020-NLR-NLR-V-39-THE-KING-v.-ELIATAMBY–et-al.pdf
53
ABRAHAMS CJ.—The King v. Eliatamby.
1937Present: Abrahams C.J.
THE KING v. ELIATAMBY et dl.
3-4—D. C. (Crim.) Jaffna, 4,017.
Criminal Procedure—Conflict of evidence—Duty of Judge to examine thedefence—Burden of proof—Reasonable doubt created by the defence.In a criminal case it is the duty of the Judge to scrutinise the defenceunless it is overwhelmingly obvious that the witnesses are so contradictoryof each other as not to be worthy of credit or that they contributenothing relevant to the case for the defence.
The burden of proof being on the prosecution, the defence has to provenothing beyond what is necessary to instil a reasonable doubt in themind of the Court.
^^PPEAL from a conviction by the District Judge of Jaffna.
R.L. Pereira, K.C. . (with him Kumarakulasingham), for accused,appellants.
M. F. S. Pulle, C.C., for the Crown.
Cur. adv. vult.
August 23, 1937. Abrahams CJ.—
The two appellants were tried with a third man VinasithambySellathurai on the following charges : — (1) Causing grievous hurt to oneMailvaganam by means of a sword, (2) voluntarily causing hurt to oneLedchumy by means of a sword, (3) voluntarily causing hurt to one Vinasi-thamby by means of a sword, (4) voluntarily causing hurt to one Arupillaiby means of a knife, and (5) voluntarily causing hurt to one Mailvaganam.,The first appellant was found guilty on counts (1), (2) and (3), and thesecond appellant guilty on count (4). The third man Vinasithamby Sella-thurai was acquitted.
In view of the fact that all the three accused were said to have acted inconcert, the first appellant using a sword] the second appellant a knife,and the accused Sellathurai using a club, it is a little difficult to see whythe two appellants were not convicted of all the offences, and why, illview of the fact that the learned District Judge seems to have believedthat the accused Sellathurai accompanied his co-accused and carried aclub, he acquitted him.
The story for the prosecution was this. The three accused were allegedto have entered the compound of the house in which the woman Ledchumyand her son, Arupillai, were living. The appellant Eliathamby was armedwith a sword, the appellant Aiyathurai with a knife, and Sellathurai' witha club. They cut the gate open and called out to Arupillai, and Whenthe woman came out and asked what they wanted Eliathamby cut herwith the sword on her left hand. Arupillai came out and struck Elia-thamby on the head with a piece of firewood. Aiyathurai then c,utArupillai from behind with a knife, and Sellathurai struck Arupillai witha club. A man called Mailvaganam came up just at the moment whenArupillai was being stabbed and remonstrated with the parties quarrelling,
. whereupon Eliathamby told him not to interfere and cut him with asword. In his evidence he is recorded as saying, “ I raised my right
54
ABRAHAMS C.J.— The King v. Eliatamby.
hand to ward off the blow and the blow alighted on the left palm ”—aTather singular operation. One Vinasithamby also heard the disturbanceand arrived on the scene while, in his own words, Arupillai and Eliathamby•were pushing each other and fighting. He also tried to separate themand Eliathamby cut him with the sword on his left arm, and Sellathuraistruck him with a club on his right thumb. Then Ledchumy was said tohave been struck with the sword on the right shoulder blade. Corrobo-ration of the injured persons evidence was offered by Vaithilingam theson-in-law of Ledchumy, Chelliah her brother, Manicamthiagarajaha bystander, Kathirgamen a barber, who was close by and said he sawthe disturbance without being able to see precisely what happened, andone Kanapathipillai, who also saw the disturbance. The only personsnot related to Ledchumy are Kathirgamen the barber and Manicamthia-garajah. It was alleged that the motive for this attack was due tothe refusal of Arupillai to intervene in some law suit in which Aiyathuraiwas concerned. Aiyathurai and Sellathurai are brothers and Eliathambyis a relation of theirs.
