018-SLLR-SLLR-1996-V-2-WICKREMASURIYA-v.-DEDOLEENA-AND-OTHERS.pdf
WICKREMASURIYA
V.
DEDOLEENA AND OTHERS(SUBSTITUTED)
COURT OF APPEALF. N. D. JAYASURIYA, J.
C. A. 172/84
AT/RATNAPURA/GODAKAWELA21/14/18/C/5
MAY 15, JUNE 19 AND JULY 3, 1996.
Agrarian Services Act 58 of 1979 – S.5 and S.45 – Eviction – Prima Facieproof – Usufructuary Mortgage – Credibility of a Witness – Test of Probabilityand Improbability – Test of consistency and inconsistency inter se – Test ofInterest and Disinterestedness – Means of knowledge – Evaluation and As-sessment of Evidence –
The Original Applicant respondent’s position before the Agricultural Tribunalwas that he was put into occupation of the field by one F in 1964 and that hewas theTenant Cultivator of the said field, till this field was given on aUsufructuary Mortgage to one S by the daughter of F and that S in concertwith the respondent – appellant illegally and unlawfully evicted him from thefield in October 1973. The Assistant Commissioner came to the conclusionon the Evidence that was led before him, that there was eviction. On Appeal.
Held:
Per Jayasuriya J.
“A Judge, in applying the Test of Probability and Improbability relies heavilyon his knowledge of men and matters and the patterns of conduct observedby human beings both ingenious as well as those who are less talentedand fortunate.”
The Commissioner has very correctly arrived at an adverse finding inregard to witness Gunasekare’s testimonial trustworthiness. He is the masteron all matters of fact including assessments in relation to the Credibility ofWitnesses who had given evidence before him. The answers given byGunasekere disclose that he lacked means of knowledge in respect to theCultivation of the adjoining paddy field.
The Commissioner was quite right in applying the Test of Credibility, Test ofMeans of knowledge, Test of Probability and Improbability and the Test ofConsistency and Inconsistency Inter-se in rejecting his evidene as falseand partial.
The expression prima facie proof in S.45 has to be construed andinterpreted.
“Prima facie proof is Nothing more than sufficient proof which should beaccepted only if there is nothing established to the contrary.”
It is insufficient merely to make a suggestion of partiality or to merelymake a suggestion of the basis of a mere Nexus between the witness andthe person for whom he has testified in a legal proceeding.
There was a failure on the part of the respondent – appellant’s pleaders toestablish that Appuhamy was a partial witness by an Application of the Testof Interest and Disinterestedness of the witness.
As regards contradiction, after a considerable lapse of time as hasresulted in this application it is customary to come across contradictions inthe testimony of witnesses.
‘This is a characteristic feature of human testimony which is full of infirmities
and weaknesses especially when proceedings are led long after the eventsspoken to by witnesses. A Judge must expect such contradictions to exist inthe testimony. The issue is whether the contradictions go to the root of thecase or relates to the core of a party's case.’
Per Jayasuriya, J.
“If the contradicton is not of that character the Court ought to accept theevidence of witnesses whose Evidence is otherwise cogent having regardto the Test of Probability and Improbability and having regard to hisdemeanour and deportment manifested by witnesses. Trivial contradictionswhich do not touch the core of a party's case should not be given muchsignificance, specially when the probabilities factor echoes in favour of theversion narrated by an applicant.
Arriving at determinations with regard to Credibility and testimonialtrustworthiness of a witness is a question of fact and not a question of law.
An Appeal from the Order of the Assistant Commissioner of Agrarian Ser-vices Ratnapura.
Cases referred to:
Onasis v. Vergotis House – (House of Lords) 1968 2 Lloyds Report 403at 437. (Court of Appeal) 1968 2 Lloyds Report 297.
Velupillai v. Sidembaram – 31 NLR 97 at 99.
Undugodage Jinawansa Thero v. Piyaratne Thero – SC 46/81SC. M 5.4.1982
Herath v. Peter – 1989 2 SLR 325 at 326.
Dolawatte v. Gamage – SC 45/83 1989 2 SCM 327.
