THE SOLICITOR-GENERAL, Appellant and NADARAJAH MUTHURAJAH, Accused-Respondent

005-NLR-NLR-V-79-1-THE-SOLICITOR-GENERAL-Appellant-and-NADARAJAH-MUTHURAJAH-Accused-Respondent.pdf


Solicitof-Ueiteral c. u<turajan .'l mnurojaao i
Present: Wijayatilake, J. and Pathirana, J.THE SOLICITOR-GENERAL, Appellant and NADARAJAHMUTHURAJAH, Accused-Respondent
S. C. 6/73—D. C. Mannar, 212
Criminal Procedure Code, section 338(2)—Computation of time
within which an appeal must be preferred—Whether from
elute of verdict or dale on which judgment was delivered.
The District Judge at the conclusion_pf the trial delivered hisverdict on 27th April, 1973 finding the accused not guilty. He did notdeliver the reasons on that day but p,ut if off for 10th May, 1973, onwhich date under the heading of ‘ Judgment ’ he delivered his reasons•for acquitting the accused. The Solicitor-General filed petition ofappeal on 11th June, 1973. Preliminary objection was raised on behalfof the respondent that the appeal was filed out of time by reasonof the provisions of section 338 f2) of the Criminal Procedure Code.
Held : That the period of time within which an appeal shouldbe preferred must be calculated from the date on which the reasonsfor the decision are given and not from the date on which theverdict was entered.
Harumanis Appuhamy v. Inspector of Police, Bandaragama, 66N.L.R. 526 followed.
Kershaw v. Rodrigo, 3 C.W.R. 44, King v. De Silva, 3 C.W.R. 235and Jones v. Amaraweera, 41 N.L.R. 263 not followed.
Appeal—Power of Appellate Court to interfere with order of a
lower Court on a question of fact—Grounds on which it could so
interfere.
Held : That an appellate Court has the power to review at largethe evidence upon which the order of acquittal was founded and toreverse that decision having given due weight to the opinion of thetrial judge. A court is justified in interfering with the lower Court’sdecision where there is no question of the credibility of witnesses,but the sole question is the proper inference to be drawn fromspecific facts.
Cases referred to :
Kershaw v. Rodrigo, 3 C.W.R. 44.
King v. de Silva, 3 C.W.R. 235.
Jones v. Amaraweera, 41 N.L.R. 263 ; 15 C.L.W. 18.
Haramanis Appuhamy v. Inspector of Police, 66 N.L.R. 526.
Sheo Swarup v. King Emperor, AIR 1934 P.C. 227.
Benmax v. Austin Motor Co. Ltd., (1955) 1 All E. R. 326.
S. L. Gunasekera, State Counsel for the appellant.
S. Sharvananda with S. Mahenthiran for the accused-respon-dent.
Cur. adv. vult.
64
PATHIR AN A, J.— Solicitor-General v Nadarajah Mulhurajah
November 22, 1973. Pathirana, J.
The Solicitor-General appeals against the order of acquittalmade by the District Judge in this case where the accused-respondent was charged: (1) with having on the 4th of July,1970 being a Public Servant, to wit: a Grama Sevaka, soliciteda gratification of a sum of money from D. Dhanapala, an offencepunishable under Section 19 of the Bribery Act; (2) with havingon the 24th of July, 1970, accepted a gratification of a sum ofRs. 50 from the said D. Dhanapala, an offence punishable underSection 19 of the Bribery Act.
The learned District Judge at the conclusion of the trial on
put off the case for addresses for 30.3.1973. On 30.3.1973as State Counsel was ill the case was put off for 26.4.1973. On
the learned District Judge by his verdict found theaccused not guilty and acquitted him. He did not deliver thereasons on that day as some of the documents marked by theprosecution had not been filed of reocrd and this was broughtto his notice only that morning. Reasons were put off for
On 10.5.1973 under the heading ‘Judgment’ he deli-vered his reasons for acquitting the accused.