A complaint was made on behalf of the injured parties very shortlyafter the occurrence to the Police Vidane, who investigated at once. Thefollowing day the injured persons were examined by the Judicial MedicalOfficer. It is interesting and extremely important to note what theirinjuries ,were. Ledchumy had a skin deep incised wound between twoof her fingers on the left hand and no other injuries. Mailvaganam hadan incised wound 3 in. long and 1/3 in. deep across his left palm, he had alinear abrasion on the right shoulder blade, a contusion on right angle oflower jaw, a contused abrasion on right shoulder and an abrasion on theleft forearm. As he was treated in hospital for 22 days as a result of thecut, this injury, though not of a very serious nature, is in law grievoushurt. Arupillai had three incised wounds : one skin deep on the front of■the chest, the 2nd J in. deep on the back of the chest, left side, and the3rd skin deep just over the second injury. He also had an abrasion onthe back of the left forearm. Vinasithamby had an incised wound skindeep across the back of the thumb, a superficial incised’ wound on theback of the left hand, a skin deep incised wound across the front of theleft arm, a contusion on the right thumb. The Medical Officer statedthat the incised wounds on Arupillai were caused by a clasp knife, the■incised injuries on the other people by a sword, and the rest were injuriescaused by a club. With all respect to this evidence, I am unable to seehow in view of the fact-that no sword was produced it could be ascertainedthat the incised wounds were not, all caused by a knife. The evidence■ however, is very brief, and it seems quite likely in view of the separate^allegations against the several,accused that the medical witness intendedto indicate no more than that the injuries were consistent with the use ofa particular weapon which he mentioned. The matter is not unimportant.in view of the fact that Eliathamby admits having used a knife and denies’ that he had a sword.
The only one of the accused who gave any evidence was Eliathamby.He said that about five or six days before this episode he and Arupillaiwere attending a festival in the temple. There were dancing girls thereand Arupillai cracked jokes about them, which, for some reason or other.
55
ABRAHAMS CJ.— The King v. Eliatamby.
Eliathamby resented, and he struck him. On the day of the allegedassault he, Eliathamby, happened to be passing along the road whereArupillai was living and was accompanied by Aiyathurai. He metVaithilingam outside Arupillai’s house, and Vaithilingam used provo-cative language. He said that Vinasithamby held him while Mailvaganamassaulted him with some iron instrument called an alavangoe and struckhim on the left shoulder. Then other people assaulted him, and one mancalled N. Chelliah had a hatchet. Aiyathurai in his defence said that hetook out a clasp knife and brandished it. Aiyathurai also used a stickand assaulted his assailants. Mailvaganam endeavoured to snatch hisknife but he did not let go. He then received a blow on the head fromMailvaganam with an alavangoe. He fell down and knew nothing more.He completely denied having entered the compound or having a swordwith him, and attributes the injury on Ledchumy’s hand to her inter-ference in the fight. When the Police Vidane came he was still near thespot and made a statement, and that is borne out by the Police Vidane.He says that the accused Sellathurai was actually on the spot and that hedid not accompany him there. His evidence is supported to some extentby two witnesses, one S. Thambiah and the other V. Guranathi who saidthat they happened to be going along the road and saw Eliyathamby and'Aiyathurai going.ahead. Both said that they saw Vaithilingam outsidethe gate of Ledchumy’s house. They both saw Vaithilingam speak toEliathamby and then saw Vinasithamby seizing Elia&amby and Mdil-vaganam striking him with an iron rod. Then Arupillai struck at himwith a clasp knife They both saw Eliathamby – waving a clasp knife,and Thambiah says that he saw Mailvaganam snatching the knife. Thenthe accused Sellathurai came up to assist Eliathamby and he was alsoassaulted. Thambiah stated that all the parties were related to him, butGuranathi was not asked whether he was related to any of them andhe did not volunteer any information about them.
