133-NLR-NLR-V-48-THE-KING-v.-HARAMANIS-et-al.pdf
403
DIAS J.—The King v. Haramanis.
1947Present: Wijeyewardene S.P.J. and Dias J.
THE KING v. HARAMANIS et al.
S. C. 89-91—D. C. (Crim.) Panadure, 80.
Motive—Criminal charge—Duty of prosecution—When absence of motivecreates reasonable doubt.
As a matter of law the prosecution is not bound to assign or prove amotive as to why a criminal act was done. Where however the facts are-not clear, the absence of an intelligible motive may have the effect ofcreating a reasonable doubt in favour of the accused.
A
PPEALS against three convictions from -the District Court.Panadure.
No appearance for the first accused-appellant.
A. C. Guncuratne (with him S. Saravanamuttu), for the second and thirdaccused, appellants.
J. A. P. Cherubim, C.C., for the Attorney-General.
Cur. adv. vult.
July 11, 1947. Dias J.—
Six persons were charged on the indictment which contained six counts-The first and second counts charged all the accused with being membersof an unlawful assembly (section 140) the common object of which was tocause hurt, and with the offence of rioting (section 144). All the accusedhave been acquitted of these two charges, the learned District Judgeholding that there was no unlawful assembly. The third count chargedthe first, second, and third accused, who are the appellants, with jointlycommitting mischief (section 409) by damaging property in the house ofthe witness B. Puncha. The three appellants have been convictedunder this count. The fourth count charged the first accused alone withcommitting mischief by fire (section 419) by setting fire to the house ofthe witness R. Rapiya. He has been convicted of this offence. Thefifth and sixth counts charged the second accused alone with causingsimple hurt (section 314) to the witness L. B. Lily and to one R. Jintha.He has been found guilty under both these counts.
The first accused was sentenced to undergo three months’ rigorousimprisonment under count 3 and two years’ rigorous imprisonment undercount 4. The second accused was sentenced under counts 3, 5, and 6 toundergo three months’ rigorous imprisonment on each count, and thethird accused under count 3 to undergo three months’ rigorous imprison-ment. The sentences imposed on the first and second accused were torun consecutively. It will be seen that the third accused has no right ofappeal on the facts.
That a serious clash took place between the three appellants, whobelong to the goigama community, and certain people of the bathagama-duraya village of Pelpitigoda on the Sinhalese New Year Day, April 14,1946, is beyond question. The first and second accused were seriouslystabbed, certain of the village women received injuries, the pots and pans
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DIAS J.—The King v. Haramanis.
inside the house of Puncha were smashed and his house damaged, and thehouse of the witness Rapiya was set on fire. There is also evidence thata pregnant woman, Sitti, who was in labour was assaulted.
Owing to the conflicting nature of the evidence it is difficult to obtaina clear picture of what happened, the motive actuating the parties, themanner in which the transaction began, and the order of the events. It isalso clear that the police themselves were uncertain as to who were theaggressors, because, besides charging these accused, they filed a counter-case charging the prosecution witness Jasaya and his father Gunneriyawith stabbing the first and second accused. That case is pending.
It is for the prosecution to establish the charges against the appellantsbeyond reasonable doubt. The case for the prosecution suffers from thefurther infirmity that the learned District Judge has not accepted theevidence of the prosecution witnesses in regard to the three accusedwho have been acquitted. He has further held that the witnesses have“ embellished ” their story. It is also to be noted that the prosecutionwitnesses cannot, or pretend they cannot, explain how the injuries on thefirst and second accused were caused. On the other hand, the defence isunable to explain how the injuries on the women were caused, or how thepots and pans in Puncha’s house were damaged or how Rapiya’s housecaught fire. As Abrahams C.J. observed in Rex v. Eliatamby1 “ Whenit appears that there is a mixture of truth and falsehood on both sides,it has to be remembered that the burden of proof is on the prosecution,and that the defence has to prove nothing beyond what is necessary toinstil a reasonable doubt in the mind of the Court ”.
The question of motive is shrouded in uncertainty. The scene of thealleged offence is a duraya village containing 100 to 150 houses of personsof the same community who are closely related to one another. It isunlikely that a band of six goigama men, even if fortified with drink,would attack three duraya households in the manner alleged by theprosecution, unless there was some intelligible motive for so doing.Puncha candidly admits that he is unaware of any previous illfeelingbetween the accused and the people of this village. The witness. Lilystated that the reason why she asked her husband Guneriya and sonJasaya to hide was because the accused “ had already assaulted somepeople in our village before that ”. I doubt whether this evidence wasstrictly admissible, but even so her evidence is extremely vague on thispoint. First accused, who was an estate watcher, stated that he hadcharged Duliya’s and Rapiya’s relatives for theft of rubber and there wasa countercharge against him. This was two months previous to thisincident. Then there is the suggestion that the second accused hadbeen “ helping ” one Hawadiya in a maintenance case instituted againstthe latter by a woman called Weiya, the daughter of Lily and Guneriyaand the sister of Jasaya. Second accused’s explanation is that he hadmerely lent some money to Hawadiya and that the loan had been repaid.If Jasaya and Guneriya erroneously believed that the second accused washelping Hawadiya in the maintenance case, that would be a motive forthem to quarrel with the second accused.
» (1937) 39 N. L. R. at p. 58.
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DIAS J.—The King v. Haramanis.
