if that person does not identify him he would bereleased. Near the Castle Street hospital the car was sopped andhe was asked to get into the rear seat. After he changed the seatthe car was driven towards the Diyawanna Oya. At one point thecar was stopped and Sethuram was asked to go behind somebushes which were there on the side of the road. Whilst behind thecover of the bushes he was asked to remove his shirt and slacks.After he removed his clothes he was dressed only in his underwear.At that stage the person who drove the car came to that spot. Hewas without his tunic at that time and was wearing a long sleeved
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banian. He had a pistol in his waist. At that point Sethuram realizedthat they were going to rob him. He was asked to sit on the ground.Then he pleaded with them not to do any harm to him. At that timethe person who had the pistol put two bullets into it and placed itagainst Sethuram’s forehead. Just then one of the other personssaid that a cycle was coming and the person holding the pistollooked in that direction. Taking advantage of this slight diversion ofattention of the gunman Sethuram started to run. The gunman triedto grab him but as Sethuram did not have any clothes on his bodythat attempt did not succeed. Whilst running along the roadSethuram saw a passing police jeep and signalled to it but it tookno notice of him. He eventually ran to a house and asked theinmates to help him. They gave him a sarong and later took him tothe Thalangama police station where he made his complaintaround 4 p.m.
In Court Sethuram has identified the 1st accused as the per-son who drove the vehicle on that day. He has stated that he hasidentified him earlier at an identification parade held in Court. At thetrial before the High Court the defence has consented to accept thenotes of the identification parade without calling evidence to proveit. These notes marked P3 are not attached either to the caserecord of the High Court or to the Magistrate’s Court case recordattached to the High Court record.
At the trial before the High Court Sethuram was shown a goldbracelet and he has identified it as the bracelet taken from himwhen he was being taken in the car. That bracelet had letters SMJengraved on it which denotes the jewellery shop – Sri MaithilyJewellers. – from which he has purchased it. It appears from, theevidence given by Sethuram that on the same day in the night hehas given a statement to the Fort police. It is not clear fromSethuram’s evidence as to what steps have been taken by theThalangama police after recording his statement and the circum-stances under which he happened to go to the Fort police stationon the same day. It is clear from Sethuram’s evidence that theaccused was not known to him before the date of the incident. Hehas not seen or noted the number of the car in which he was takento the vicinity of the Diyawanna Oya. It is therefore pertinent toexamine the circumstances under which Sethuram came to
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identify the accused as the police officer who drove the car in whichhe was taken.
According to Sethuram’s evidence given under cross exami-nation he has stated in no uncertain terms that before he picked outthe accused at the identification parade, he has seen the accusedat the Slave Island police station. He has stated that one day hesaw a person like the accused riding a motor cy«le and he hasnoted the number of the motor cycle. He went to the Slave Islandpolice station to inform the police about this fact. However he hasnot stated in his evidence that he has informed any police officerabout seeing a person like the accused riding a motor cycle or thathe gave the number of the motor cycle to the police. He has notgiven even the date on which he visited the Slave Island police sta-tion. In his evidence Sethuram has stated that one day, in the morn-ing, when he was at the Slave Island police station he saw theaccused entering the police station. At that stage he has informeda police officer that that was the person who abducted him. Thepolice officer, has told him that it was their ‘loku mahattaya’. TheCourt has specifically asked Sethuram whether the police arrestedthe accused after he pointed him out and the reply of Sethuramwas that the police officer has asked him to go away without tellinglies. The witness has not stated that he has informed any higherpolice officer that the person who has abducted him has come intothe police station.
