131-NLR-NLR-V-48-THE-KING-v.-HENDRICK-et-al.pdf
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The King v. Hendrick.
[Court of Criminal Appeal]
1947 Present: Howard C.J. (President), Jayetileke and Dias JJ.
THE KING v. HENDRICK et al.
Appeals 21-33, with Applications 69-81.
S. C. 92—M. C. Colombp, 19,683.
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Evidence—Identification—Hearsay—Corroboration.
A number of persons were charged with having been members of anunlawful assembly. A Police Sergeant gave evidence to the effect thatat an identification parade he made notes of the various identificationsmade by certain police officers and that the accused were those personswho were identified. The Police Sergeant’s evidence, although it washearsay, was, however, linked up with that of the police officers whostated that they identified certain persons.
Held, that the evidence, if accepted, was sufficient in law to proveidentity.
Abdul Wafiab v. Emperor (1926) 27 Crim. L. J. 836. followed.
A
PPEALS, with applications for leave to appeal, against certainconvictions in a trial before a Judge and Jury.
H. V. Perera, K.C. (with him Colvin R. de Silva and M. M. Kumara-kulasingham), for the first, second, and third appellants.
M. M. Kumarakulasingham, for the fourth, fifth, sixth, ninth, tenth tothirteenth appellants.
C. S. Barr Kumarakulasinghe (with him K. Sivasubramaniam), for theseventh and eighth appellants.
"T. S. Fernando, C.C. (with him A. C. Alles, C.C.), for the Crown.
Cur. adv. vult.
HOWARD C. J.—The King v. Hendrick.
397
June 23, 1947. Howard C.J.—
This is an appeal by thirteen accused who were charged with thefollowing offences: —
“ 1. That on or about November 19, 1945, at Fort, in the District ofColombo, you were members of an unlawful assembly thecommon object of which was to voluntarily cause hurt to Policeofficers, in particular to Sub-Inspector C. G. Wilkinson, PoliceSergeant 755 Punchi Banda alias Bandara, Police Constable 109Thangarajah, Police Constable 677 George Silva, PoliceConstable 1337 Fernando, Assistant Superintendent of Police
C. T. Pate, and Police Constable 3185 Maximian, all of theCeylon Police ; and that you have thereby committed anoffence punishable under section 140 of the Penal Code.
L. That at the time and place aforesaid, you being armed with deadlyweapons and being members of the unlawful assembly aforesaiddid in prosecution of the said common object commit themurder of Police Sergeant 755 Punchi Banda alias Bandaraof the Fort Police; and that you have thereby committedan offence punishable under section 296 read with section 146 ofthe Penal Code.”
All thirteen accused were found guilty on count 1 by the unanimousverdict of the Jury. By a majority of 5 to 2 they were found guilty ofvoluntarily causing grievous hurt with a dangerous weapon on count 2.Bach of the accused were sentenced to 6 months’ rigorous imprisonmenton count 1 and 4 years’ rigorous imprisonment on count 2, the sentencesto run concurrently. The appeal has been argued in the main by Mr. H. V.Perera, K.C., who appeared for the first, second, and third accused, butthe other accused have been represented separately. The incident thatled to the commission of the offences arose as the result of aprocession of strikers coming into collision with a party of Police. Theprocession which consisted of harbour workers was proceeding fromFront Street via Lotus Road towards Parsons Bridge. According to theevidence of Sub-Inspector Wilkinson the number of people in theprocession was about 300. Banners were being carried. The Inspectordecided to accompany, the procession in order to ensure its orderlyconduct. The Police party consisting of the Sub-Inspector,. 2 Sergeants,and 6 Constables, one of whom was Sergeant Banda, the deceased,started in the Police van. As the head of the procession was going intoUpper Lotus Road, the Police van was blocked and the Inspector, oneSergeant and three Constables got down and rushed up to Parsons Bridgejunction. The Inspector reached the head of the proceession. Whilstthe Inspector was at the round-about at the Parsons Road junction,P. C. Thangarajah came and complained that he had been assaulted inthe face by a number of the members of the procession. P. C. Thanga-rajah pointed out one of the men who had assaulted him and the Inspectorwent up and arrested him. He struggled and was placed in the Policevan in spite of attempts by others in the procession to rescue him. Atthis time about 7 police officers were near the van. According to theInspector bricks were then thrown at the police and he saw persons in the
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HOWARD C.J.—The King v. Hendrick._
procession pulling out short sticks from their shirts. He also noticed apush cart with soda water bottles on the right hand side of Parsons Bridgebeing broken up. The Inspector with Sergeant Banda, the deceased,rushed to the cart. They could not prevent the cart being broken upand the members of the procession arming themselves with sticks andbottles. The Inspector was struck several times. At this time thePolice van with the other police had disappeared and the Inspector andSergeant Banda were the only Police officers in the vicinity.
