WIJERATNE BANDA v. STATE

015-SLLR-SLLR-1998-V-3-WIJERATNE-BANDA-v.-STATE.pdf


86
Sri Lanka Law Reports
[1998] 3 Sri LR.
WIJERATNE BANDA
v.STATE
COURT OF APPEALJAYASURIYA. J.,
KULATILAKE. J„
C.A. NO. 48/97
H.C. BADULLA NO. 276/93
SEPTEMBER 17TH, 1998.
Prevention of Terrorism (Temporary Provisions) Act 48 of 1979 – S. 22 CO S.2 (1) e, S. 2 (1) (g) Pena! Code S. 32,.300 – Public Security (Amendment) Act28 of 1988 – Emergency Regulations – Robbery of Government Property -Attempted Murder – possession of a gun – S. 57 S. 165 Evidence OrdinanceS. 2 Interpretation Ordinance – lex non logit ad impossibilia.
87
CA Wijeratne Banda v. State (Kulatilaka, J.)
The Accused appellant was indicted on three counts viz. Robbery of. GovernmentProperty under S. 2 (2) (ii) read with 2 (1) e of the P. T. A., attempted murderunder S. 300 Penal Code punishable under S. 24 (1) b of the ‘(EmergencyRegulations 1 of 1989 read with Public Security Act, and in possession of a gunpunishable under S. 2 (2) (ii) read with S. 2 (1) (g) of the P.T. A. After trialthe accused was found guilty of all charges.
It was contended that (i) the learned High Court Judge has failed to considerwhether the facts would warrant a charge under the P. T. A. and the PublicSecurity Act read with Emergency reugulations (ii) there is no proof to establishthat the Emergency Regulations and the P. T. A. were in operation at that relevanttime/area (iii) the learned High Court Judge had put leading questions to a witnesswhich is not warranted in law.
Held:
When the accused appellant was served with the indictment objection tothe legality of the charges had been raised by him. The learned High CourtJudge who heard the submissions in regard to this impugnment had beforehim the indictment, the list of productions and the list of documents, andamong the list of productions was a reference to a confession made toa Superintendent of Police by the accused appellant which was admissiblein terms of S. 16 of the P. T. A. Having examined the charges and theannexures which manifested the nature of the material that the Prosecutionis proceeding to rely upon, the learned High Court Judge had over-ruledthe objection. The contents of the attached confession clearly establishedthat the prosecution fell within the ambit of the preamble to the P. T. A.as amended by the Public Security Act and read with the EmergencyRegulations 1 of 1989.
The relevant point of time at which such objection to a charge shouldbe considered is that of accusation and not the eventual result.
The learned High Court Judge had taken judicial Notice of the operationof the Emergency Regulations and the P. T. A. Where a charge is laiddown under a statutory rule, regulation or by-law which is required by lawto be published in the Government gazette the prosecution is not boundto produce the gazette.
The trial Judge in order to discover or to obtain proper proof of relevantfacts may ask any question at any time of any witness or of any personabout any fact relevant or irrelevant.
Per Kulatilake. J,
1. The significant fact is that the Police had not recovered the gun, complaintthat the prosecution failed to produce the Government Analyst Report isgroundless because the law does not expect one to do what is impossible*.
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Sri Lanka Law Reports
[1998] 3 Sri LR.
APPEAL from the Judgment of the High Court of BadullaCases referred to:
Weerakutty v. Pullenayagam – 47 NLR 14.
Choughani v. King Emperor – .1938 107 Law Journal PC 35.
Sivasampu v. Juan Appu – 38 NLR 369 (DB).
Arumugam v. Range Forest Officer – 1986 2 SLR 398.
Gunananda Thero v. Atukorale and others – 29 CLW 77.
Edirisinghe v. Cassim – 46 NLR 334.
Cassiere v. Edirisinghe – 30 CLW 94.
Jayakody v. Paul Silva & another – 25 CLW 45.
Ranjan Mendis with Ananda Mohottala, J. Wickremasinghe and Manjula Wellalagefor accused-appellant.
Suhada Gamlath, S.S.C. for Attorney-General.
Cur. adv. vult.
October 29. 1998.
KULATILAKE, J.
The accused-appellant was indicted before the High Court of Badullaon three counts. Firstly that he had committed robbery of governmentproperty to wit: a sum of Rs. 29,000/- being monthly salaries ofLunuwatte Maha Vidyalaya teaching staff an offence punishable underSection 2 (2) (11) read with Section 2 (1) (e) of the Prevention ofTerrorism (Temporary Provisions) Act No. 48 of 1979 and Section 32of the Penal Code.
Secondly, that he had committed attempted murder of KanganaMudiyanselage Sudu Banda an offence punishable under Section 300of Penal Code thereby committing an offence punishable underRegulation 24 (1) (b) of the Emergency (Miscellaneous Provisions andPowers) Regulation No. 1 of 1989 published in the gazette extraor-dinary of the Democratic Socialist Republic of Sri Lanka No. 563/17of June 20th 1988 read with Public Security (amendment) Act No.28 of 1988.