In his evidence Sethuram has stated that he has met oneUdayapala an ASP and one Prasad, also an ASP at the SlaveIsland police station and that he was taken to Jagath Jayawardena,SP and DIG Kotakadeniya. He has not given the dates on which hemet those officers and has not explained under what circumstanceshe met or was taken to those officers. He has not given details ofwhat happened at those meetings. In cross examination Sethuramhas stated that on one occasion when he met ASP Udayapala thename Baranage was mentioned but he has not stated who men-tioned that name under what circumstances or for what purpose.The details about the circumstances under which Sethuram cameto meet those high ranking police officers; the contents of their con-versations with Sethuram and the instructions, if any, given bythose police officers to Sethuram become significant in view of the
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suggestion made by the defence in cross examination of Sethuram.It was the suggestion of the defence that in view of the accused’srefusal to give evidence against another police officer he hasincurred the displeasure of a high ranking police officer and that thisallegation had been framed up against the accused due to that dis-pleasure. In view of this suggestion made in cross-examination ithas become necessary to elicit details about the number ofSethuram’s visits to the Slave Island police station and specificdetails about his meetings with the high ranking police officersnamed by him but the prosecuting counsel has not taken any stepsto clarify those matters in re-examination by Sethuram. From themass of details given in cross-examination by Sethuram one can-not piece together a coherent account which flows according to alogical and chronological sequence explaining the circumstancesunder which Sethuram came to identify the accused after the dateof the incident and before the date of the identification parade heldon 1/12/1995, two months after the incident. The defence counselby his cross-examination has succeeded in eliciting a mass ofdetails creating confusion regarding the proper sequence of eventsfrom the date of the incident up to the eventual identification of theaccused. The prosecuting counsel has not made any attempt in re-examination to place those details in their proper perspective tomake Sethuram’s account of what happened after the date of theincident to make that account coherent and logically intelligible.After reading Sethuram’s evidence one cannot clearly ascertainhow and by what gradual steps Sethuram came to pick and pointout the accused as the person who abducted him on 29/9/95. Itappears that at the end of Sethuram’s evidence the prosecutor wascontent to rest his case on Sethuram’s assertion that he identifiedthe accused at the identification parade as the person who abduct-ed him on 29/9/1995. The evidence with regard to the recovery ofthe gold bracelet did not in any way connect the accused to thatbracelet. The letters SMJ engraved on the gold bracelet was notproof that the bracelet belonged to Sethuram as those letters^referred to the identity of the maker of the bracelet. Thus, at the endof the prosecution case, the case against the accused solelydepends on the complainant’s evidence regarding the identificationof the accused at the parade.
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In a case depending on the sole testimony of a witness givenrelating to the visual identification of the accused, not only thosematters relevant to support his evidence regarding identification butalso evidence relating to the happenings of the event are materialin considering the reliance to be placed on the sole witness’s evi-dence. According to Sethuram near the Diyawanna Oya he wasordered to undress and at the time he fled from the scene he waswearing only his underwear. The inmates of the house to which heran would have been the best witnesses to say that Sethuramappeared at their doorstep dressed only in an underwear. This evi-dence would have corroborated Sethuram’s contention that he wasasked to remove his clothes by his abductors. However no suchevidence was led by the prosecution.
After recording Sethuram’s complaint the police could havegone with him to the spot where he was asked to undress andrecorded their observations relating to that place. This evidencewould have provided corroboration of Sethuram’s account by show-ing that there was in fact a place covered by bushes to give anopportunity to get Sethuram to undress by the side of the road inbroad daylight without being seen by the passers by. But no suchevidence from the police was led and Sethuram has not stated thathe has shown that place to the police. The two matters I have setout above would have provided corroboration for Sethuram’saccount relating to the incident.
With regard to the evidence of identification the following evi-dence would have been relevant and material. When a personmakes a complaint about an offence committed by a person whowas not known to him before, it is a normal police practice to elicitfrom the complainant and include in the complaint a description ofthe appearance of the offender. A first complaint containing suchmaterial is admissible under section 157 of the EvidenceOrdinance to support the complainant’s testimony in court. Suchmaterial contained in a first complaint produced in evidence wouldhave given an opportunity to a trial Judge to compare whether theappearance of the accused present before Court agrees with thedescription given in the first complaint. But no such evidence wasled by the prosecution.