The petition of appeal was filed by the Solicitor-General on
;
At the argument before us learned Counsel for the accused-respondent, Mr. Sharvananda, raised a preliminary objectionthat the appeal was filed out of time, and therefore, it shouldbe rejected. His contention was that under Section 338 (2) ofthe Criminal Procedure Code the period of 28 days within whichthe petition of appeal must be preferred should be calculatedfrom the date the verdict was delivered, which he submitted wasthe date when judgment was delivered, and as such the appealwas preferred out of time. Learned State Counsel, Mr. Gune-sekera, on the other hand submitted that the period of 28 daysshould be calculated from the date on which the judgment,namely the reasons, were delivered, that is, 10.5.1973, in whichevent the appeal was preferred in time.
PATHTRAHA, J.—Solicitor-General v. Nadarojah Muthurajah
65
Mr. Sharvananda relied on Kershaw vs Rodrigo, 3 C.W.R. 44,where Ennis J., held : “ that in a case of an acquittal (that isthe record of a verdict or finding of not guilty) the pronounce-ment of the fact is the judgment.” He considered section 304and 306 of the Criminal Procedure Code and howeverobserved : —
“ From Section 306 it would seem that the judgment issomething other than the reasons for the decision for thereasons have to be recorded in the judgment and only incases where there is an appeal, while Section 304 indicatesthat the judgment is not necessarily contained in theverdict. ”
He goes on to say that: —
“ A finding of not guilty is final and the record of it is averdict, and an order and is final on being pronounced asnothing more remains to be done to conclude the proceed-ings. ”
He then proceeds to draw a distinction in the case of a findingof guilt and states that : —
“ there are clear indications in the Code that finality isnot reached till sentence is pronounced ; ” and that, “ In thecase of a conviction the judgment must necessarily followthe conviction in a separate pronouncement. ”
Ennis J., in King vs. De Silva, 3 Ceylon Weekly Reporter 235held : —
“ Where the District Judge recorded a judgment convic-ting the accused and sentencing him to a fine and gave thereasons for his decision the following day, that the computa-tion of the time within which an appeal should be preferred,must be made from the date on which the conviction andsentence were recorded and not from the date on which thereasons for the decision were given. ”
The principal laid down in these two cases was followed bySoertsz, A. C. J., in Jones vs. Amaraweera, 41 N. L. R. 263 whoheld that: —
“ The computation of time within which an appeal shouldbe preferred must be made from the date on which theconviction and sentence were recorded and not from thedate on which the reasons for the decision were given. ”
06
PAT HI HAN'A, S .Solicitor-General v. Nadarajah Mnthitrajah
The learned State Counsel, however, relied on the decision ofSri Skanda Rajah, J., in the case of Haramanis Appuhamy vs.Inspector of Police, Bandaragama, 66 N.L.R. 526 where he heldnot following Jones vs. Amaraweera that: —
“ Where an accused person is convicted and sentenced,the time within which an appeal should be preferred mustbe computed from the date on which the reasons for thedecision are given, and not from the date of conviction andsentence. ”
Having examined these cases and also the relevant sections ofthe Criminal Procedure Code, I prefer to follow the judgment ofSri Skanda Rajah, J., in Haramanis Appuhamy vs. Inspector ofPolice, Bandaragama.
Under Section 338 in Chapter XXX of the Criminal ProcedureCode subject to certain provisions any person who shall be dis-satisfied with any judgment or final order pronounced by anyMagistrate’s Court or District Court in a criminal case or matterto which he is a party may prefer an appeal to the Supreme Courtagainst such judgment for any error in law or in fact by lodgingwithin 10 days from the time of such judgment or order thepetition of appeal addressed to the Supreme Court. Under Sec-tion 338 (2) subject to the provisions of Section 335, the Attorney-General may prefer an appeal to the Supreme Court against anyjudgment or final order pronounced by a Magistrate’s Court orDistrict Court in any criminal case or matter and where he soappeals, or where he sanctions an appeal, the time within whichthe petition of appeal must be preferred shall be 28 days.
Under Section 336, “there shall be no appeal from an acquittalby the District Court or Magistrate’s Court expect at the instanceor with written sanction of the Attorney-General. ” Under section393 this power may be exercised by the Solicitor-General.