Smithwick v. National Coal Board – 1950 2 KB at 352.
Rex v. Jacobson and Levy – 1931 AD 466 at 478.
Iswari Prasad v. Mohamed Isa – 1963 A1R (SC) 1728 at 1734.
Barwada Boginbhai Hirjibhai v. State of Gujerat – 1983 A1R 753 at 755.
AG. v. Viswalingam – 47 NLR 286.
State of Uttar Pradesh v. Anthony – 1985 AIR 48 (SC).
Jagathsena v. Bandaranaike – 1984 2 SLR 39.
Samaraweera v. The Republic – 1990 (1) SLR 256 at 260.
N. R. M. Daluwatte P.C. with Manohara de Silva and Gamlni Silva forRespondent – Appellant.
Anil Silva with Sarath Liyanage for substituted – Applicant – Respondents.
Cur. adv. vult.
July 08, 1996.
N. D. JAYASURIYA, J.
At the argument of this appeal, the principal complaint of learnedPresident’s Counsel was that the Assistant Commissioner (Inquiries)has not indulged in a proper analysis and evaluation of the evidenceplaced before him and he has not specifically referred to certain matterswhich learned President’s Counsel described as “substantial contra-dictions” in the case of the Applicant. He also bitterly complained thatthe Assistant Commissioner has not indulged in a proper analysis andevaluation of the testimony of witnesses who have given evidence onbehalf of the respondent-appellant.
I will advert my attention to the second complaint in the first instance.The Assistant Commissioner has arrived at an adverse finding in regardto the testimonial trustworthiness and credibility of witness AgampodiSirisena Mendis Gunasekera who was called by the respondent. LearnedPresident’s Counsel has taken me over the evidence of this witness.This witness produced a document marked “I" at the inquiry with theobject of establishing that Haramanis, the Applicant, is a person whowas interested in obtaining perjured evidence and false evidence togain success at this inquiry. He produced document marked “I” andstated that in that document there is a promise by Haramanis to givewitness Gunasekera a sum of Rs. 20,000 in cash or to confer on himthe rights of an ande cultivator in respect of two acres of the paddyfield in question if witness Gunasekerea was prepared to change thedates on which he had cultivated this paddy field. Under cross-examination, witness Gunasekera admitted that this document wasprepared by his own sister-in-law’s husband and that Haramanis signedthis document at his home; whereas, the witness to the documentsigned in the absence of Haramanis at a different place. Thus, thisdocument marked “I” originated and emanated from witnessGunasekera’s relation. A judge, in applying the test of Probability andImprobability, relies heavily on his knowledge of men and matters andthe patterns of conduct observed by human beings both ingenious aswell as those who are less talented and fortunate. WitnessGunasekera’s position is that he did not accede to Haramanis'swrongful request and refused to fall in line with the suggestion ofHaramanis, but, nevertheless, Haramanis who was rebuffed left thisdocument in the possession of Gunasekera, though Gunasekera wasnot prepared to fall in line with his request. This version of the factsleading up to the leaving behind of the document, which in fact origi-nated from a source close to Gunasekera, in Gunasekera’s house isinherently and intrinsically improbable and, though the Assistant Com-missioner, has not referred to the test of Probability and Improbabilityin express terms, the germ of the concept relating to that test of cred-ibility has prevailed, has pre-occupied his mental capacities when heconcluded that witness Gunasekera, called on behalf of the respon-dent, is a dishonest and unreliable witness. Vide. Onasis v. VergotisHouse of Lords^y) Judgment and the Judgment of the Court of Appealdelivered by Lord Denning LJ. Applying the Test of Probability andImprobability, he has very correctly arrived at an adverse finding inregard to witness Gunasekera’s testimonial trustworthiness. The As-sistant Commissioner (Inquiries) is the Master on all matters of fact,including assessments in relation to the credibility of witnesses whohad given evidence before him. I am in complete agreement with thefindings of fact of the Assistant Commissioner of Agrarian Services.