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The witness has stated that the police car in which he wastaken was a Mitsubishi Lancer. There was no police evidencewhether on the date of the incident the accused had been using acar which fits into that description. The police could have checkedthe movements of the accused and of his car on the date of the inci-dent to show that opportunity was available for him to participate inthe alleged acts but no such evidence was placed before Court.
Inspector Linton who has taken over the investigation relat-ing to Sethuram’s complaint has taken charge of the accused fromthe C.D.B. headquarters on 12/11/1995. At that time the accusedwas being detained in the C.D.B.headquarters under EmergencyRegulations. No evidence has been led to show why the accusedhad been arrested and for what offence and on what material.Therefore the reason and the place of arrest of the accused wasnot before Court. The prosecution could have very easily led thisevidence but no such evidence was led.
Inspector Linton in his evidence has stated that at the time hetook steps to get an identification parade held to enable the com-plainant to identify the accused he was not aware that the com-plainant has already seen the accused at the Slave Island policestation. He has stated that according to the notes he has subse-quently received from the Slave Island police, on 3/11/1995 thecomplainant on the instructions of the police has gone to the SlaveIsland police station and whilst being at the police station has iden-tified the accused who was seen inside the police station. This evi-dence given by I.P. Linton from the notes of the officers of the SlaveIsland police station was hearsay evidence. In view of the impor-tance of this evidence the prosecution should have called thosepolice officers who were present at the time the complainant wassaid to have identified the accused at the police station. It appearsfrom Linton’s evidence that the accused was arrested at the SlaveIsland police station and at that time he was attached to that policestation. Before that he had been attached to the Police TrainingSchool. No. evidence had been led to show the date on which theaccused had been transferred to Slave Island. According to Linton,on the day the accused was identified at the police stationSethuram has gone there on the instructions of the police. No evi-dence has been led by the prosecution to show who was the police
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officer who instructed Sethuram to visit the Slave Island police sta-tion on 3/11/1995. There was no evidence to explain the purposefor which Sethuram was summoned to the police station on thatday. No evidence was led from police officers who had been pre-sent at the time the complainant was said to have identified theaccused at the Slave Island police station. This evidence wouldhave been very vital and material to the prosecution case and suchevidence would have explained a lot of matters* which remainedunexplained at the end of the prosecution case.
Thus at the end of the prosecution evidence the case againstthe accused rested only on the complainant’s evidence that heidentified the accused at an identification parade held in Court, butthe value of this evidence was much impaired by Sethuram’sadmission that before the parade he has seen the accused.
After the prosecution case was closed, the learned trialJudge, apparently acting under the provisions of section 200(1) ofthe Code of Criminal Procedure Act, has acquitted the accusedwithout calling for his defence. According to the reasons later givenby the Judge he has acquitted the accused on the basis that thecomplainant’s evidence regarding the identification of the accusedwas not reliable.
Section 200(1) of the Code of Criminal Procedure Act is asfollows.
“When the case for the prosecution is closed, if the Judgewholly discredits the evidence on the part of the prosecution oris of opinion that such evidence fails to establish the commis-sion of the offence charged against the accused or of anyother offence of which he might be convicted on such indict-ment he shall record a verdict of acquittal; if however theJudge, considers that there are grounds for proceeding withthe trial he shall call upon the accused for his defence.”
This provision is identical to section 210(1) of CriminalProcedure Code of 1898 relating to trials before the District Courton indictment. This Court was unable to find any previous decisionwhich contains an authoritative interpretation of Section 210(1)which is similar to present section 200(1).
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In paragraph 7 of the petition of appeal it has been stated
that:
The trial Judge manifestly erred in law when he chose toacquit the accused without proper evaluation of the evi-dence in this case which established a case for the accusedto answer.
The learned trial Judge has not concluded that he whollydiscredits the evidence on the part of the prosecution whichis a sine qua non for an order of acquittal under section200(1) and therefore the order has been made without juris-diction.
The learned trial Judge has misdirected himself when herelied on the subjective assessment of evidence instead ofits objective assessment as required by aforesaid section200(1) in making the said order of acquittal.