As a matter of law, the prosecution is neither bound to assign nor provea motive as to why a criminal act was done. As a matter of fact, however,if the evidence is clear the question of motive is immaterial. If the factsare not clear, the presence of an intelligible motive may help the Court toascertain and decide that which is not clear. But when the facts them-selves are not clear, and there is also the absence of an intelligible motive,these combined factors may have the effect of creating reasonable doubtsin favour of the accused—see Rex v. Appuhamy.'
According to the prosecution the transaction falls into four phases :(1) Puncha and his wife Gintha when returning from Ratmalgoda saythey met the accused who were drunk saying “ Let us go and destroy theduraya village If that evidence is true, it throws light on what tookplace subsequently ; but the learned District Judge has not definitelyheld that he accepts that evidence. He merely records it as part of thestory of the prosecution, but does not definitely hold that this incidenthappened. (2) The three appellants thereafter chased Malsonda intoSitti’s house, and the first accused assaulted her with a stick causing herprematurely to give birth to a child. It is curious that the police havebased no charge in regard to this incident, nor was Sitti called as a witness.Her name is not on the back of the indictment. (3) Then the accusedwent to Puncha’s house and. after assaulting Lily, they entered the houseand broke the pots and pans, damaged the house and stole some valuables.Lily says she saw the first accused take something wrapped in rags andput it in his waist. Nothing apparently was found in his waist whenfirst accused was subsequently arrested at the scene. After that theypelted stones at Puncha’s house. (4) Then first accused said “Come letus set fire to Rapiya’s house ” and the first accused proceed to do soand prevented the people from putting out the fire or salvaging theproperty in the house. It will be seen that the prosecution does notaccount for the severe injuries received by the first and second accused.They were subsequently found injured at the scene.
On the other hand, the three accused bring themselves on the scene,but their story is diametrically opposed to that of the prosecution. Theydo not explain how the women were injured, or how Puncha’s house wasdamaged or how Rapiya’s house was set on fire. The second accusedsays that on the day in question he was passing through this village whenGuneriya questioned him as to why he (second accused) was helpingHawadiya (the brother of Rapiya) in the maintenance case ? Thedenial of the second accused that he did so led to an altercation. ThenJasaya who was standing by pushed him by the neck. ThereafterGuneriya stabbed the second accused. When the second accused tried todefend himself Jasaya also stabbed him. First accused says he was in anear by boutique when he saw the altercation between second accusedand Jasaya. He intervened and was stabbed by Guneriya. He deniedthat he set fire to the house of Rapiya. The third accused, who is thebrother of the second accused, says that he was gambling in the house ofRapiya when he heard that his brother was injured. He, therefore,came to the scene. He found the first and second accused injured and
{1945) 46 N. L. R. at p. 132.
406DIAS J.—The King v. Haramanis.
despatched them to the hospital. It is curious that under thosecircumstances, the third accused was not to be found by the authoritieswhen search was made for him.
It is obvious that both sides have departed from the truth ; but theburden of proof is on the prosecution to establish the guilt of theappellants.
Was the first accused injured before or after Rapiya’s house was set onfire ? This question is important for two reasons. In the first place,would it be possible for the firs, accused after receiving the stab to set fireto the house, chase Rapiya away and prevent people from extinguishingthe fire ? In the second place, the suggestion for the defence is that thesedurayas, after stabbing the first and second accused, and fearing that theinjured men might die and a charge of murder brought against them,fabricated a false defence by injuring some women, damaging Puncha’shouse and setting fire to Rapiya’s house.
The first accused had an incised wound on the right and outer side ofthe chest, 3" below the nipple, &" long and f" deep, caused by asharp cutting weapon which kept him in hospital for eleven days. Thedoctor did not deny the possibility that the injury could be caused bysomebody holding up the skin and inserting a knife through—but whowas the person who did that, and what opportunity had anybody to do soat the scene under the eyes of the duraya crowd which must havecollected ? If this suggestion is correct, then some friendly hand stabbedboth the fust and second accused. The doctor was not asked whetherit was possible for the first accused with that injury to go all the way toRapiya’s house and set fire to the thatch. If the evidence of Rapiya andMalsonda is true, at the time the house was set fire to, the first accusedwas uninjured. According to Rapiya the first accused chased him, andactually prevented people from extinguishing the fire. I doubt if hecould have done that if he had a wound of this nature in his chest. Ifind it difficult, however, to believe that the injuries on the first andsecond accused were inflicted by themselves or by some friend of theirsin broad daylight in the midst of a crowd of hostile duraya people whowould have seen what was done.
It is no doubt unfortunate that by reason of the untrustworthiness ofthe direct evidence the truth cannot be ascertained, but this does notabsolve the prosecution from establishing the charges by evidence whichproves the guilt of the accused beyond reasonable doubt. The’failure tocall Sitti and the injuries received by the first and second accused areunexplained. The motive for the acts of the appellants is nebulous.Having tested the evidence both extrinsically as well as intrinsically,the nett impression created in my mind is that it is safer that this con-viction should not be allowed to stand—see Don Edwin v. Inspector of Police.Matara and Martin Fernando v. Inspector of Police, Minuwangoda
I therefore quash the convictions of the first and second accused andacquit them. Acting in revision I quash the conviction of the thirdaccused, and acquit him also.
Wijeyewardens S.P.J.—I agree.
1 [1945) 40 -V. L. R. 2SI.
Appeals allowed.* [1945) 46 A'. L. R. 210