W. L. SIRISENA and 6 others, Appellants, and THE QUEEN, Respondent

084-NLR-NLR-V-72-W.-L.-SIRISENA-and-6-others-Appellants-and-THE-QUEEN-Respondent.pdf


SiHsena v. The Queen
3S9
[Court of Criminal AppealJ
1969Present: Alles, J. (President), Wijayatilake, J.,and Pandita-Gunawardene, J.VV. L. SIRISENA and 6 others, Appellants, and THE QUEEN,
Respondent
C. C. A. ArPEALS 41-47, with Application's 54r-60, of 1969
S. C. 235(67—M. C. Horana, 4565S
Criminal Procedure Code—Section 122 (3)—Scope—Charge of murder—Joint offenders—Liability to be convicted of lesser offence of culpable homicide on the ground ofknowledge—Common intention—Penal Code, ss. 32, 33, 35, 36.
(i) By section 122 (3) of the Criminal Procedure Code, “ No statement madeby any person to a police officer or an inquirer in the course of any investigationunder this Chapter shall be used otherwise than to prove that a witness made adifferent statement at a different time, or to refresh the memory of the personrecording it”
Held, that in the opening sentence of Section 122 (3) no distinction is intendedbetween the ora! statement or oral evidence of such statement and its writtenrecord. The statement therefore in whatever form cannot be used to corroboratethe evidence of the witness. Such corroborative evidence may, however,bo elicited by the Court in the course of contradicting a false answer given bythe police officer when, while giving oral evidence, he refers to the writtenrecord for the purpose only of refreshing his memory, without the necessity ofproving the written record.
Per Curiam : “ In view of the frequent occasions when tho interpretation ofSection 122 (3) has come up for consideration in our Courts we are constrained todraw tho attention of tho legislature once again to the necessity of redraftingSection 122 (3). ”
(ii) In a prosecution for murder, joint offenders can be convicted, by virtue oftho provisions of section 32 of the Penal Code, of the lesser offence of culpablehomicide on tho ground of knowledge. In such a cose, it is open to the Judgeto direct the jury to consider the verdicts of murder, culpable homicide andgrievous hurt on the basis of joint responsibility.
—J 11012 (2/70)
300
AJLLES, J.—Sirisetia v. The Queen
Appeals against certain convictions at a trial before the SupremeCourt.
G. E. Chitly, Q.C., with A. M. Coomarasicamy, K. Sivanandan,G. E. Chitty (Jnr.) and T. S. P. Senanayake (assigned), for the accused-appellants.
A. C. de Zoysa, Senior Crown Counsel., with Kenneth Seneviratne,Crown Counsel, for the Crown.
– Cur. adv. vull.
August G, 19G9. Alles, J.—
Seven accused were charged in this case with the murder of oneJayasekera. At the conclusion of the trial by divided verdicts of fiveto two the 1st, 2nd and 3rd accused were convicted of culpable homicidenot amounting to murder and the 4th to the 7th accused were convictedof voluntarily causing grievous hurt. The 1st and 2nd accused weresentenced to seven years rigorous imprisonment, the 3rd accused tofive years simple imprisonment, the 4th and 5th to two years rigorous. imprisonment and the Gth and 7th to six months rigorous imprisonment.Pending their appeal to this Court the 3rd accused died and the presentappellants are the other accused. The 1st, 2nd ancl 4th appellants arebrothers and the 5th and Gth appellants also brothers. The two setsof brothers are related to each other as cousins. At the hearing of thisappeal Counsel for appellants commented on the strange coincidence ofthe able bodiccl men of two families being jointly charged, suggestingthereby that some of them may have been falsely implicated but thisis a comment that should properly have been made to the jury for theirconsideration who, in spite of this relationship, chose to convict allthe accused.
The deceased Jayasekera was the recently appointed watcher onHalbarawa Estate, to which post the 3rd accused had also been anapplicant. As a result of a long standing feud, the families of theappellants were not well disposed towards the family of the deceased.
