VIRAJ PERERA vs. ATTORNEY GENERAL

020-SLLR-SLLR-2010-V-2-VIRAJ-PERERA-vs.-ATTORNEY-GENERAL.pdf


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VIRAJ PERERA VS. ATTORNEY GENERALCOURT OF APPEALSISIRA DE ABREW, J.ABEYRATNE, J.
CA 155/2004HC COLOMBO 1947SEPTEMBER 1, 2, 3, 8, 2009
Penal Code – Section 3S6 – Section 359 – Evidence of witnessrejectedon a certain point-Can his evidence be accepted to establishanother point? – Falsus in uno • Falsus in Omnibus – Delay inmaking statement? Admissibility – Ingredients to prove a chargeunder Section 359? Abduction by Police?
The 1st – 6th accused were charged for abducting three persons withintention of secretly and wrongfully confining them (Section 356), the7th accused – appellant the OIC of the Police Station was charged forwrongfully keeping in confinement the said persons (Section 359). The7th accused was convicted of the offences leveled against him. The Highcourt held that the three persons were detained at the Police Stationbut did not fall into the category of arrested persons – but abductedpersons.
In appeal it was contended that once the evidence of a witness wasrejected on a certain point his evidence cannot be accepted to estab-lish another point and that the evidence of witness ‘J’ should not beaccepted in view of the delay in making his statement.
Held
The maxim “falsus in uno falsus in omnibus’ is not applicable inthe instant case. The maxim cannot be considered as the abso-lute rule and that the Judge in deciding whether or not he shouldapply the maxim must consider the entirety of the evidence of thewitness and the entire evidence led at the trial
The delay in making a statement to the Police has not shaken thecredibility of the witness.
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Per Sisira de Abrew, J.
“The appellant was the OIC of the Police Station. It was his dutyto maintain the detention and the diet register. The appellant hadadmitted to witness J, that three persons would be released afterrecording their evidence, the appellant knew that these personswere abducted persons – failure on the part of the appellant toenter their names in the detention register or the diet registerproves that he wrongfully kept them in confinement”.
To prove a charge tinder Section 359 the prosecution must provethe following ingredients
Person against whom the offence was committed is a personwho was kidnapped or abducted
The accused knew that the said person is a person who waseither kidnapped or abducted
The accused concealed or kept the said person inconfinement
When the accused concealed or kept the said person inconfinement, he did so wrongfully.
APPEAL from the Judgment of the High Court of Colombo.
Cases referred to
Q vs. Vellasamy – 63 NLR 265
Q vs Jubis – 65 NLR 505
R. P. Kendict vs. SI Police Norton Bridge – 66 NLR 424
Francis Appuhamy vs. Q – 68 NLR 437
Mohamed Faiz Ballish vs. Q – 1958 A1 167
Samaraweera vs. AG – 1990 – 1 Sri LR 256
Rienzi Arsakularatne for accused – appellant.
Sarath Jayamanne DSG for AG.
Octomber 15th 2009SISIRA DB ABREW J.
First to sixth accused in this case were charged forabducting Bandula, Padumasena, and Jayantha withthe intention of secretly and wrongfully confining them,
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. an offence punishable under Section 356 of the Penal Code.The 7th accused (the appellant) was charged for wrongfullykeeping in confinement the said persons which is an offencepunishable under Section 359 read with Section 356 of thePenal Code. After trial 1st to 6th accused were acquitted of thecharges but convicted the 7th accused (the appellant) of theoffences levelled against him. He was, on each count, sentencedto a term of seven years rigorous imprisonment (RI) and topay a fine of Rs. 5,000/- carrying a default sentence of oneyear RI. This appeal is against the said conviction and thesentence.
The case for the prosecution is that the Is* to 6thaccused took Bandula, Padumasena, and Jayantha into theircustody and brought them to Yakalamulla Police Stationand that thereafter the appellant, the OIC of YakkalamullaPolice station wrongfully kept them in confinement in the saidPolice Station from 20.6.90 to 4.7.90.
