THE KING v. FONSEKA

147-NLR-NLR-V-47-THE-KING-v.-FONSEKA.pdf


424
SOERTSZ A.C.J.—The King v. Fonaeka.
[Court of Criminal Appeal.]
1946 Present: Soertsz A.C.J. (President), Wijeyewardene S.P.J.
and Jayetileke J.
THE KING v. FONSEKA.
Appeal No. 33 of 1946.
S. C. 2—M. C. Panadure, 35,885.
Court of Criminal Appeal—Unreasonable verdict of Jury—Power of Courtto interfere.
The Court of Criminal Appeal will quash a conviction if it is ofopinion that the case was not proved with that certainty which isnecessary to justify the verdict of guilty.
A
PPEAL, with leave obtained, against a conviction in a trial beforethe Supreme Court.
. M. M. Kumarakulasingham, for the accused, appellant.—Tho verdictof the Jury cannot be supported on the evidence. The question whenthe Court of Criminal Appeal will set aside a verdict purely on aquestion of fact has been discussed in R. V. Andris Silvax, R. v. Pabilis 2,R. v. Appuhamy 3, R. v. Velupillai *.
H. A. Wijemanne, C.C., for the Crown.—The evidence for the prosecu-tion was accepted by the Jury and a unanimous verdict was brought.This Court will not set aside a verdict on a question of fact except on thestrongest grounds. See R. v. Hancox 6.
.Cur. adv. vidt.
September 23, 1946. Soertsz A.C.J.—
This is a case of some difficulty and we have given it our most anxiousconsideration. On the one hand, the appellant submits that he has been
1 (1940) 41 N. L. R. 433.» (1944) 46 N. L. R. 324.
a (1944) 46 N. L. R. 541.4 (1944) 46 N. L. R. 424.
6 (1913) 8 Cr. App. R 193.
SOERTSZ A.C.J.—The King v. Fonaeka.
425
convicted on very meagre and doubtful Evidence in regard to the allegedidentification of him as the assailant of the deceased man; on theother hand the Crown contends that the verdict of the Jury was unani-mous, and that it was reached after a charge which, we agree if we maysay so with respect, was in every point unexceptionable. The questionof identification was purely a question of faot for the Jury and we havehad occasion repeatedly to declare that we do not retry cases and do notinterfere with the verdict of the Jury on such a question even thoughwe ourselves, in their places, might have como to a different conclusion.The Court of Criminal Appeal Ordinance enacts that, on questions of fact,the appeal shall be dismissed unless we find that the verdict of theJury is unreasonable or cannot be supported having regard to theevidence in the case, or unless …. on any ground there was amiscarriage of justice.
In this case, the evidence incriminating the appellant consisted of thedying declaration and the dying deposition of the injured man, and of thetestimony of his companion Eralis Alwis. Both of them said that therewere two assailants, but that they identified only the appellant and thatthey indentified him while he was attacking the injured man in the shedand also when he was in flight after the attack. They said that theyidentified him by the aid of the light given by Eralis’s electric torchwhen he flashed it first in the shed and then in the course of his pursuitof the fleeing assailant. Crown Counsel submitted that it was for theJury to say whether they would accept that evidence or not, and that,once they accepted it, as their verdict shows they did, there could be nofurther question. In a sense, Crown Counsel was right. There was thisevidence of both the injured man and of his companion both of whom pro-fessed to have identified the appellant. But our anxiety is occasioned bythe fact that the Jury appears too readily to have accepted the face valueof that evidence as being its real value. They appear to have beendistracted from a careful examination of that evidence by what we cannothelp sayiug was unfortunate cross-examination directed to the establish-ment of a conspiracy on the part of the injured man, of Eralis Alwis,of the Vel Vidane and also of the Inspector of Police to implicatethe appellant in a false charge. There were grounds upon which it couldhave been urged with great force that Eralis had no torch at the time ofthe attack, and that a torch came into his hands only when the injuredman and he were on their way to the. Police Station accompanied by theVel Vidane whose field they were working at the time having supplantedthe appellant’s father who had cultivated it continuously during theprevious seven or eight years. But the cross-examination persistentlyadopted was directed to show that no torch was produced at the PoliceStation that day but that it was produced for the first time at the inquiryby the Magistrate. This point was pursued in a maimer that might wellhave left the Jury with the impression that the crucial question waswhether the torch was produced that morning at the Police Station ornot, and that if they found that it was so produced Eralis’s and theinjured man’s statements that the assailant was identified by the lightof the torch must be true. But, the substantial question in the case was notwhether Eralis produced a torch at the Police Station, but whether he
18—H 16792 (8/68)
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SOERTSZ A.O. J.—The King v. Fonaeka.
had one in the shed and in the course of his alleged pursuit of the fleeingassailant. This question did not receive the attention it deserved in thecourse of cross-examination.