On the 2Sth of June, the deceased visited the house of his motherScclcrawathie who lived in the neighbourhood of the estate, spent themorning at his mother’s house and left for Halbarawa Estate about2 p.m. About 4.30 p.m. Sedcrawathie and her daughter Kamalawathicwere attracted by hoo shouts, the barking of clogs ancl the shouts ofpeople from the direction of the estate ancl ran in that direction. \ henthey haci proceeded some distance they heard the voice of the deceasedand saw the Gth and 7th appellants holding him from cither side. Theoth appellant then jumped forward and struck the deceased on the headwith a club. As he was assaulted the Gth and 7th appellants releasedhim and immediately the 4th appellant Emis struck him again on the
ALLES, J-—Siriscna r. The Queen
391
head with a club. Then the 1st, 2nd and 3rd accused who were presentarmed with knives stabbed the deceased. As be was stabbed, thedeceased collapsed and Scdcrawathic and Kamalawathie ran towardsthe deceased to hold him. As they ran forward the 1st and 2nd appel-lants tried to stab them but failed. The two women went up to. thedeceased and raised cries. According to Kamalawathie at that stagethe 4th appellant pushed them aside and the 1st- and 2nd appellantscarried the deceased and took him away. The two women followed thedeceased some distance and then the 1st and 2nd appellants dropped thedeceased on the ground and chased them with knives. An uncle of the5th appellant then arrived on the scene and intervened sa3'ing, “ Are youfellows trying to kill these two also after you killed that man ”. Theappellants then left the scene and went away. When the two womenwent up to the place wliere the deceased lay fallen they found him dying.There is no doubt that the deceased was the victim of a murderous attackwith knives and clubs. The autopsy revealed that the deceased hadsix external injuries—four stab wounds on the chest and abdomen andtwo lacerated injuries on the head. The injury over the abdomen hadcut the small intestine and the right lobe of the liver and two of thestab injuries on the chest had cut the lung. Underling the head injurieswas a linear fracture of the parietal bone. The Doctor expressed theopinion that the injury to the lung was necessarily fatal while the otherinjuries on the chest were sufficient in the ordinary course of nature tocause death. In regard to the injuries to the head the Doctor was ofthe view that it was the result of two separate blows although he didnot exclude the possibility of both injuries being caused by one blow.
It was the submission of the defence at the trial that Sederawathie andKamalawathie were not e3*e-witnesses to the assault and that they werenot present at the time of the transaction, having gone to attend afuneral at the relevant time. The jury however have discounted thissuggestion and accepted their evidence and we must therefore proceedon the basis that their account of the transaction has been acceptedby the jurr.
The first matter raised by Mr. Chitty was that the defence wasprejudiced by the inability of Queen’s Counsel and Junior Counsel, whoappeared for the appellants at the abortive trial, to appear at the present-trial, thereby depriving the appellants of the services of Counsel of theirchoice. It was submitted that both Senior and Junior Counsel wereunable to appear due to circumstances beyond their control and that theapplication for a postponement of the trial should have been allowed.
It was also urged that Counsel who had been assigned to defend theappellants being a Tamil and unfamiliar with the Sinhala language washandicapped in the conduct of the trial by not being able to obtaininstructions from his Sinhalese clients. We are unable to agree thatthis was a substantial ground for obtaining a postponement of the trial.
If retained Counsel was unable to appear, the Proctor instructing themshould have made an application for a postponement. At least he couldhave been present in Court to watch the interests of his clients. When
392
ALL.ES, J.— Siriaena v. The Queen
Counsel offered himself for assignment and when the appellants agreedto be defended by assigned Counsel of their choice, it must be assumedthat Counsel was able to obtain proper instructions from his clients andthat such instructions could properly be given by the clients to theirCounsel. No such objection was taken by the appellants to the conductof the trial by assigned Counsel, the only application being made by thesecond appellant for time to have the services of retained Counsel.From the conduct of the trial by assigned Counsel it is quite apparent tous that the proceedings had not in any way suffered by the trial beingconducted by assigned Counsel. The witnesses for the prosecutionhave been cross-examined exhaustively on all relevant matters andrelevant submissions have been made to Court. Mr. Chitty wasconstrained to admit that the trial had in no way been prejudiced byits conduct by assigned Counsel and was only able to base an argumenton the rather tenuous ground that the appellants would have preferredSenior Counsel to conduct the trial. We arc therefore unable to saythat on this ground the appellants have in any way been prejudiced.