In view of the above grounds set out in the petition of appealit is necessary to examine the nature of the Judge’s function undersection 200(1) and the scope of his power conferred by it. Before Ideal with it, it would be helpful and relevant to consider the provi-sions of section 220(1) of the Code of Criminal Procedure Act whichsets out the function of the Judge at the end of the case for theprosecution in a trial by jury. Section 220(1) reads as follows.
“When the case for the prosecution is closed if the Judge con-siders that there is no evidence that the accused committedthe offence he shall direct the jury to return a verdict of notguilty.”
This provision is similar to section 212(2) of theAdministration of Justice Law, No. 44 of 1973 and section 234(1) ofthe Code of Criminal Procedure Act of 1898. The situation contem-plated in section 220(1) is a situation referred to as ‘no case toanswer’. The Court of Appeal in England in the case of R vGalbraith, set out the following guidelines upon which a Judgeshould approach a submission that there is no case to answer.
(1) If there is no evidence that the crime alleged has been com-mitted by the accused the judge will stop the case.
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When there is some evidence but such evidence is of atenous character as for example because of inherent weak-ness or vagueness or inconsistency with other evidence:
Where the judge concludes that the prosecution case,taken at its highest, is such that a jury, properly directed,could not properly convict on it, it is his duty, on a submis-sion of no case being made to stop the c^pe.
Where however the prosecution evidence is such that itsstrength or weakness depends on the view to be taken ofthe reliability of a witness or other matters which are gener-ally within a jury’s province, and where on one possible viewof the facts there is evidence on which a jury could proper-ly conclude that the accused is guilty, then the judge shouldallow the matter to be tried by the jury.
The borderline cases should be left to the discretion of thejudge.
Guideline 1 set out above is similar to section 220(1) of theCode of Criminal Procedure Act. What is meant by no evidence?The terms ‘no evidence’ has been often referred to as “not a scin-tilla of evidence”. Coomaraswamy – The Law of Evidence Vol 2Book I page 269. In R v Hipsod2), it has been held that not onlymust the judge consider whether there is some scintilla of evi-dence, which in law could go to the jury, but also whether it wouldbe safe for a jury to convict on the evidence as it then stands. In theIndian case of Queen Empress v Vajiran0), it has been held thatthe term no evidence must not be read as meaning ‘no satisfacto-ry, trustworthy or conclusive evidence’. It will definitely include a sit-uation where the prosecution evidence has not taken the prosecu-tion case beyond a matter of conjecture or grave suspicion. It mayalso include a situation where the prosecution case has gonebeyond a mere matter of conjecture or grave suspicion and hasreached the realm of probability but the evidence is self contradic-tory, contrary to reason and common sense. In such a situation ifno reasonable person can place any reliance on such evidence,then it is a situation where there is no evidence. Sometimes theborder line between a situation where there is no evidence and asituation where there is evidence of a tenuous nature may be sothin. In such a situation, as was suggested in the case of Galbraith,
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it is matter to be decided by the judge according to his experienceand discretion.
The words used in section 220(1) are “When the case for theprosecution is closed”. A practice has developed in our law to con-sider a submission of ‘no evidence’ at the virtual end of the prose-cution case even though it has not reached its technical end.Pauline de Ccpos v the Queert4)-, Attorney General vGunawardena w.This practice is applicable not only to trials beforea jury but also to trials by a judge without a jury.