If it had been properly stressed and the Jury’s attention called to thefaot that to the men Monis and Baby Singho who were the first to comeup in response to the cries of the injured man and Eralis it-was not saidthat one of the assailants had been identified, we cannot help feelingthat the verdict might have been different. Eralis admits that he didnot tell them that he had identified the appellant nor is there anythingto show that the injured man told them that the appellant had beenidentified. There is not a word to say or to suggest that Monisand Baby Singho saw the torch that Eralis is supposed to have beencarrying at the time. Neither Monis nor Baby Singho was called bythe Crown and from that omission we may reasonably presume that theywere not called because they could not advance the case for the Crown.Eralis’s explanation that he did not tell them that he had identified theappellant because he was not asked is not at all satisfactory. Anotherfact that involves Eralis’s torch in doubt and suspicion is that, at thetrial, he disowned the torch produced in Court. He said that his torchwas a black-painted torch, not electroplated as the one produced was.The Inspector of Police, however, said that the torch produced at thePolice Station was a torch similar to the one in the Assize Court and thathe had no recollections of a black-painted torch in the case. Thisseems to bear out the suggestion that Eralis owned no torch and that thetorch produced at the Station was not Eralis’s torch but that of the VelVidane and so Eralis got confused, in the lapse of time, in regard to itsidentity. When the Vel Vidane protested that he did not own a torchhe appeared to protest too much. There are other disturbing facts in-this case. The injured man said that there was a lantern hanging in theshed at the time of the attack. Eralis says there was no hanging lantern,that there had been a cigarette-tin lamp but that it had been put outwhen they retired to sleep. This is a contradiction of some importancewhen one is considering the important question in the case, the identi-fication of the assailant and the illumination available for the purpose.One is left with a strong impression that the assailant was not identified,but that the appellant was suspected as the man with a motive and socame to be implicated. Again the statement that the appellantjumped into the ela and crossed it is not satisfactory. In the declarationP 4 the deceased said that Eralis, on his return from the pursuit of theassailants, told him that both men jumped into the canal, but Eralisin his evidence says he did not see the other assailant at all and that onlythe appellant waded across the ela. It seems to us that this fact of theappellant wading across the ela was probably insisted upon by way ofsupporting the identity of the appellant as one of the assailants. Hishouse was beyond the ela and he is, therefore, made to wade across it.On the sketch the ela is marked as a deep ela and if the appellant hadjumped into it and gone across he could hardly have failed to get hisclothes wet, but when the Police called at his house at dawn he wasasleep. There were no marks or indications on him to show that hehad, a few hours earlier, been engaged in such an enterprise, and there
Careem v. Wic/cremeralne (Price Control Inspector.)
427
■were no wet clothes. Each of these facts by itself may not be decisive,but when they are put together and weighed with the fact that to the firstarrivals, namely, Monis and Baby Singho, the name of the appellant was notmentioned and that nothing was said to them about a torch, the conclu-sion is almost irresistible that the injured man’s assailant had not beenidentified but that in thinking over the matter the Vel Vidane, Eralis,and the injured man suspected the appellant to have been the assailantand thought of a torch as the best thing to adduce in support of theirstory of identification. On a careful consideration of the whole case andparticularly of the matters to which we have referred, the majority of usfind that “ the case was not proved with that certainty which is necessaryto justify the verdict of guilty ” (see R. v. Wallace ‘). We think that theJury would, in all probability, have taken that view, if Counsel had notconfused them in the course of lengthy cross-examination. The learnedJudge in opening his charge to the Jury drew their attention to the kindof cross-examination there had been with this comment—
“ You have just heard a very sustaining, concise, suasive and ableaddress. If the cross-examination had been of the same kind weshould have ended this case much earlier.”
To that comment we would, if we may, add that the case would, in allprobability, have ended differently. The majority of us have, therefore,come to the conclusion that we ought to allow the appeal and acquit theappellant acting on the principles enunciated in Rex v. Schragera, Rex v.Parker3 and similar cases.
Appeal allowed.