The Inspector told Sergeant Banda to run. Sergeant Banda ran viaCanal Row towards York Street followed by a large crowd of people.The Inspector ran to the same direction and was picked up by a Militarytruck. Stones and sticks were flung at the truck but he got away andreached the Fort Police Station via the State Council portion of LotusRoad and Queen Street.
The other members of Inspector Wilkinson’s party were also assaultedby the crowd but they managed to get back to the Fort Police Station.P. C. Thangarajah borrowed a bicycle, but the others came back in thevan. At the Fort Police Station Assistant Superintendent of PoliceWeinman organized another Police party consisting of himself, anInspector, two Sub-Inspectors and about 12 other officers. They went inthe Police van and reached Parsons Bridge via York Street.
The van drove past the Regal Theatre and the Assistant Superintendentthen noticed the procession ahead of them ^oing towards Slave Island.The Police party got ahead of the procession and then formed a cordonalong the road. Many members of the procession were armed withbottles, clubs and stones. When the Police party were about 20 yardsfrom the procession, members of the latter started to throw stones atthem. The Assistant Superintendent then ordered a baton charge.The procession broke up and the thirteen accused were arrested by thePolice and put in the. van. At the Police Station they were placed in thecells. At 12 noon an identification parade was held, the thirteen accusedbeing mixed up with twelve other persons collected by the Policefrom the street. At this parade the following identifications were madeby the Police. The first, fifth, and eleventh accused were identifiedas being amongst those who were arrested by Assistant SuperintendentWeinman’s party and placed in the Police van. The first accused andfifth accused had weapons. The second, third, fourth, sixth, seventh, njnth,tenth, twelfth, and thirteenth accused were all identified -as havingbeen present in the procession at Parsons Bridge when the first attackswere made on the Police. There was no identification of the eightaccused as being at Parsons Bridge or as one of those arrested after thebaton charge.
There was no identification of the persons who had caused the death ofSergeant Banda. A witness called Mohamed Ali watched InspectorWilkinson making the arrest after P. C. Thangarajah had complained ofbeing assaulted. This witness also saw the commencement of the assaulton the Police with stones. He states that after this the Inspector andSergeant were left and they were assaulted with bottles, clubs and stones.He saw the Inspector get into the Military truck and a crowd of peoplechasing the Sergeant down York Street. Stones hit the Sergeant on the
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HOWARD CJ.—The King v. Hendrick.
head and he fell down between Parsons Bridge and Canal Row. Thecrowd then attacked him with clubs on his head and all over the body.They then dispersed. Shortly after a European came along and with thewitness’s assistance placed the injured man in a car and took himto the hospital. He died the same day from laceration of the brain.