It was next submitted by Counsel that there was a misdirection inregard to the burden of proof. In explaining * reasonable doubt ’ thelearned Commissioner has given the following direction :—
‘ In fact a reasonable doubt means nothing more than a doubt for
which you can give a substantial reason.’
It was the submission of Counsel that to require a ‘ substantial *reason for the creation of a doubt, the Jury were invited to expect ahigher burden than was necessary from the defence to disprove theprosecution case. We are unable to agree with, the submission in thecontext of this summing-up. It seems to us that what the learned Judgehad in mind was a ‘substantial reason ’ as opposed to a ‘fanciful andimaginary reason’. Although the adjective ‘substantial ’ is inappropriate,in the light of his very fair summing-up on the burden of proof, weare of the view that it could not have misled the jury and caused anyprejudice to the accused. It was also submitted in this same connectionthat the learned trial Judge gave a wrong impression to the Jury whenhe referred to certain items of evidence which he described as comingfrom an independent source and tending to corroborate the evidence ofthe eye-witnesses. The evidence in point, to which attention has beendrawn by the Judge, was the medical evidence of the injuries on thedeceased and the circumstantial evidence of the presence of blood stainsat the scene which were observed by the Police. As Counsel for theappellants correctly submitted this evidence could not be strictly desig-nated as independent evidence which corroborated the evidence of theeye-witnesses. Even if the witnesses were not present at the time of thetransaction, as suggested by the defence, they could have testified tothese matters if they arrived on the scene at a later stage. Independentevidence that tends to corroborate a witness must be evidence whichtends to connect the accused with the crime. This is the usual direction
•ALLES, J.—Siriaena v. The Queen
393
given in those cases which require corroboration in law and learnedCounsel for the appellants was justified in his criticism of the Judge’slanguage. The language used by the Judge is no doubt unfortunate,but we do not think, having regard to the other parts of the chargewhere the Judge has correctly directed the jury on the burden of proof,that this direction would have misled the jury to accept the evidence ofKamalawathie and Scderawathie only for the reason that they testifiedto this so called * corroborative evidence
It was submitted by Mr. Chitty that even accepting the evidence ofKamalawathie and Scderawathie, the complicity of the appellants wasinvolved in some measure of doubt and consequently he urged that, atthe least, the appellants were entitled to a re-trial.
In regard to the 6th and 7th appellants it was his submission that theevidence did not establish beyond reasonable doubt that they held thedeceased with the intention of facilitating-the 5th appellant-to-cause -grivous hurt or that they shared a common intention with the otherappellants to commit the offence of causing grievous hurt. In dealingwith the case of the Gth and 7th appellants the learned trial Judge askedthe Jury to consider whether they entertained a common murderousintention not only with the 4th and 5th appellants but also with the 1st,2nd and 3rd appellants, in which case even though they held the deceasedand moved away they would be guilty of murder. The alternative putto the jury was to acquit them. On the verdicts of the jury, it must beassumed that the jury negatived the possibility of a common murderousintention in regard to these two appellants but found that they shared acommon intention with the 4th and 5th appellants to commit the offenceof voluntarily causing grievous hurt, which was a verdict that was possibleon the evidence. The convictions of the 6th and 7th appellants weretherefore justified on the evidence.
In regard to the 4th appellant, the submission of Mr. Chitty wasthat there was inadmissible evidence led against him which prejudicedhim in his defence. Kamalawathie had stated in cross-examination thatshe told the Police that the 4th appellant had hit the deceased on thehead with a club. In the course of the trial it would appear that assignedCounsel had been furnished with the extracts of the Information Bookby the Court. It is not clear, for what reason and on what ground, thisconcession had been made to the defence. When Police Inspector Pererawho had recorded Kamalawathie’s statement was being cross-examinedthe following question was put to her by Counsel:—
1043. Q. In the course of her statement did Kamalawathie tell youthat the 4th accused Emis Singho dealt a blow on the headof the deceased with a club . . . . ?
394
ALL.ES, J.—Sirisena v. The Queen
Before an answer could be given Crown Counsel interposed and therecord reads as follows :—
Crown Counsel:
M3' Lord, my learned friend is seeking to make a point of it thatthere is no reference to Emis giving a blow with a club. Mylearned friend should not create tlie impression that Emis is notmentioned totally.