Thirdly, that he had been in possession of gun an offencepunishable under Section 2 (2) (11) read with Section 2 (1) (g) ofthe Prevention of Terrorism (Temporary Provisions) Act No. 48 of1979.
CAWijeratne Banda v. State (Kulatilaka, J.) 89
After trial the learned High Court Judge found the accused-appellantguilty of all three charges and sentenced him to a term of 10 yearsrigorous imprisonment on each count and ordered the sentences torun concurrently. This appeal arises from these convictions andsentences.
The prosecution case may be summarised to the following effect;
On 20.10.92 the Principal of Lunuwatte Maha Vidyalaya W. P.Padmasiri and three teachers of the same school namely Piyasena,Madduma Bandara and Sudu Banda had gone to the Peoples Bankat Ambagasdowa to collect the monthly salaries of the teachers ofthe school. The total amount collected was Rs. 1,60,583.50. Havingcollected the money from the Bank they put the money into threeparcels as a safety measure and thereafter set out on their journeyback to the school on foot. They took a short cut and as the roadwas narrow, it appears from the evidence that they went in singlefile with the injured Sudu Banda leading the way. As they were goingthrough a tea estate an unknown person had passed them. Thena second person carrying a weapon like a pistol had emerged fromthe bushes and demanded money. Without giving into the demandsPadmasiri and Piyasena had struggled with this individual. Piyasenamanaged to extract his pistol but the money they had carried in theirperson was extracted and thrown to a side. There was another personstanding on a higher elevation behind the individual who had engagedin the scuffle. This person carried a gun.
According to witness Madduma Bandara who had witnessed theincident he had seen this person shooting at Sudu Banda, as SuduBanda was proceeding towards the school. Thereafter within a shorttime the police had arrived at the scene. There were villagers, schoolchildren and Grama Arakshaka Niladari who came to the assistanceof the police to apprehend the culprits. About four hours after theincident the Grama Arakshaka Niladari who were carrying on a searchoperation were able to locate a person hiding behind a bush. Thepolice officers intervened and they were successful in apprehendingthis person. Soon after the arrest witnesses Madduma Bandara andPiyasena had identified the arrested man as the "third person" whohad carried a gun and had shot at Sudu Banda.
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Sri Lanka Law Reports
[1998] 3 Sri LR.
At the trial Madduma Bandara, Piyasena, Sudu Banda, Sub In-spector Wickremaratne had given evidene for the prosecution. Theaccused-appellant had made a dock statement. His defence was atotal denial.
The learned counsel for the accused-appellant contended that thelearned High Court Judge has failed to consider whether the factsin the case would warrant a charge under the provisions of thePrevention of Terroism (Temporary Provisions) Act No. 48 of 1979and the Public Security Act read with the Emergency Regulations.
The proceedings of 26.1.93 indicate that the accused-appellant wasserved with the indictment on that day. According to the proceedingsof 27.5.94 objection to the legality of the charges had been raisedby the counsel who appeared for the accused-appellant in the HighCourt. This objection and impugnment of the indictment had beenraised not before the trial Judge who tried the case but before hispredecessor. The impugnment and objection had been raised at astage prior to pleading to the indictment. At that point of time thelearned High Court Judge who heard the submissions in regard tothe impugnment had before him the indictment, which contained thecharges against the accused-appellant, the list of productions and thelist of documents. Among the list of productions as item No. 1 wasa reference to a confession made to a Superintendent of Police bythe accused-appellant which was admissible in terms of Section 16of the Prevention of Terrorism (Temporary Provisions) Act No. 48 of1979. A copy of this confesion was attached to the indictment to beperused by the Judge. Having examined and considered the chargesin the indictment and the annexures which manifested the nature ofthe material that the prosecution is proceeding to rely upon at thetrial the learned High Court Judge over-ruled the objection raised bythe defence. The contents of the attached confession clearly estab-lished that this prosecution fell within the ambit of the preamble tothe Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979as amended and the Public Security Act no. 28 of 1988 as amendedread with the Emergency Regulations No. 1 of 1989. (Vide theproceedings and order dated 27.5.94.) At the trial it was the unfettereddiscretion of the prosecuting State Counsel to decide upon thewitnesses, and the material that he was intending to call or producebefore Court.
CA
Wijeratne Banda v. State (Kulatilaka, J.)
91
The point of time at which such an objection and impugment shouldbe decided and determined was considered by Canekeratne, J inWeerakutty v. Pullenayagarri'K He referred to the judgment inChoughhani v. King Emperot<z) where it was held that the relevantpoint of time at which such objection to a charge should be consideredis that of accusation and not the eventual result. In the circumstances,we hold that the contention of the learned counsel for the accused-appellant that the relevant point of time is the eventual result andthat the confession had to be marked in evidence and produced atthe trial is wholly untenable in law.