This witness, Gunasekera, alleged that before Jamis came upon thispaddy field that he had cultivated the paddy field in question: that hehad occupied the highland and lived in a house standing on that highland;that he had carried on a business or trade in that house and that hehad cultivated the paddy field during several seasons. When he wasquestioned in relation to the paddy field, adjacent to the paddy field inquestion and asked whether a person by the name of Arnolis cultivatedthe adjoining paddy field, his meek reply was that he did not know.This answer really discloses that this witness lacked means ofknowledge in respect to the cultivation of the adjoining paddy field andif the Test of Means of Knowledge is employed to evaluate his evidence,the Assistant Commissioner has arrived at the correct finding rejectinghis credibility and holding adversely in regard to his testimonial trust-worthiness. This witness has stated that during the time he occupiedthis house and cultivated this paddy field, he was holding a governmentpost in the Irrigation Department at different points far removed fromthis paddy field. He has stated that he leaves home at 6 o’clock in themorning and returns to his home much later than 6 p.m. After indulgingin strenuous work for the Irrigation Department, it surprises this courthow he could have, despite his pre-occupation with governmentalactivity, carried on a business or trade in this house and how he couldhave attended to the cultivation of this paddy field personally duringthe time he held this government office. Under cross-examination hechanged his stance when he was confronted with that inconvenientgovernmental service and he stated that he employed hired labour andensured that the paddy field was cultivated. He has stated that henever had the intention of claiming rights as an ande cultivator or astenant in respect of the house which he occupied on the premises.Thus,the Assistant Commissioner was quite right in applying the Test ofCredibility, Test of Means of Knowledge, Test of Probability andImprobability and the Test of Consistency and Inconsistency inter sein rejecting his evidence as false and as partial evidence volunteeredon behalf of the respondent with the prospect of future benefits fromthe Respondent. Therefore, I hold that the criticism of learnedPresident’s Counsel that there has been no proper evaluation orimproper evaluation of the evidence of witness Gunasekera is a whollyunjustified criticism in relation to the evaluation and findings in regardto his credibility arrived at by the Assistant Commisioner.Thus thefirst arm of the contention of learned President's Counsel is untenableand unsustainable. Then, the learned President’s Counsel argued thatthough the Assistant Commissioner has concluded that the Applicant’stestimony is substantiated and corroborated by the evidencevolunteered by the other witnesses called on behalf of the Applicant,the Assistant Commissioner has not sufficiently given his mind tocertain contradictions and inconsistencies inter se in the evidence ledon behalf of the Applicant. A re-capitulation of the evidence isnecessary to appreciate this contention.
The Applicant’s position before theAgricultural Tribunal was that hewas put into occupation of the paddy field in question by MarcellineWickremasuriya Fernando, who was also referred to as the BaasUnnehe in 1964 and that he had cultivated the paddy field in questionas an ande cultivator performing all the necessary legal acts ofcultivation till this paddy field was given on a usufructuary mortgageto one Sirisena by Marcelline Wickremasuriya's daughter and thatSirisena, in concert with the respondent to this application, illegallyand unlawfully evicted him from this paddy field in October, 1973. Hehas stated that in October, 1973, he had ensured that the paddy fieldwas covered with sufficient water and that he had indulged in the actof ploughing the paddy field, but at night fall Sirisena had brought atractor and re-ploughed the paddy field which had already beenploughed by him. After the usufructuary mortgage in favour of Sirisenaended, he had stated that the respondent, Wickremasuriya, hashanded over the paddy field to another cultivator for purpose of culti-vation.