Court to defence Counsel:
You can mark if you want this passage ‘ At the time of the attackI saw Emis armed with a club ', that Ivamalawathie has stated inher statement that at the time of the attack she saw Emis armedwith a club.,
Defence Counsel:
Very well, I will mark that passage as D 1 A.
It is apparent from the record that although Crown Counsel did notdispute that Ivamalawathie could be contradicted from her Police state-ment, he insisted and the Court agreed, that the written record shouldbe produced lest a wrong impression be created if the answer toQuestion 1043 was in the negative that the 4th appellant was never atthe scene.
It may now be accepted as settled law after the decision of the Privy-Council in Jlamasaniy 1 that in regard to the ‘statement’ in the openingsentence of Section 122 (3) no distinction was intended between the oralstatement or oral evidence of such statement and its written record.The statement therefore in whatever form cannot be used to corroboratethe evidence of the witness. Mr. Chilly’s complaint is that when thedefence was compelled to produce D 1 A there was placed before the jurymaterial which substantially corroborated Kamalawathie’s evidence of. the presence of the 4th appellant at the scene, which was categoricallyprohibited under the provisions of S. 122 (3). In his submission thedefence could elect whether it should prove, the contradiction by leadingoral evidence through the Police ofiicer or prove the written record.The ratio decidendi in Ramasamy was that a statement made by an accusedunder Section 27 of the Evidence Act was not subject to the prohibitionsin Section 122 (3) of the Code by virtue of the application of the maxim‘ Geiicralia specialibus non dcrogant ’—a view which had commendeditself to Pulle J. who was one of the five Judges who heard the earlierease of JinadasaViscount Radclifie only confined his observations on
Section 122(3) to the limited purpose of considering the interpretation ofthe word ‘statement’ in the opening sentence of the sub-section andhad no occasion to consider whether the oral statement of a contradictioncould be proved. There is however a hint in the course of his observationsat p. 274 that for the limited purpose specified in the sub-section a* (1061) GG N. L. R. 265.* (1050) 51 N. L. R. 520.
ALLES, J.— Siriscna v. The Queen
395
reference to the written record would be sufficient without the necessityof proving the written record. If it is sought to contradict a witness(which includes an accused person) from the written rcccrd the lawrequires that the passage should be put to the witness, produced andmarked in evidence—Vide Queen v. Wilbert1 and Queen v. Jni/nsena2.This is in conformity with the principle laid down in Jlnrumanisa3, thatsince the statement under Section 122 must be reduced to writing, noevidence can be given of it except the document itself. In regard to theproduction of the written record there are however two matters in regardto which one has to be cautious. The prosecutor who cross-examines an.accused must guard himself against eliciting any material which isconfessional in nature or so inextricably interwoven with the confessionalpart of the statement that the contradiction becomes inadmissible.Secondly, counsel must be careful in producing a contradiction that itdoes not contain material which is prohibited under the provisions ofSection 122 (3).
The above observations do not meet the problem raised by Mr. Chi ttybut I do not think, having regard to the wording of Section 122 (3),it is without a solution. The law permits the police officer to refresh hismemory from the written record. This may arise when the police officeris being examined in regard to his observations at the scene of the crime.It may also arise when counsel seeks to find out whether an}' part of theevidence of a witness is correct. When a Police officer refreshes hismemory from the notes of his investigation it is in order to assistthe Court by giving oral evidence in regard to relevant material. Forinstance if a witness has made a vital omission in his evidence, I see noobjection to the Police officer refreshing his memory from his record andgiving oral evidence of the omission. This is not evidence of a differentstatement made at a different time but the proper use of the provisions ofthe law in regard to the refreshing of memory. I am therefore of the viewthat the answer to Question 1043 was wrongly shut out by the Courtand that the Police officer should have been permitted to give theanswer in the negative. The law ensures that if a false answer is givenby a dishonest police officer he could be contradicted by the Court.
In spite of the inadmissible evidence contained in D1 A the question
still arises whether this evidence would have affected the decision of the
*
jury in regard to the culpability of the 4th appellant. The evidence ofKamalawathie is that the 4th appellant not only attacked the deceasedbut pushed her and her mother when they went to the assistance of thedeceased. Sedcra wathie’s evidence has not been contradicted as to thepart played by the 4th appellant. We are therefore inclined to take theview that the production ofDl A has not materially prejudiced the caseagainst the 4th appellant.