I have next to consider Section 304 of the Criminal ProcedureCode which states that : —
“ The judgment in every trial under this Code shall bepronounced in open Court either immediately after the ver-dict is recorded or at some subsequent time of which due
PATHIRANA, J.—Solicitor-General v. Nadarajah Mulhurajah
67
notice shall be given to the parties or their pleaders, and theaccused shall if in custody be brought up or if not in custodyshall be required to attend to hear judgment delivered exceptwhen his personal attendance during the trial has been dis-pensed with and the sentence is one of fine only. ”
In my view Section 304 draws a clear distinction between a ver-dict which is a finding where the accused is guilty or not guiltyof the charge and the judgment.
Under Section 190 in the Magistrate’s Courts at the conclusionof a trial, the magistrate shall record a verdict of acquittal orguilt. Likewise under section 214 at the conclusion of the trialin the District Court, the District Judge shall forthwith or withinnot more than twenty-four hours record a verdict of acquittalor conviction.
Section 304 which is the first Section in the Chapter XXIVheaded ‘Of the Judgment’, states that, ‘The judgment in everytrial under this Code shall be pronounced in open Court. ’ Inmy view, therefore, both in the Magistrate’s Court and DistrictCourt the Code speaks not only of the verdict, but also requiresthat in every trial under the Code a judgment shall be pronounc-ed in open Court.
Section 306 then proceeds to say what the judgment shallcontain. Section 306 (1) is a very important section in thisconnection. It says that: —
“The judgment shall be written by the District Judge orMagistrate who heard the case and shall be dated and signedby him in open Court at the time of pronouncing it, and ineases where appeal lies shall contain the point or points fordetermination, the decision thereon, and the reasons for thedecision. "
I, therefore, agree with Sri Skanda Rajah, J., when he statesthat, “ This would clearly indicate that in cases where appeallies the point or points for determination should be set out andthe reasons for the decision should also be given. If one givesthis interpretation to the word “judgment” in section 338 (1)
68
PATHIEANA, J.—Solicitor•General v. Nadarajah Muthurajah
one cannot resist the conclusion that an appeal can be filedwithin 10 days’ of the delivery of the reasons (judgment) Imay add that in the case of an acquittal there is no appeal byan aggrieved party unless it is at the instance or with the sanc-tion of the Attorney-General. It would be certainly impossiblefor the Attorney-General to consider the question whether heshould appeal or sanction an appeal unless he had not only theverdict of the Court, but also reasons of the Court, and the partydissatisfied with the verdict in a case cannot set out the reasonsfor his asking the Attorney-General for his sanction to appealunless he peruses the reasons given by the Court in theJudgment.
I do not see any reason also for the distinction that was soughtfor by Mr. Sharvananda that in the case of an acquittal theperiod within which an appeal should be filed should be reckonedfrom the date the verdict was given, whereas in the case of afinding of guilt it should be from the date the reasons are given.This was apparently the view taken by Ennis J., in Kershaw vs.Rodrigo. In view of the express provision of section 306 (1)that, “ in cases where appeal lies, the judgment shall contain thepoint or points for determination a decision thereon and thereasons for the decision, ” I do not see any reason for this-distinction.
I would, therefore, hold that in reckoning the time withinwhich an appeal Should be preferred to the Supreme Court, theword “ judgment ” in section 338 means, the date on which thereasons for the decision are given. The preliminary objectionis, therefore, over-ruled.
