THE KING v. THOLIS SILVA et al

074-NLR-NLR-V-39-THE-KING-v.-THOLIS-SILVA-et-al.pdf


HEARNE J.—The Kina v. Tholis Silva.
26T
1937Present: Hearne J.
THE KING v. THOLIS SILVA et al.68—71—D. C. Galle, 15,717.
Criminal procedure—Duty of Court to scrutinize defence—Reasons for rejectingdefence—Method of identification.
It is the duty of a Court to' scrutinize the defence put forward in a caseand if it is rejected, to give reasons therefor.
It is improper to allow witnesses the opportunity of seeing beforehand persons whom they will later be ordered to identify in an identiftca-tion parade.
^ PPEAL from a conviction by the District Judge of Galle.
H. V. Perera, K.C. (with him C. R. de Silva), for accused, appellants.
M.F. S. Pulle, C.C., for Crown, respondent.
Cur. adv. vult.
September 1, 1937. Hearne J.—
The case for the prosecution stands or falls by the question of identi-fication.
Apart from the question of whether the witnesses for the prosecutionhad the opportunity of identifying the first appellant it is very doubtfulwhether in giving evidence they were honest in saying that they dididentify him. The witness Charles who stated that he had seen the firstappellant on the night of the attack upon him and his companions andhad heard him speak did not mention his name- to the Police when he -made a complaint. In his evidence he stated that he knew the first
1 31 N. L. ft. 314.
268
HEARNE J.—The Kina v. Tholis Silva.
appellant well and had mentioned his name to the Police, but this isinconsistent with the evidence of P. S. 1253 Velappen who is emphaticthat the complainants “ could give no names but said they could identify ”their assailants. The witness Upasakappu stated that he knew “ Tholis(the first appellant) as did the lorry driver Charles ” but that he mentioned"no names at the Police Station as I was not asked”. The fact thatthese witnesses “ knew ” the name of one of their assailants and did notmention his name makes their evidence suspect at least in regard to thefirst appellant.
But there is another reason why the conviction of the first appellant isunsatisfactory and cannot be affirmed. His defence of an alibi in regardto which he gave evidence himself and called a witness in support wasapparently not considered at all. The evidence for the defence must bescrutinized and failure to do so is an injustice to the accused “ unless it isoverwhelmingly obvious ” as the Chief Justice remarked in a recent case"that the witnesses are so contradictory of each other so as not to be"worthy of credit . . . . ” That would not be a fair criticism of thewitnesses in the present case. They were not contradictory and if theirevidence Was believed the first appellant would have been entitled to beacquitted. “ A defence, and that applies as much to an alibi or to anyother defence, unless it is on the face of it fantastic or contradictory, mustbe properly examined, and if it is rejected reasons must be given ”.
In regard to the remaining appellants their “ identification ” was farfrom being satisfactory. It does not appear in the evidence in whatcircumstances Charles and Upasakappu identified the fourth appellant(accused No. 5), if before the Police Court proceedings they identified himat. all, but the evidence of Velappen is to the effect that the second andthird appellants (accused Nos. 3 and 4) were brought to the Police Stationand were thereupon identified by Charles and Upasakappu. In the caseof Williams (8 Crirn. App. Rep. 84), the court quashed a conviction whichdepended on the identification- of a man who _was seen by the identifyingwitnesses in the Police Station, not having been placed among others.The Court said that the mode adopted was not a proper one and theidentification could not be said to have been satisfactory. The methodof identification adopted in this case is to be strongly deprecated. ThePolice on hearing that the associates of Wijeratne were concerned withthe attack on the complainants may have arrested two of them onsuspicion, and the witnesses, as appears to have happened, merely said"Yes, these are two of the men who were in the gang”. The danger ofsuch a procedure is too obvious to be stressed.
The witness Alim had not known 'the accused previously. His evidence5s to the effect that “ he picked out the accused subsequently from othermen ”. What precisely he means it is difficult to say. There is noevidence of an identification parade havihg been held. Certainly neitherof the two police witnesses speaks of one. The convictions must beregarded as unsatisfactory.
I allow the appeals and acquit the appellants.
Set aside.