In view of the frequent occasions when the interpretation of Section122 (3) has come up for consideration in our Courts we are constrained todraw the attention of the legislature once again to the necessity of
1 (1062) 61 N. L. R. S3.» (1066) 68 N. L. R. 369 at 371.
s (1914) 15 N. L. R. 532.
390
ALLES, J—Sirisena v. The Queen –
redrafting Section 122 (3). In 1914 in Haramanisa (supra) Howard C.J.observed that the sub-section bristles with difficulties and is so difficultto interpret that “ in the view of the Court it is the duty of the legislatureto redraft the section so as to make its meaning clear Since thenthere has been a violent controversy whether the statement referred toin the opening sentence of the sub-section referred to the oral statementor the written record and that controversy appears to have been nowset at rest by the decision of the Privy Council in Ratnasamy but it isopen to lawyers to argue that the observations of the learned Law Lordthough entitled to the highest respect is only obiter. In Ratnasamy thePrivy Council w'as compelled to have recourse to a legal maxim to enableSection 27 of the Evidence Act and Section 122 (3) to function side by side.In India this controversy has been set at rest by introducing a specificsaving of Section 27 in the sub-section. Except for a minor amendmentin 1961 caused as a result of the introduction of Section 122A and 122Bin the Code, the section in its original form still adorns the statute bookand continues to be a fruitful source of discussion for lawyers and raisesdifficult questions of interpretation. The legislature, in spite of theobservations of a former Chief Justice and a-judicial pronouncementfrom the highest tribunal, appears to be serenely complacent in regard tothe controversy that has been raging in our courts with regard-to theinterpretation of this sub-scction. It is hoped that even at this latestage the observations of Chief Justice Howard pronounced twenty-fiveyears ago will receive serious consideration on the part of the legislatureto ensure a redrafting of the sub-section.
Finally there remains for consideration the submission of Mr. Chi ttythat there was a misdirection in regard to the directions of the trial Judgeon common intention and that the verdict against the 1st, 2nd and 3rdaccused was both illegal and illogical and not in conformity with thedirections of the trial Judge. The Crown' presented the case against allseven accused on the basis that they all shared a common murderousintention to cause the death of the deceased. Although this was thebasis of the Crown case it was open to the Jury, as judges of fact, to finda common intention to commit a lesser offence, and this they did whenthey found the 4th to the 7th appellants guilty of the offence of voluntarilycausing grievous hurt—the injury caused to the head being a grievousinjury. Logically therefore the 1st, 2nd and 3rd accused, who caused theserious injuries on the chest and the abdomen must have had at theleast a common intention to cause grievous hurt. The learned trialJudge directed the jury that the basis of liability was under Section 32of the Penal Code. In our view his directions on common intentionwere unexceptionable—he invited the jury to consider whether there wasevidence of pre-concert; whether the accused shared a common intentionamong themselves and he distinguished between a common intention anda similar intention. He also directed them to consider the case of eachaccused separately. His directions are in conformity with the rules laiddown by the Court of Criminal Appeal in Queen v. Asappu l. Mr. Chitty’s
1 {10 IS) 50 N. L. It. 321.
ALLfc'-S, J.—iStnsena v. The Queen
397
contention was that in the Jighfc of the directions of the Judge the firstthree accused could not have been found guilty of culpable homicide onground of knowledge. In his contention such a verdict can only befounded if the basis of liability was under Section 33 of the Penal Codeand for Section 33 to apply it must be established that each of theaccused had the particular knowledge that their act was likely to causethe death of the deceased. This evidence was absent in the presentcase. It was his further submission that under Section 32, which refers- to a ‘ common intention ’ the offence of culpable homicide on the groundof knowledge could not be established.