All the three accused were admitted to the hospital the same day at9 p.m. It is important to note their injuries. Eliathamby had anincised wound, scalp deep, on the left side of the front of the head, acontused wound, scalp deep, on the left side of the back of the head, acontused abrasion on the left arm, a contusion on the left side of the head,just behind the ear, a contusion on the left forearm and a contusion onthe right buttock. The medical witness was of the opinion that the firstone was caused by a sharp cutting instrument which might have been ahatchet. The rest could have been caused either by a club or an iron rod.Aiyathurai had a contused abrasion on the left parietal eminence of thehead and one on the left side of the head just behind the ear. They werecaused by two blows which might have been from a stone. Sellathuraihad a contused abrasion on the left lateral aspect of the chest, a similarabrasion on the back of the right shoulder and a contusion on the frontof the left shoulder, all caused by a blunt instrument. The first andsecond could have been caused by a .hatchet, and the third by an iron orclub. The contusions on Sellathurai and Aiyathurai could have beencaused by stones.
The learned District Judge said that the fiist question is whether thefight took place in the circumstances alleged by the prosecution or in' the39/9
56
ABRAHAMS C.J.—The King v. Eliatamby.
circumstances alleged by the defendants. He says that the story of thegenesis of the quarrel, as told by the prosecution, is very much morelikely than that told- by the defence. Then he says, “ On the evidenceand the probabilities of the case, I am inclined to think that it was theaccused party who were the aggressors and who went and created adisturbance in the complainant’s house ”, and he says finally, “ The chiefquestion is whether the accused were the aggressors or whether they werewaylaid by the complainant’s party and assaulted by them. As I saidbefore, on the evidence and probabilities of the case, I think there can beno doubt that it was the accused who went to the complainant’s houseand created a disturbance”. It appears to me that the learned DistrictJudge overlooked the burden which lay upon the Crown to prove its cAsebeyond all reasonable doubt, and was rather inclined to consider a balanceof probabilities between two conflicting stories. The prosecution gaveone version, the defence gave another, but it was for the District Judge norto decide which was the more probable story but whether in spite of .anydefects that might appear in the case for the prosecution or any counter-evidence on the part of the defence, he was fully convinced that theevidence for the prosecution was substantially true. It may be that themotive alleged by the prosecution is a more probable one than thatalleged by the defence, but motives only become important when evidenceis satisfactory, not when it is unsatisfactory. Then can the evidence forthe prosecution be said to be satisfactory? In the first place there are a.number of injuries on Vinasithamby, Mailvaganam, and Arupillai whichhave been completely unaccounted for by the prosecution. Thesemultiple injuries appear to me to be far more consistent with a factionquarrel and fight in which blows were exchanged on both sides, ratherthan the sudden attack alleged by the injured parties themselves andtheir witnesses. The only one of the injured people who received oneinjury only was Ledchumy. If Mailvaganam for instance was renderedhors de combat with that cut on his palm how is it that he also sufferedseveral contusions and abrasions? It is also a point that Ledchumy alleges.
. that she was struck on the shoulder with a sword, (she herself saysit was a cut, but the witness Manicamthiagarajah says that it was withthe flat of the blade) and that she had a mark which she showed to thedoctor, but the doctor did not say that there was any injury other thanthat on the hand. We have then the multiple injuries that the threeaccused persons were shown to have sustained, and in particular theincised wound on the head of Eliathamby consistent with having beencaused by the blade of a hatchet. If the three accused surprised the-various injured parties, as they were alleged to have done, it seems asingular thing that they were so roughly handled. There was a suggestion,in the course of the case that some stones were thrown at them by somepeople, and that might account for some of the contusions but it would,not account for the cut on the head that Eliathamby received.
It is also a singular thing that if Eliathamby had a sword and used itwithout any resistance at all, that he should have inflicted such com-paratively trivial injuries, and it does not seem to me that the injurieshe did inflict were inconsistent with the use of a knife during a roughand tumble in which a certain number of people were engaged and that.
57
ABRAHAMS CJ.—The King v. Eliatamby.
the injury to Mailvaganam might well have been inflicted by his snatchingthe knife as the witness for the defence alleged he did.