When one compares the words used in section 220(1) withthe words'in section 200(1) the difference of the words used is atonce noticeable. While the former section uses the words ‘ there isno evidence’ the latter section uses the words ‘the judge wholly dis-credits the evidence’. The words used in section 200(1) indicatethat the scope of the function and the power of a judge is wider thanthe power and the function of a judge under section 220(1). Thecase of The Attorney General v Ratwatte(& provides an exampleof a situation where the judge has wholly discredited the evidencefor the prosecution. The first accused in that case, at the time of thealleged offence, was the Private Secretary of the Prime Minister ofCeylon. He was indicted for accepting a bribe of Rs. 5000/-(givenin two instalments) as an inducement for. obtaining a grant of citi-zenship in terms of the Citizenship Act to a Malaysian national.According to the evidence of the prosecution witness, on the firstoccasion a sum of Rs.1000/- was openly given to the 1st accusedin his house and the latter, in the presence of other unknown per-sons who had come with the person who gave the bribe, has putthe money into his shirt pocket. Again two days later the same per-son has given Rs.4000/- to the first accused at the latter’s ances-tral house and even on that occasion the accused has openlyaccepted the money in the presence of persons unknown to him. Atthe end of the prosecution case the trial Judge, acting under sec-tion 210(1) of the Criminal Procedure Code of 1898, (which wassimilar to section 200(1) of the present Code) has acquitted the firstaccused without calling for his defence.
In his reasons the trial Judge has stated as follows. “On bothoccasions the 1st accused does not appear to have been in any-way hesitant about accepting the money. He does not appear tohave been anxious to conceal the acceptance from any person who
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may have seen it. He does not take the precaution even of accept-ing the money without being seen by the unknown persons. It can-not be said that he is unaware of the seriousness of the offence heis committing. He does not seem to care as to whether he is led intoa trap or not. I do not think any ordinary person would accept abribe in such a manner, least of all a person in the position of the1st accused who holds such a responsible post under theGovernment.” The learned trial Judge has therefore concluded that“no reasonable court can accept the oral testimony of Papuraj thatthis gratification was given to the 1st accused”. In appeal theSupreme Court accepted the correctness of this reasoning and dis-missed the appeal filed against the acquittal of the 1st accused.
In a trial by a judge without a jury the judge is the trier of factsand as such at the end of the prosecution case in order to decidewhether he should call upon the accused for his defence he is enti-tled to consider such matters as the credibility of the witnesses, theprobability of the prosecution case, the weight of evidence and thereasonable inferences to be drawn from the proven facts. Havingconsidered those matters, if the judge comes to the conclusion thathe cannot place any reliance on the prosecution evidence, then theresulting position is that the judge has wholly discredited the evi-dence for the prosecution. In such a situation the judge shall entera verdict of acquittal.
Even if the Judge has not wholly discredited the prosecutionevidence,the words that the Judge ‘is of opinion that such evidencefails to establish the commission of the offence charged against theaccused or of any other offence of which he might be convicted onsuch indictment’ give him the power to enter a verdict of acquittalwithout calling for the defence. It appears that the situation con-templated by the above quoted words is similar to Galbraith guide-line 2(a) set out in the earlier part of this judgment. I set out belowthe said guideline again.
“When there is some evidence but it is of a tenuous char-acter for example because of inherent weakness or vagueness orbecause it is inconsistent with other evidence;
(a) If the judge considers that the prosecution case, taken at
its highest, is such that a jury, properly directed, could not
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properly convict on it, it is his duty, on a submission of nocase being made to stop the case.
With regard to the phrase ‘the prosecution evidence taken atits highest’ it has been stated in R v Shippy (9), that the requirementto take the prosecution case at its highest did not mean “picking outall the plums and leaving the duff behind”. In the case of Curly vUnited Stated7^the proper approach has been more accuratelyput in the following words. “The judge must assume the truth of theGovernment’s evidence and give the Government the benefit of alllegitimate inferences to be drawn therefrom"(e mphasisadded).Even before Galbraith guidelines were formulated, theSupreme Court of Ceylon in 1967 dealing with a situation similar tothat set out in guideline 2(a) of the Galbraith guidelines has statedas follows. “The true rule in our opinion is that where the judge con-cludes that the evidence, even if believed by the jury and the legit-imate inferences therefrom do not permit a conclusion of guiltbeyond reasonable doubt to a reasonable juryman, he must directan acquittal”. Order of Court at Trial at Bar (®). A judge trying a casewithout a jury is also entitled to approach the evidence in the sameway before deciding to call for the defence of the accused. The crit-ical point in this boundary is therefore the existence or non-exis-tence of a reasonable doubt as to the guilt. The law recognizes thatthe scope of a reasonable mind is broad. If the evidence is suchthat a reasonable mind, properly directed must necessarily havesuch a doubt, the judge must acquit because no other result ispermissible in law.