Since the decision of the Divisional Bench in Attorney-General r.Munasinghe1 it has been authoritatively laid down that Section 32 onlylays down a principle of liability and need not be mentioned in the chargecontaining the offence. As Tennckoon J. stated iu that case “each accusedis clearly given notice that the prosecution case against him is that hecommitted the crime jointly with the others and that the provisions ofSections 32, 33~or-35-, as the case may be, would be relied on by itto establish his liability to be convicted and punished as though hecommitted the offence by himself alone”. When directing a Jurytherefore it is necessary for the Court to determine whether the basis ofliability is under Section 32, 33 or 35, as the case may be. Too readilyin our Courts do judges direct the jury only on the basis of liabilitycontained in Section 32 ignoring the other sections relating to jointresponsibility. In this case the trial Judge has referred particularly toSection 32 and directed the jury that if they could not find a commonmurderous intention it was open to them to convict all the accused ofculpable homicide on the ground of knowledge. Mr. Chitty submits thatsince Section 32 refers to a common intention this direction is wrong.The common intention referred to in Section 32 must not be confusedwith-.the particular intention necessary to commit the offence of murder.
In Section 32 the common intention contemplates a meeting of the mindsand refers to the doing of separate acts bj1, several persons and if all suchacts are done in furtherance of a common intention each person is liablefor the result of them as if he had done them himself—Barendra KumarGhosh2. The Supreme Court of India in Afrahim Sheik v. The State ofWest Bengal3 which was relied on by learned Crown Counsel in dealingwith Section 34 (which corresponds to our Section 32) stated :
" A person does not do an act except with a certain intention; andthe common intention which is requisite for the application of S. 34is the common intention of perpetrating a particular act. F*eviousconcert which is insisted upon is the meeting of the minds reg rdingthe achievement of the criminal act. That circumstance is completelyfulfilled in a case like the present where a large number of personsattack an individual, chase him, throw him on the ground and beathim till he dies. Even if the offence does not come to the grade of
(1967) 70 N. L. R. 241.* A. I. R. 1935 P. C. 1.
* A. I. B. 1964 S.C- 1263 at 1268.
1
39S
ALLES, J.—Sirisena v. The Queen
murder, and is only culpable homicide not amounting to murder,there is no doubt whatsoever that the offence is shared by all of them,and Section 34 then makes the responsibility several if there was aknowledge possessed by each of them that death was caused as aresult of the beating. This circumstance is completer-fulfilled in the‘present case, and we arc, therefore, satisfied that the conviction ofthe appellants was proper, and see no reason to interfere.”
The facts in the Indian case are very similar to the present case.There were in both cases several persons who participated in the criminalact using different weapons and playing different parts. The SupremeCourt did not accept the submission of Counsel that S. 34 did not applyto the offence of culpable homicide on the ground of knowledge.Hidaytuilah J., who later became Chief Justice of India, in a veryilluminating judgment indicated the difference in the basis of liabilitybetween Sections 3-4, 35, 37 and 38 of the Penal Code which correspondto Sections 32, 33, 35 and 36 of our Code. There is therefore highauthority of the Supreme Court of India that under Section 32 of ourPenal Code joint offenders can be convicted of culpable homicide on. the ground of 'knowledge.
fn the present case however a difficulty arises as the jury have separatedthe culpability of the 1st, 2nd and 3rd accused on the one hand and thatof the 4th to the 7tli accused on the other. The learned trial Judge inmy view directed the jury corrcctty when he invited the jury to considerthe verdicts of murder, culpable homicide and grievous hurt on thebasis of joint responsibility. Having found the 4lh to the 7th appellantsguilty of grievous hurt on the basis of joint responsibility-' they shouldhave found the other three accused also guilty of the same offence unlessthere was clear evidence that any one ot them had gone beyond thecommon criminal intention to cause grievous hurt and caused injuriesfrom which the murderous intention or the knowledge requisite for theoffence of culpable homicide could be established, in regard to each oneof them. There is no evidence which of them caused the particularknife injuries. Therefore following the ratio decidendi in the Indiancase we would substitute convictions for grievous hurt under section 317of the Penal Code in regard to the 1st and 2nd appellants. Since wohave altered the verdicts in regard to these two appellants we wouldreduce their sentences to 5 years rigorous imprisonment each. There isa x'casonable possibility that the learned trial Judge himself would haveimposed on them, a lesser punishment had they been found guilty ofvoluntarily causing grievous hurt. Subject to this variation in theconvictions and sentences of the 1st and 2nd appellants the appeals arcdismissed.
Subject to u variation in i/ie convictionsand sentence of the 1st and 2ndappellants, appeals dismissed.