The Applicant was unable to produce any documentary evidence inthe form of Agricultural Lands Register exracts and receipts for pay-ment of acreage tax executed in his name. He has produced certainreceipts in respect of payment of acreage tax by Punchi Mahattayawho had subsequently taken a usufructuary mortgage and to whom hehad paid the land-owner's share. It is an undisputed fact in this casethat persons who cultivated this paddy field paid half share of theproduce to the landlord as the land-owner’s share of the crop. In viewof the basis on which this paddy field was cultivated and the basis onwhich the land-owner’s rent was apportioned, it is alleged that thecultivator’s name has not been entered in the Agricultural LandsRegister. It is also in evidence that the land-owner or the usufructuarymortgagee provided the seed paddy and paid the acreage tax in respectof the paddy field, as more than the share entitled to a land-owner waspaid by way of rent, by apportioning half the produce on the threshingfloor as the land-owner’s share. Section 45 of the Agrarian ServicesAct provides that the Paddy Lands Register extracts and certifiedcopies of that register are only prima facie evidence of the contentsthereof. The expression ‘prima facie proof’ which appears in section45 of the Agrarian Services Act has to be construed and interpreted.Just because Haramanis, the Applicant, was unable to produce anydocumentary evidence in the form of Paddy Lands Register andAgricultural Lands Register extracs in his favour, such failure wouldnot deter his claim to be considered as an ande cultivator before theAgricultural Tribunal or before the Court of Appeal. For, in the decisionin Velupillai v. SidembrarrP>, Justice Drieberg stressed that thisexpression means “nothing more than sufficient proof which should beaccepted only if there is nothing established to the contrary. But that itmust be what the law recognises as proof. That is to say, it must besomething which a prudent man in the circumstances of the particularcase ought to act upon”. These observations were cited with approvaland followed by Chief Justice Neville Samarakoon in the SupremeCourt judgment in Undugodage Jinawansa Thero v. YatawaraPiyaratne Thero(3) in refuting certain inferences arising from docu-
merits which came up for consideration before the Supreme Court.Chief Justice Samarakoon observed: “It is only a starting point andby no means an end to the matter. Its evidentiary value can be lost bycontrary evidence in rebuttal… If after contrary evidence has beenled the scales are evenly balanced or tilted in favour of the opposingevidence that which initially stood as prima facie evidence is rebuttedand is no longer of any value … Evidence in rebuttal may be eitheroral or documentary or both… The Register is not the only evidence”.Thus, the overwhelming and cogent oral evidence led in support of theposition put forward by the Applicant Haramanis, would weigh the scalesin his favour even in the absence of such registration extracts.
Justice S. P. Goonewardene, in Herath v. Peter,w expressed similarviews in regard to the interpretation and construction of the words ‘primafacie evidence’ in relation to Agricultural Lands Register entries andfollowed the views expressed in the unreported decision in Dolawattev. Gamage(5) pronounced by Justice Parinda Ranasighe.
In Smithwick v. National Coal Board,161 Lord Denning discussed theother sense in which the expession ‘prima facie proof’ is used. Heobserved:… “The guiding line between conjecture and inference isoften a very difficult one to draw; but it is just the same as the linebetween some evidence and no evidence. One often gets caseswhere the facts proved in evidence – the primary facts – are such thatthe tribunal of fact can legitimately draw from them an inferenceone way or the other or, equally legitimately, refuse to draw anyinference at all.” These dicta of Lord Denning bring out another sensein which the expression prima facie evidence is used. When evidenceis of such a nature, such evidence is most conveniently described asprima facie evidence in the first sense of the term. This expression isalso used in a second sense to refer to a situation where a party'sevidence in support of an issue is so weighty that no reasonable mancould help deciding the issue in his favour, in the absence of furtherevidence. It would be more rational and logical to describe evidenceof this degree of cogency as presumptive, but it is usually said to beprima facie evidence. Vide Article by Nigel Bridge in 12 Modem LawReview at 277. In Rex v. Jacobson and Levy,m Stratford J. A. remarkedthus: “Prima facie evidence in its usual sense is used to mean primafacie proof of an issue, the burden of proving which is upon the partygiving that evidence. In the absence of further evidence from theother side, prima facie proof becomes conclusive proof and the partygiving it discharges its onus". If the expression is used in Section 45of the Agrarian Services Act in the first sense, it means very little for,the Tribunal is entitled to refuse to draw any inference at all from theregistration entry. Even if it is used in the second sense in the aforesaidstatutory provision, the overwhelming and cogent oral evidence adducedby the applicant-respondent upon this application, has clearly rebuttedsuch prima facie evidence emanating from the production of theregistration entries as contemplated and explained by Chief JusticeSamarakoon.