In the present case, the trial Judge in his order has statedthat he has acquitted the accused as there was a doubt with regardto the identification. He has also stated that he has taken intoaccount the fact that the witness has seen the accused prior to theidentification parade. It is possible to interpret his words as mean-ing that he has wholly discredited the prosecution evidence. Thewords used in the Code of Criminal Procedure (Sinhala Act) are“gOJ<;23) oz5fec3 SSzrf <3^8c3s5 23>dzg e?g) 032558 S£ksSQazs>d6D6ao «§e3@j9»5®zsdsteafe)©.” The Sinhales words used by the trial Judge
in his order are “®gGe5 £3323580 G2s>GdS Sg^Qooo zs>jq)o g&>otojSi jSod ®o
SSzrf ®K|0 (§^2530) 0® 003^253300255 s9g^3c3625330 Z§5^29£3 23)dZD 0^. “ This
clearly indicates that the Judge has wholly discredited the prose-cution evidence.
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In the petition of appeal it has been stated that the learnedJudge has not concluded that ‘he wholly discredits the evidence onthe part of the prosecution’. Dealing with a similar submission onthe Judge’s failure to use the same words T.S. Fernando, J. inAttorney General v. Ratwatte (supra) has stated as follows: “Therecan, of course, be no set or invariable mode of expressing thejudge’s view that evidence is not creditworthy at all. Judges willemploy varying language to express their opinioiT to this effect. Tomaintain an argument that the Judge is not wholly discreditingwhere the Judge says, as here, that no reasonable Court canaccept the testimony on the point in question, it is necessary to goon to say also that the Judge is putting himself outside the pale ofreasonable men! In the context in which the statement occurs, itamounts, in my opinion, to a total discrediting of the evidence onthe one important point in the case.”
In this case even if Sethuram’s evidence regarding the iden-tity of the accused is taken on its face value such evidence at itsbest was of a tenuous character in view of the inherent weaknessarising from Sethuram’s admission that he has seen the accusedprior to the identification parade. The evidence was also vague inthat Sethuram has failed to explain clearly the circumstances underwhich he came to ascertain the identity of the accused subsequentto the event. His failure to describe exactly what transpired at themeetings he had with the high ranking police officers named byhim assumes significance in view of the defence suggestion thatthe allegation against him has been made at the instance of somehigh ranking police officers who were displeased with him due tohis refusal to testify against another police officer. I have alsoreferred to the evidence the prosecution could have procured andled at the trial to support Sethuram’s version. The cumulative effectof all those deficiencies in the prosecution case was sufficient toraise a reasonable doubt in the mind of a reasonable man withregard to the guilt of the accused. Therefore even the conclusionthat the evidence led failed to establish the commission of theoffence charged against the accused is justified on the evidenceavailable in this case.
Having considered the case presented by the prosecutionagainst the accused this Court is of the view that the prosecution
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case was starved of evidence. In an appeal against an acquittal ona question of fact the prosecution has a heavy burden to discharge.Such an appeal could only be justified if there had been a palpablemisdirection by the Judge when considering the facts of the casewhich could be demonstrated to be wrong on the very face of therecord and which had in effect resulted in a miscarriage of justice.In this appeal the prosecution has failed to discharge its burden.This Court cannot hold that the learned trial Judge’s decision toacquit the accused without calling for his defence was wrong andthat it has resulted in a miscarriage of justice.
Accordingly we affirm the verdict of acquittal of the accusedand dismiss this appeal filed against the acquittal. For the reasonsgiven in this judgment the revision application filed by the Attorney-General bearing No. 61/98 is also dismissed.
FERNANDO, J. – I agree.Appeal dismissed.