I have further to observe certain inaccuracies in the judgment whichtend to favour the prosecution. It is admitted that the witnesses,Manicamthiagarajah and Kanapathipillai, figured rather late in the caseand were actually examined in the Police Court as a result of the petitionpresented to the Government Agent that their evidence had not beentaken. The learned District Judge says that as regards the former thathe was present at the time the Police Vidane went to the scene but thathe did not volunteer to give evidence through fear that he himself wouldhave been made an accused. There is nothing in thb evidence of thiswitness that justifies this statement of the learned District Judge.
As regards Kanapathipillai, he is said in the judgment to have told thePolice Vidane what he had seen. But it appears in his evidence on page 21of the record that although he was present at the time the Police Vidanerecorded the statements of the injured persons and witnesses he did notmake a statement himself. The Police Vidane himself said that nobodytold him that Manicamthiagarajah was also one of the witnesses and thatKanapathipillai was at the spot but that nobody mentioned his namethat day. On the following day, however, he was told that both thesepeople witnessed it and he questioned Kanapathipillai who said that hecame later, and that Arupillai was there with injuries, and that he wentaway out of fear.' The learned District Judge says that there is no reasonwhy Kanapathipillai should give false evidence against the accused.That is no doubt true, but in view of the circumstances under whichKanapathipillai gave his evidence and also the fact that the Police Vidaneimplies that Kanapathipillai came to the spot after the disturbance wasover, it would appear that the learned District Judge has not sufficientlyconsidered the reliability of the witness and appears to have overlooked.the fact that he was contradicted by the Police Vidane.
Next as regards the defence, I must confess to a great deal of surpriseat finding that it has not been examined in the light of what the twowitnesses, Thambiah and Gurunathi, have stated. It was the duty ofthe District Judge to consider that evidence: Either he has ignored itcompletely or he has rejected it without properly considering it. It iselementary that the evidence for the defence must be scrutinized as wellas the evidence for the Crown. Failure to do so is an injustice to theaccused unless it is overwhelmingly obvious from the record that thewitnesses are so contradictory of each other so as not to be worthy ofcredit or that they contribute nothing of any relevancy to the case forthe defence. I do not see how such a criticism could be passed upon thisevidence. The learned District Judge is at pains to say that he does notsee why Kanapathipillai should give false evidence against the accusedbut he does not give any reason why Thambiah, who was related to ailthese parties, and Gurunathi who does not appear to have been aninterested witness, should not be worthy at least of some consideration.
It has been represented by Counsel for the Crown that no exceptionfan be taken to the evidence of the barber Kathirgamen, who says thathe saw Eliathamby in the compound of Ledchumy’s house with a swordin his hand and Sellathurai in the same place with a club. That, of
88
The King .v. Gunasekere.
course, is a matter of some importance, but the learned District Judgehowever has not sufficiently considered the whole of the evidence in thecase for me to say that he was bound to accept the evidence of the barber.
It is an unfortunate incident in the administration of justice in thscountry that whenever there is a faction disturbance or whenever it seemslikely in any case of hurt that blows have been exchanged between twopersons or two groups, each side claims to have been attacked and not tohave retaliated except to the extent perhaps of legitimate self-defence,and each side generally magnifies the acts of the opposite party andminimises its own acts. But when it appears that there is a mixture oftruth and' falsehood on both sides, it has to be remembered that the burdenof proof is on the prosecution and that the defence has to prove nothingbeyond what is necessary to instil a reasonable doubt in the mind of theCourt. That in this case, there was a disturbance is obvious, and thatseveral- people on both sides were engaged is also obvious ; that blowswere given and exchanged with sharp instruments and blunt instrumentsand a sword is also very likely. Taking into consideration the unexplainedinjuries on both sides, the unjustified credit that the District Judge hasgiven to Kanapathipillai and the complete omission to deal with thedefence witnesses, I am of the opinion that it would not on the record besafe to say that this case has been made out according to the charges.What actually happened seems to be more a matter of conjecture,than proof. I. therefore quash the convictions of both appellants andacquit them.
Convictions quashed.