An Appeal Court is, no doubt, reluctant to interfere with anorder of acquittal, but at the same time I must say that theCriminal Procedure Code draws no distinction regarding thepowers of this Court in dealing with the appeal from an orderof acquittal and an appeal from a conviction. The rules andprinciples which should generally guide an Appellate Court ininterfering on a question of fact with an order of acquittal areset out by the Privy Council in the case of Sheo Swamp vs.King Emperor, AIR 1934 P. C. 227. Lord Russel of Killowenin delivering the judgment of the Privy Council observed thatthere was no foundation for the view that the Appellate Court
PAT i±l RAN A, J.—Solicitor – Gene ral v. Ncvlirajah Mu’-hurajth
69
has no power or jurisdiction to reverse an order of acquittalon a matter of fact except in cases in which .the lower Courthas “ obviously blundered ” or has “ through incompetence,stupidity or perversity ” reached such “ distorted conclusions asto produce a positive miscarriage of justice or has in some otherway so conducted itself as to produce a glaring miscarriage ofjustice or has been tricked by the defence so as to produce asimilar result.” I would adopt the words of Lord Russel whenhe considered the corresponding provisions of the IndianCriminal Procedure Code in this connection with the necessarychanges in the context and state that under our Code this Courthas full power to review at large the evidence upon which theorder of acquittal was founded, and to reach the conclusionthat upon that evidence the order of acquittal should bereversed. No limitation should be placed upon that powerunless it be found expressly stated in the Code. But in exerci-sing the power conferred by the Code, and before reaching itsconclusions upon facts, this Court should and will always giveproper weight and consideration to such matters as: —
“ the views of the trial Judge as to the credibility of the
witnesses ” ;
<v the presumption of innocence in favour of the accused,
a presumption certainly not weakened by the factthat he has been acquitted at the trial.” ;
“ the right of the accused to the benefit of any doubt ” ;
and
“ the slowness of an Appellate Court in disturbing a
finding of fact arrived at by a Judge who had theadvantage of seeing the witnesses.”
Different phraseology has been used in describing the groundsupon which an Appeal Court interferes with an order of acquittalsuch as: —
“Substantial and compelling reasons”;
“ Good and sufficient cogent reasons ” ;
“ Strong reasons ” ;
“ Manifestly wrong conclusions.”
But these epithets have been never intended to curtail thepower of an Appellate Court in an appeal against an acquittalto review the entire evidence and come to its own conclusions,but merely serve as guide lines.
70
P ATEUR AN A, J.—Solicitor-General v- Nadarajah MiUhurajah
Learned State Counsel has brought to our notice instances inthis case where* the learned District Judge has misdirected him-self on questions of fact, drawn wrong inferences and failed toevaluate the evidence. In particular, he strongly urged for ourconsideration the failure of the trial Judge to consider theevidence of an important prosecution witness B. C. Abeyratne,the Police Sergeant, who accompanied witness Dhanapala and,who was an eye witness to the crucial event in the case, namely,the handing over of the bribe of Rs. 50 to the accused. Theevidence of Abeyratne, if accepted, would constitute strongcorroborative evidence of witness Dhanapala. According toAbeyratne he was requested by Inspector of Police Moorthy,also a witness for the prosecution to accompany Abeyratne. Hewas given Rs. 50 in ten rupee notes after their numbers werenoted down. He was instructed to go with Dhanapala to theaccused’s house and to pose as Dhanapala’s brother and discussabout the land and give the money if the accused demanded themoney. When they met the accused he asked Dhanapalawhether he brought the money. The accused asked for Rs. 100,but Dhanapala said that he could not give the money. Where-upon the accused asked for Rs. 50. Dhanapala asked the accusedwhether if he gave Rs. 50 he would get the permit for the land.The accused replied that it was alright. Dhanapala then askedhim for the Rs. 50 and Dhanapala gave this money to theaccused. The accused called one Thurairajah and handed overthe money to him. The accused next called for one Rasiah andtalked something with Thurairajah and Thurairajah gaveRs. 10 out of the Rs. 50 to Rasiah. Rasiah took the Rs. 10 andwent behind the house. A signal was given to Inspector Moor-thy, who came to the spot when Dhanapala and Abeyratnenarrated to Moorthy what happened. Thurairajah was searchedand Rs. 40 was found in his pocket, the numbers of which talliedwith the numbers which Moorthy had noted down in his note-book. The accused tried to escape and a crowd collected.
Inspector Moorthy in his evidence said that when he receivedthe signal from Abeyratne, he went to the spot ,and saw a personrunning away from the rear of the compound. This was pre-sumably Rasiah. He supported Abeyratne’s evidence that whenThurairajah was searched Rs. 40 was found in his shirt pocket,the numbers of which tallied with the numbers which he hadnoted down.