The second point urged by the learned counsel was that the learnedtrial Judge has failed to consider the fact that there was no proofbefore Court to establish that the Emergency Regulations and thePrevention of Terrorism (Temporary Provisions) Act under which theaccused-appellant was charged with, was in operation at the relevanttime in the relevant area. The learned Senior State Counsel counteredthe point urged by the learned counsel for the accused-appellant bysubmitting that the learned High Court Judge had taken judicial noticeof this fact. In this regard it is pertinent to refer to Section 57 of theEvidence Ordinance and Section 2 of the Interpretation Ordinance.Section 57 (1) of the Evidence Ordinance states:
"That the Court shall take judicial notice of all laws, or ruleshaving the force of law, or heretofore in force or hereafter tobe in force in any part of Sri Lanka".
In Section 2 sub-section (kk) of the Interpretation Ordinance theterm “written law" is interpreted in the following terms:
"written law" shall mean and include all Ordinances, Laws andActs of the Legislature of Ceylon or Sri Lanka and all orders,proclamations rules, by-laws, regulations, warrants and processof every kind made or issued by and body or person havingauthority under any statutory or other enactment to make orissue the same in and for Ceylon or Sri Lanka or any partthereof, the Minutes on Pensions, and the Ceylon (ParliamentaryElections) Order-in-Council 1946".
Section 56 of the Evidence Ordinance.
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Sri Lanka Law Reports
[1998] 3 Sri LR.
sets out:
"That no fact of which the Court will take judicial notice needbe proved".
On a perusal of the judgment we find that in fact the learned trialJudge had taken judicial notice of the operation of the EmergencyRegulations and the Prevention of Terrorism (Temporary Provisions)Act. He has referred to Sivasampu v. Juan Appu P1 where it is laiddown that where a charge is laid under a statutory rule, regulationor by-law which is required by law to be published in the governmentgazette, the prosecution is not bound to produce the gazette in whichthe rule or regulation or by-law appears in proof thereof in order toestablish the charge. There would be sufficient compliance with therequirement of law if in the complaint or report to Court there is areference to the gazette in which the rule is set forth. The productionof the gazette containing the Emergency Regulation in question isUNNESSARY – Vide – Arumugam v. Range, Forest Officer<4) GunanandaThero v. Atukorale & others<5) Edirisinghe v. Cassirrfe) Cassiere v.EdirisingheP• Jayakody v. Paul Silva & Another*81; In the circumstanceswe reject the submissions of learned counsel for the accused-appellant as it is bereft of any legal foundation.
Further, the learned counsel submitted that the learned trial Judgehad put certain leading questions to witness Madduma Bandara whichis not warranted in law. The question and answer he referred to isas follows:
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In this regard it is necessary to stress the powers given to a trialJudge to put questions to a witness in terms of section 165 of theEvidence Ordinance. The trial Judge in order to discover or to obtainproper proof of relevant facts may ask any question at any time ofany witness or of any person about any fact relevant or irrelevant.Thus it is manifestly clear that the’ learned trial Judge had questionedwitness Madduma Bandara exercising the legal powers conferred onhim under the Statute. Besides there is sufficient evidence elicitedaliunde on this point. Hence the learned counsel's submission is bereftof any substances and merit.
CAWijeratne Banda v. State (Kulatilaka, J.)93
The learned counsel for the accused-appellant queried in the courseof his argument as to why the Government Analyst’s report relatingto the gun in question was not produced at the trial. According toMadudma Bandara, Piyasena and Sudu Banda at the time they sawthe accused-appellant he was standing at a higher elevation. Hecarried a gun. According to Madduma Bandara he had seen theaccused-appellant shooting at Sudu Banda and the gun shot alightingon Sudu Banda's body. Sudu Banda himself had testified that he sawthe accused-appellant armed with a gun aiming the gun at him. Eventhough at the time of arrest of the accused-appellant by the police(four hours later) he had a pistol with him the evidence in the caserevealed that at the time of the incident the accused-appellant wasarmed with a gun. The significant fact to be emphasised is that thepolice had not recovered the gun. Thus the complaint that theprosecution has failed to produce the Government Analyst's report isgroundless because the law doew not expect one to do what isimpossible as expressed in the phrase lex non cogit ad impossibilia.
Finallly, the learned counsel contended that in order to prove thatthe accused-appellant was in possession of a gun as alleged in count3 of the indictment the report of the Government Analyst should havebeen produced at the trial. The trial Judge who had observed thedemeanour and the deportment of the prosecution witnesses MaddumaBandara, Piyasena and Sudu Banda who were teachers was satisfiedwith the overwhelming nature of their evidence and has arrived ata favourable finding in regard to their testimonial trustworthiness. Theirevidence had established the fact that the accused-appellant did carrya gun at the time of the incident. This evidence would be sufficientto establish count 3 of the indictment in the attendant circumstancesof this prosecution.
On a perusal and consideration of the learned High Court Judge'sjudgment and the totality of the evidence led in the case we are ofthe considered view that he had come to a right decision in findingthe accused-appellant guilty of all the charges. In the result, the appealis dismissed.
JAYASURIYA, J. – I agree.
Appeal dismissed.