Witness Vidanagama Ralalage Arnolis Appuhamy who happens to bea cultivator of the adjoining and contiguous paddy field and thereforeis a person who has special means of knowledge, has testified at theinquiry that the original owner, Marcelline Wickremasuriya FernandoBaas Unnehe had placed Haramanis, the Applicant in this case, in thecultivation of this paddy field (as a tenant cultivator in 1964 and thatHaramanis in that capacity continued to cultivate the paddy fieldperforming all the necessary legal acts of cultivation in respect of thispaddy field) from 1964 till October 1973, when he was wrongfully andillegally evicted by Sirisena who had taken a usufructuary mortgagefrom the daughter of the aforesaid Marcelline Wickremasuriya Fernandoand who is the Respondent-Appellant in this appeal. After such forc-ible dispossession on the part of Sirisena with the blessings and atthe behest and instance of the respondent-appellant, Sirisena hadbegun cultivation of the paddy field till the cessation of the usufructu-ary mortgage in his favour and thereafter, that the respondent-appel-lant had put other persons on to the paddy field and continued towrongfully and unlawfully cultivate the paddy field. Though it wasmeekly suggested that Arnolis Appuhamy is a friend and a partialwitness, in the course of cross-examinaton there was a complete fail-ure on the part of the respondent’s pleaders to establish that ArnolisAppuhamy was a partial witness by an application of theTest of Inter-est and Disinterestedness of the witness. As the Indian Courts haveconsistently pointed out, it is insufficient merely to make a suggestionof partiality or to merely make a suggestion on the basis of a merenexus between the witness and the person for whom he has testified ina legal proceeding – vide Iswari Prasad v. Mohamed lsa,lB) Their Lord-ships, in the aforesaid case, remarked: “it would be unsafe to discardevidence which appears otherwise to be reasonable and probable,merely because some suggestions were made to the witness withoutsuch suggestion being proved to be true." Their Lordships furtherobserved: “In considering whether evidence given by a witness shouldbe accepted or not, the court has to examine whether he is, in fact,an interested witness and to inquire whether the story deposed to byhim is probable and whether it has been shaken in cross-examina-tion. That is – whether there is a ring of truth surrounding his testi-mony”. The Inquiring Officer has approached this issue correctly andgiven consideration to the evidence of this particular witness havingthese principles in mind.
Don CharlesWeerakoon who functioned originally as the Secretary ofthe Kaltota Govi Karaka Sabha and thereafter functioned as theChairman of the Agricultural Cultivation Committee and in thosepositions had gained intimate knowledge and acquaintance with thecultivation of paddy field and the identity of the respective cultivatorsof the paddy field, has clearly stated that prior to 1964 the paddy fieldin question was cultivated by Kiri Appuhamy, Davith Singho andGunasekea and that after Gunasekera left, the paddy field in questionhad been cultivated as an ande cultivator by Haramanis, the Applicant,with the blessings and approval of the aforesaid MarcellineWickremasuriya Fernando Baas Unnehe, who was the owner of thepaddy field at that time. He has stated that from 1964 Haramanis hascontinuously cultivated the paddy field till October, 1973 and has handedover half share of the produce from the paddy field as the land-owner’sshare of the rent. On a complaint made by the said Haramanis, he hasstated that he had inquired into the complaint and after arriving at afinding that in 1973 October Sirisena had wrongfully and unlawfullyentered upon the paddy field and had evicted Haramanis; that he hadgiven directions to Haramanis to take over the paddy field and to ploughthe paddy field once again despite the ploughing effected by Sirisenaby means of a tractor. He has further stated that since the andecultivator Haramanis paid and handed over half share of the produceto the owner, the owner had provided the seed paddy and had paid theacreage tax in respect of this paddy field. Thus, according to thiswitness’s evidence on which the Assistant Commissioner has placedmuch reliance and trust, possibly applying the Test of Means of
Knowledge, witness Gunasekea had cultivated this paddy field be-fore 1964 and Haramanis had entered into cultivation of the paddyfield as an ande cultivator in 1964 under the previous owner.