Counsel for the appellants have not with any degree of force arguedthat the convictions of all the accused except the eighth on count 1 is notin accordance with the evidence. The only evidence against the eighthaccused is the fact that all the persons placed in the van were subse-quently placed on their trial and that he must have been in the vanbecause he was charged. We think there is a measure of doubt in regardto the eighth accused having regard to the failure of any Police officerto identify him and to the general confusion that prevailed. We there-fore set aside the conviction of the eighth accused on both counts. Theconvictions of all the other accused on count 1 are affirmed.
The contentions of Counsel for the defence rest on firmer groundwhen count 2 is considered. With regard to the first, fifth, and eleventhaccused there was no direct evidence to establish their presence at ParsonsBridge. Mr. Fernando asks us to say that it must be inferred from theirpresence at the time of Assistant Superintendent Weinman’s batoncharge that they were also present at Parsons Bridge. This is circum-stantial evidence which must be conclusive as to their being in theprocession when Sergeant Banda was assaulted. It is however possiblethat they joined the procession after Parsons Bridge and after the assaulton Sergeant Banda. In these circumstances it has not been provedbeyond reasonable doubt that these accused were members of the unlawfulassembly at the time when the assault on Sergeant Banda took place.The convictions of these accused on count 2 are therefore set aside.
’ In regard to the other accused, namely, the second, third, fourth, sixth,seventh, ninth, tenth, twelfth, and thirteenth, we think there wasevidence as to their presence at Parsons Bridge just prior to the assaulton Sergeant Banda. There was, therefore, evidence to prove not thatthey were as members of the unlawful assembly guilty of his murder,but as found by the Jury of voluntarily causing grievous hurt under theprovisions of section 317 read with section 146 of the Penal Code. Theconvictions of these accused on count 2 are therefore affirmed.
One or two points made by Mr. H. V. Perera deserve attention. Hehas maintained that there was a misdirection at p. 49 of the learnedJudge’s charge and from the passages to which he drew our attentioncontended that the Jury might draw the inference that it wasnot necessary in order to convict the accused of their liability under section146 of the Penal Code for them to have been actually members of theunlawful assembly at the time when the assault on Sergeant Banda tookplace. The learned Judge on numerous occasions in his charge hasstated that before the accused could be convicted it must be proved thatthey were members of the unlawful assembly, at the time the offencewas committed. On the last page but one of the summing up this finaldirection appears. In these circumstances we do not consider there isany substance in this point.
48/32
400
Kalanasuriya v. Johoran.
Mr. Perera has also invited our attention to the unsatisfactory identi-fication of the accused. Not one of the accused were identified by thePolice officers who gave evidence either in the Magistrate’s Court or in thetrial Court. The only evidence of identification is derived from the evi-dence of the Police officers who state that they arrested certain personsas the result of the baton charge and then picked out those persons at theidentification parade held by Sergeant Jayasinghe. The evidence ofSergeant Jayasinghe is to the effect that he made notes of the variousidentifications made by the Police officers and the accused are thosepersons who were identified as being arrested as the result of the batoncharge. Some of them were also identified as being present at ParsonsBridge. Mr. Perera also maintained that the identification parade wasunsatisfactory as it should have contained more than twelve persons whowere not accused. It is true that certain criticisms can be levelledat the evidence of identification. These infirmities were, however,brought to the notice of the Jury by the learned Judge in the clearestterms. In spite cf these infirmities the Jury have accepted this evidence.1 need hardly say that the sole evidence of Sergeant Jayasinghe as to theidentifications would not have sufficed in law as it would have beenhearsay—vide Abdul Wahab v. Emperor The evidence of SargeantJayasinghe is, however, linked up with that of the Police witnesses takingpart in the baton charge, who have stated that they identified certainpersons.
Such a method of identification is specially approved in the Indiancase that I have cited. In these circumstances there is no objectionto the acceptance by the Jury of such evidence as being sufficient in lawto prove identity.
Conviction of eighth accused on both counts set aside.
Other convictions affirmed on count I.
Convictions of the first, fifth, and eleventh accused on count 2 set aside.
Convictions of the other accused on count 2 affirmed.