Sujatha, Siripala, Kusumawathi and Asilin said that1st to 6th accused took Bandula, Padmasena and Jayanthainto their custody and later they saw the said person inYakkalamulla Police Station [herein after referred to as thePolice Station). Sujatha, Kusumawathi and Asilin stated inevidence that they could identify the Is* accused because longprior to the arrest of the said persons he had come to theirvillage for inquires. In fact Sujatha said that she knew the 1staccused for about one year prior to the said arrest whichwas on 20.6.90. But the defence had produced evidence toprove that the 1st accused came to the Police Station only on10.6.90. Witnesses have said that the 2nd accused was in Policeuniforms. But the defence produced evidence that the2nd accused could not wear police uniforms since he wasa home guard. Asilin has said that his two sons includingJayantha went missing when they went to Imaduwa. Thus
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her claim that Jayantha was arrested by 1st to 6th accusedbecomes doubtful. The learned trial Judge after consideringall these matters did not rely on the evidence of the saidprosecution witnesses with regard to the arrest of thesaid persons and acquitted the 1st to 6th accused. Learnedtrial Judge observed that the evidence of the prosecutionwitnesses with regard to the identity of the 1st to 6thaccuse could not be accepted due to the difficulties in theiridentification and acquitted them but remarked that thisacquittal was not due to the fact that they gave falseevidence. Learned trial Judge accepted the evidence ofSiripala and Kusumawathi with regard to the detention ofthe said persons to prove the fact that the said persons weredetained in the Police Station. Learned President’s Counselcontended that once the evidence of a witness was rejectedon a certain point, his evidence cannot be accepted toestablish another point. He cited Queen vs. VellasamtQueen vs. Julis,2), RP Kandiah vs. SI Police Norton Bridge,3) andFrancis Appuhamy vs. Queen® to support his contention.
In Queen vs. Vellasamy [supra] Basnayake CJ held:“When evidence of a witness is disbelieved in respect of oneoffence it cannot be accepted to convict the accused of anyother offence.”
In Queen vs. Julis [supra] Basnayake CJ affter consideringthe decision in Mohamad Faiz Baltsh vs. The Queen® held:“that, by falsely implicating the 1st accused, the two witnessesgave false evidence on a material point. Applying the maximfalsus in uno, falsus in omnibus (He who speaks falsely on onepoint will speak falsely upon all), their evidence implicatingthe 4th and 5th accused should also be rejected. When suchevidence is given by witnesses, the question whether other
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portions of their evidence can be accepted as true should notbe resolved in their favour unless there is some compellingreason for doing so.”
In RP Kandiah vs. SI Police Norton Bridge (supra)Thambiah J remarked thus: “It is not permissible, in a criminalcase, to disbelieve a witness on a material point and, at thesame time, believe him on other points withput corroborativeevidence.”
If Francis Appukamay vs. Queen (supra) TS Fernando Jafter considering the Privy Council decision in Mohamad FaizBaltsh held: “The remarks contained in the judgment of thePrivy Counsil in Mohamed Fiaz Baltsh v. The Queen (supra)that the credibility of witnesses cannot be treated as divisibleand accepted against one accused and rejected againstanother (a) was inapplicable in the circumstances of thepresent case and (b) cannot be the foundation for a principlethat the evidence of a witness must be accepted completelyor not at all.” His Lordship Justice TS Fernando at 443further observed: “Certainly in this Country it is not anuncommon experience to find in criminal cases witnesseswho, in addition to implicating a person actually seen bythem committing a crime, seek to implicate others who areeither members of the family of that person or enemies of suchwitnesses. In that situation the judge or jurors have to decidefor themselves whether that part of the testimony which isfound to be false taints the whole or whether the false cansafely be separated from the true.”