Learned President’s Counsel referred to certain answers given bythis witness in regard to pointed questions put to him in cross-exami-nation. Before these particular questions were put to him, he hadbeen questioned in regard to the period when Jamis and PuchiMahattaya had received the land-owner's share as usufructuary mort-gagees over parts of this paddy field from Haramanis, witness hasstated that Haramanis paid the usufructuary mortgagees' half shareof the produce of the paddy field. This answer has been given in thecontext of the previous questions and answers volunteered by thiswitness. It will be highly improper and unreasonable to contend thatthe totality of the evidence given by this witness points to the conclu-sion that Haramanis has only paid the land-owner’s share to the usu-fructuary mortgagees. Any artificial interpretation and construction ofhis evidence to substantiate such a contention would be wholly un-tenable and unsustainable having regard to the totality of the evi-dence given by this witness. In the circumstances, I hold that there isno merit in the submission of learned President’s Counsel that thisparticular matter ought to have engaged the specific attention of theAssistant Commissioner in giving reasons for his order.
Medagedera Jamis, in his testimony has stated that he has knownthis paddy field from the year 1960; that its owners were originallyMarcelline Wickremasuriya Fernando Baas Unnehe and thereafter hisdaughter the respondent-appellant and that from 1964 Haramanis hadcontinuously cultivated the paddy field as its ande cultivator. He hasstated that in 1973, the respondent-appellant had executed ausufructuary mortgage in his favour, he had wrongfully and illegallyevicted the ande cutivator Haramanis. He has stated that after thecessation of the usufructuary mortgage that the paddy field is stillbeing unlawfully cultivated by nominees and agents of the respondent-appellant at her behest and instance.
On behalf of the respondent, witness E. L. Jamis has given evidenceand has stated that he has obtained a usufructuary mortgage of thepaddy field in 1966 and at the time he took the mortgage, witness
Gunasekera was residing in a house situated on the highland andthat witness Gunasekera was cultivating the paddy field. He has statedthat he took over the cultivation of the paddy field in 1966 whenGunasekera left the paddy field. He has also stated that at a certainpoint of time that both he and Punchi Mahattaya had taken a usufruc-tuary mortgage over two divided portions of this paddy field.
Wickremaratchige Punchi Mahattaya giving evidence on behalf of therespondent has stated that he had known this paddy field from 1954and that in 1964, Marcelline Wickremasuriya Fernando cultivated thepaddy field in question as owner-cultivator; that in 1960 Jamis cultivatedthe paddy field after obtaining the usufructuary mortgage and that,thereafter, Sirisena having obtained a usufructuary mortgage in hisfavour had cultivated the paddy field. He has stated, in 1974 Sirisenacultivated the paddy field for two years and thereafter a person by thename of Gunatillake jointly cultivated the paddy field and thatHaramanis, the Applicant, never cultivated the paddy field on any day.Learned President's Counsel conceded in the course of the argumentthat this evidence was incorrect and this position was false and thatHaramanis cultivated the paddy field as an ande cultivator during theperiod 1968-73 under the usufructuary mortgagees Jamis and PunchiMahattaya. Thus, the learned President’s Counsel had abandoned theuntenable position set up by the respondent at the inquiry and also thepersistent and tenacious contention advanced to that effect by learnedcounsel, Mr. Gunawardena, who appeared for the respondent at theinquiry. In his written submissions, which were filed before the AssistantCommissioner and in his oral submissions, Mr. Gunawardena, Attorney-at-law, has persistently argued that Haramanis was the respective agentand/or hired labourer employed by Jamis and Punchi Mahattaya. LearnedPresident’s Counsel, at the argument of this appeal, very rightlyabandoned that wholly untenable and unsustainable positon. Thus, theinconsistency in the cases presented before the Inquiring Officer andat the argument of this appeal is a startling and characteristic featureof the Respondent-Appellant’s case. I have already referred to theunsatisfactory and untrustworthy evidence given by witness AgampodiSirisena Mendis Gunasekera. Learned President’s Counsel has referredme to the evidence given by some of the witnesses called on behalf ofthe Applicant and certain contradictions marked in relation to theirevidence given at the