PATHIBANA, J.—Solicitor-General v. Uadarajah Muthurajah
71
The accused in his defence stated that Dhanapala and anotherperson, who was a member of the Bribery Squad, came up tohim. Dhanapala held out a bundle of notes and stretchedtowards him and asked him to take it. He did not take themoney. Then the other person, that is, witness Abeyratne, tookthe bundle of notes from Dhanapala’s hands and put it intoThurairajah’s pocket and asked him to take it. Thurairajah toldhim that he was forced to take the money and, therefore, hetook it. The accused admitted that he gave Rs. 10 to Rasiahasking him to buy a bottle of arrack and Rasiah left with theRs. 10.
The defence called Thurairajah. No doubt, he supported theaccused’s version, and also the evidence of the prosecution thatthe sum of Rs. 40 was taken from his pocket. He was contra-dicted by his statement to the police, which is marked P6,wherein he had stated that two persons came and gave moneyto the accused. The accused gave that money to him. Theaccused then called Rasiah and took Rs. 10 from him (Thurai-rajah) and gave it to Rasiah. Despite this very material con-tradiction in the evidence of Thurairajah, the learned DistrictJudge, in the course of his judgment observed as follows: —“ The fact that the money had been recovered in the possessionof Thurairajah (who was not called by the prosecution butcalled by the defence) lends support to the defence version thatthe money in fact had been handed over to Thurairajah.Otherwise there is no reason why the accused did not have themoney in his possession.” Although the statement P6 provedas a contradiction, is not substantive evidence, but it is certainlyevidence which discredits the testimony of Thurairajah on avery material point. Dealing with this aspect of the matterthe learned District Judge states:— “Although Thurairajah hasbeen contradicted by his former statement to the police, the factremains that Thurairajah had not supported the case for theprosecution and, therefore, there is no corroboration by bestevidence of the fact that the money had been handed over toThurairajah by this accused.” I must say that the learnedDistrict Judge had come to a conclusion which is manifestlywrong and which is not supported by the evidence in the case.
72
PATHlRA_NA, J.—Solicitor.General v. Nadarajah Muthurajah
There was the evidence of Sergeant Abeyratne which, ifaccepted, supports the evidence of Dhanapala that money washanded over to the accused and the accused thereafter handedover the money to Thurairajah. The learned District Judge hascompletely ignored the evidence of Abeyratne in this connectionand failed to consider his evidence, which, if accepted, stronglycorroborates Dhanapala’s evidence in this regard. I find noreason given in the judgment why the evidence of Abeyratneshould be completely ignored when he was in a sense anindependent witness to the transaction. He has not examinedand considered aBBPTevidence of this eye witness bearing on themain incident in the case and attached no value at all to thisevidence This itself is, to my mind, a substantial and compell-ing reason for interfering with the verdict of acquittal.
■>
There is, therefore, no question which arises regarding thecredibility of the evidence of witness Abeyratne in this casebecause the learned District Judge had failed to consider hisevidence at all. I am justified in interfering with the findingof the learned District Judge also on the principle set out byLord Reid in Benmax vs. Austin Motor Co., Ltd., (1955) Volume1 A.E.R. 326 : “ Where there is no question of the credibilityof the witness, but the sole question is the proper inference tobe drawn from specific facts, an Appellate Court is in as gooda position to evaluate the evidence as a trial Judge, and shouldform its own independent opinion, though it will give weightto the opinion of the trial Judge.”
I am, therefore, of the view that the learned District Judgecame to a manifestly wrong conclusion in acquitting the accusedin this case There are substantial and compelling reasonsbefore us to set aside the order of acquittal. In doing so, I ammindful of the rules and principles I have quoted above.
therefore, set aside the order of acquittal. Learned StateCounsel submitted that he did not seek to substitute a verdictof conviction instead, but was satisfied if we order a re-trial.We, therefore order a re-trial of the accused-respondent on thecharges in the indictment before another District Judge.
Wijayatilake, J.—I agree.
Re-trial ordered.