In Samaraweera vs. The Attorney General this courtconsidered how the maxim falsus in uno falses im ominibusshould be applied. That was a case where “four accused wereindicted for murder on charges under sections 296, 315,
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314 of the Penal Code. At the end of the prosecution casethe Is* and 4th accused were acquitted on the directions ofthe Judge to the jury. At the conclusion of the trial the 2ndaccused was acquitted by the unanimous verdict of the jurywhile the 3rd accused-appellant was found guilty of culpablehomicide not amounting to murder on the basis of grave andsudden provocation on the count of murder and acquittedon the other counts. The main challenge to the verdict wason the ground that it was unreasonable having regard to thefact that the same two witnesses who testified against the3rd accused had testified against the 2nd accused who wasacquitted. Having disbelieved the two witnesses as againstthe second accused, the jury should not have accepted theirevidence against the 3rd accused – appellant. The maximfalsus in uno falsus in omnibus should have been applied.“His Lordship Justice PRP Perera observed thus: “The verdictwas supportable in that the acquittal of the 2nd accusedcould be attributable to the fact that vicarious liability on thebasis of common intention could not be imputed to him on theevidence even if the two witnesses were believed. The maximfalsus in uno falsus in omnibus could not be applied insuch circumstances. Further all falsehood is not deliberate.Errors of memory, faulty observation or lack of skill inobservation upon any point or points, exaggeration or mereembroidery or embellishment must be distinguished fromdeliberate falsehood before applying the maxim. Nor does themaxim apply to cases of testimony on the same point betweendifferent witnesses. In any event this maxim is not an absoluterule which has to be applied without exception in every casewhere a witness is shown to have given false evidence ona material point. When such evidence is given by a witnessthe question whether other portions of his evidence can beaccepted as true may not be resolved in his favour unless
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there is some compelling reason for doing so. The credibilityof witnesses can be treated as divisible and accepted againstone and rejected against another. The jury or judge mustdecide for themselves whether that part of the testimonywhich is found to be false taints the whole or whether thefalse can safely be separated from the true.”
In the instant case, the learned trial judge havingrejected the evidence of Siripala and Kusumawathi withregard to the identity of the accused who abducted Bandula,Padumasena and Jayantha used their evidence to establishthat the said three persons were detained at the Police Station.The detention of the three persons was witnessed byJayawickrama. The appellant even admitted to Jayawickramathat they were detained at the Police Station. Siripala saysthat he knows in and out of the Police Station since he was, onan earlier occasion, detained in the Police Station for 52 days.He even says that at certain times these three persons weredetained in a shed behind the Police Station. In these circum-stances can the court apply the maxim and decide that thesaid three persons were not detained at the police Station?I say no. For these reasons I hold that the maxim ‘falsus inunofalsus in ominibus’ ( He who speaks falsely on one pointwill speak falsely upon all) is not applicable in this case. Forthe above reasons I further hold that the said maxim can-not be considered as an absolute rule and that the Judge indeciding whether or not he should apply the maxim mustconsider the entirety of the evidence of the witness andthe entire evidence led at the trial. I therefore hold that thedecision of the learned trial Judge not to apply the maxim isright. For these reasons I reject the submission of the learnedPresident’s Counsel on this point.
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Learned Presidents Counsel next contended that theevidence of Jayawickrama should not be accepted in viewof the delay in making his statement to the police. The delay wasseven years. Jayawickrama, a politician in the area, says thatwhen relations of the said three persons informed about theirabduction, he went and inquired from the OIC of the PoliceStation then he (the appellant) told him that they would bereleased after recording their statements. He, on a severaloccasions, saw the said three persons in the police cell.When he, on a subsequent occasion, asked the appellantabout the three persons the latter informed him that they hadbeen released on bail. Learned defence counsel did not challengehis evidence. No suggestion was made to him that he was givingfalse evidence on the account of delay. One should not forget atthis stage the admission of the appellant made to him that threepersons were detained at the police station. Although hecould have made a statement to the police, he did not do so.His statement was recorded by Chief Inspector Jayasingheattached to the Commission Investigating into disappearancesof Persons. He who is not related to the relatives of thepersons abducted appears to be an independent witness.When one considers all these, matters, it has to be statedhere that delay in making a statement to the police has notshaken his credibility. Therefore the learned trial Judgewas right when he decided to accept his evidence. For thesereasons I reject the submission of the learned PresidentsCounsel on this point.