abortive inquiry. In particular, he has referred meto contradiction marked V6. After a considerable lapse of time, ashas resulted on this application, it is customary to come across con-tradictions in the testimony of witnesses. This is a characteristic fea-ture of human testimony which is full of infirmities and weaknessesespecially when proceedings are held long after the events spokento by witnesses; a judge must expect such contradictions to exist inthe testimony. The issue is whether the contradiction or inconsistencygoes to the root of the case or relates to the core of a party's case. Ifthe contradiction is not of that character, the court ought to acceptthe evidence of witnesses whose evidence is otherwise cogent, hav-ing regard to the Test of Probability and Improbability and having re-gard to the demeanour and deportment manifested by witnesses.Trivial contradictions which do not touch the core of a party’s caseshould not be given much significance, specially when the ‘probabili-ties factor’ echoes in favour of the version narrated by an applicant.Justice Thaaker in his judgment in Barwada Boginbhai Hirjibhai v.the State of Gujerat,{9) remarks: “Discrepancies which do not go tothe root of the matter or to the core of a party’s case and shake thebasic version of the witness cannot be given too much importance.More so, when the all important probabilities factor echoes in favourof the version narrated by the witness.”
In the case of Attorney-General v. Viswulingam,<10> Justice Cannonstressed that the trial judge should direct his mind specifically to theissue what contradictions are material and what contradictions are notmaterial before he proceeds to discredit the testimony of a witness.Likewise, in State of Uttar Pradesh v. Anthony1-"' the important principleand rule of caution was laid down that a witness should not be disbelievedon account of trifling discrepancies and omissions. In a similar conext,Justice Collin Thome in Jagathsena v. Bandaranaike,{'2) in consideringthe issue of contradictions inter se of the testimony of two witnesses,emphasized that the trial judge should probe the issue whether thediscrepancy is due to dishonesty or defective memory or whether thewitness’s powers of observation were limited, This is particularly truewhere, after an abortive inquiry, the fresh inquiry is held after aprotracted delay and lapse of time. Justice Collin Thome was pleasedto remark on that occasion that in weighing the evidence, the trialjudge should specifically take into consideration the demeanour of thewitness in the box. The Inquiring Officer has had the benefit of suchdemeanour but certainly the Appeal Court is not provided with thatopportunity and, therefore, the Inquiring Officer’s findings in regard totestimonial trustworthiness and credibility is entitled to much weightand consideration. Vide also the observations made by JusticePriyantha Perera in Samaraweera v. The Republic,(13) where he hasadopted and followed the observations and principles laid down inleading Indian decisions on contradictions and discrepancies in theevidence.
I respectfully adopt and cite these helpful observations and remarks.Thepresent Assistant Commissioner (Inquiries) has had these principlesand observations at the back of his mind in regarding thesecontradictions adverted to by the learned President’s Counsel as trivialand not befitting detailed enumeration in his order. I hold that theAssistant Commissioner had indulged in a proper and adequate analysisand evaluation of the respective evidence placed before him. Thiscourt is unable to say that the Assistant Commissioner (Inquiries) hadarrived at an improper evaluation of the evidence placed before him.Arriving at determinations with regard to credibility and testimonialtrustworthiness of a witness is a question of fact and not a question oflaw. I hold that there is no misdirection in point of fact or in point oflaw, nor any defective procedure discernible from a perusal of both theoral and documentary evidence and the order pronounced by theAssistant Commissioner. In the circumstances, I hold that the Assis-tant Commissioner (Inquiries) has arrived at strong and tenable findingsof fact and in the result, this court has no jurisdiction or power tointerfere with the finding of fact of the Assistant Commissioner and noerror of law or issue of law arises for consideration upon this appeal. Iwholeheartedly agree with the findings of fact reached by the AssistantCommissoner. In the result, I proceed to dismiss the appeal of therespondent-appellant with costs fixed in a sum of Rs. 575/- payabe bythe respondent-appellant to the Substituted appellant-respondent.
Appeal dismissed.