Now the question that remains for consideration iswhether the prosecution has proved the fact that Bandula,Padumasena and Jayantha were detained at the PoliceStation. I now advert to this question. Siripala who evenchopped fire wood during his 52 days of detention in the
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police station says that one day when he went to thePolice station the three persons were seated on a bench in thepolice station and spoke to Bandula. On other occasions hesaw them in the cell and in the hut. He says he could go tothe hut without much difficulty since he was known to thepolice officers as a result of his detention.
Kusumawathi the wife of Padumasena says that she sawall three in the police station and visited them in the PoliceStation from 20.6.90 to 3.7.90 and on certain occasions gavefood to her husband. I have earlier referred to the evidence ofJayawickrama who says that he saw the three persons in thePolice Station. When I consider the above matters, I hold thatthe prosecution has proved that Bandula, Padumasena andJayantha had been detained at the Police Station.
Now the question that must be considered is whetherthese three persons were arrested persons or abductedpersons. I now advert to this question. If they were arrestedpersons why didn’t the appellant enter their names in thedetention register and the diet register? ASP who was calledby the defence says when he visited the Police Station on25.6.90 and 28.6.90 he did not find these three persons inthe Police Station nor did he find their names in the detentionregister or diet register. Siripala says that on certain occasionshe saw them in the hut behind the Police Station. When Iconsider all these matters, I hold that these persons do notfall into the category of arrested persons.
Learned trial Judge at page 38 of the brief observedthat if a person is wrongfully detained at a police stationit has to be concluded that he was an abducted person.Learned Presidents Counsel contended that this was a wrongconclusion. It is possible for a police officer to wrongfully
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detain a person who was lawfully arrested. No doubt thepolice officer on this occasion violates the law. I thereforehold that above conclusion of the learned trial Judge iswrong. But this misdirection has not caused prejudice to theappellant since there is evidence to establish that threepersons were abducted persons. I have earlier held that thesethree people were detained at the police station. When theASP visited the Police Station these three persons were notat the Police Station and their names were not found in thedetention register or diet register. When I consider all thesematters, I hold that these three people were abducted per-sons. The appellant was the OIC of the Station. Thereforeit was his duty to maintain the detention register and thediet register. The appellant had admitted to Jayawickramathat three persons would be released after recording theirstatements. I therefore hold the appellant knew that thesethree persons were abducted persons. Prosecution has provedthat they were kept in confinement in the Police Station.Faiure on the part of the appellant to enter their names in thedetention register or the diet register proves that he wrong-fully kept them in confinement.
Section 359 of the Penal Code reads as follows:“Whoever, Knowing that any person has been kidnapped orhas been abducted, wrongfully conceals or keeps such personin confinement, shall be punished in the same manner asif he kidnapped or abducted such person with the sameintention or knowledge or for the same purpose as thatwith or for which he conceals or detains such person inconfinement."
To prove a charge under Section 359 of the Penal Codeprosecution must prove the following ingredients.
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Person against whom the offence was committed (personmentioned in the body of the charge) is a person who waskidnapped or abducted.
The accused knew that the said person is a person whowas either kidnapped or abducted.
The accused concealed or kept the said person inconfinement.
When the accused concealed or kept the said person inconfinement, he did so wrongfully.
Prosecution as I pointed earlier has proved the abovefour ingredients in the 4th and 5th counts. Jayarathne was ason of Asilin who said in her statement to the Police that hertwo sons after going to Imaduwa on 20.6.90 did not returnhome. I therefore do not want to affirm the conviction of the6th count. I acquit the appellant on the 6th count and set asidethe conviction and the sentence on the said count.
For the above reason I hold that the learned trial Judgehas rightly convicted the appellant for 4th and 5th counts. Itherefore affirm the convictions and the sentences on the 4thand 5th counts and dismiss the appeal. Terms of imprisonmenton the 4th and 5th counts should run concurrently. The appellanton bail should submit to his bail. The sentence affirmed bythis court on the 4th and 5th counts should be implementedfrom the date on which he submits to his bail or is broughtbefore the trial court.
ABEYRATHNE, J. -1 agree.
Corwiction and the sentence on the 6th count are set aside.
Convictions and the sentences on the 4th and 5th counts areaffirmed.
appeal dismissed – subject to variation