REGINA v. V. P. M. MUNIDASA

051-NLR-NLR-V-58-REGINA-v.-V.-P.-M.-MUNIDASA.pdf

[lx the Court of Crlmixal Appeal]
Present: Gunasekara, J. (President), Pulle, J., and
Weerasooriya, J.
REGINA v. V. P. M. MUNIDASAAppeal 11, with Aptlicatiox 16, ok 1955•S'. G. 33—M. C. Colombo, 1,6IS
Evidence—Indictment containing two counts—Acquittal on one count—Ejject on verdicton the other count—Sentence—Penal Code, s. J7S D.
Acquittal of an accused person on one count owing to the rejection of thoevidence of particular witness for the prosecution is not necessarily a bar to hisboing convicted at tho same trial on a second count for a similar offenco onseparate and independent ovidenco.
Sentence reduced on the ground that it had been imposed on an erroneousbasis.
-/^-PPEAL against a conviction in a trial before the Supreme Court.
R. R. Crosselle-Thambiah. Q.C., 'with V. K. Palasunlhcram. for thoaccused appellant.
V. T. Thamolheram, Crown Counsel, for the Attorney-General.
Our. adv. vult.
April 21, 1955. Pulle, J.—
The appellant .was tried on an indictment which charged him on thefirst count with having had, in or about July or August, 1952, in hispossession five etched metal blocks for the purpose of being used orknowing or having reason to believe that they were intended to be used forforging or counterfeiting rupces-ten currency notes, an offence punishableunder section 47S D of the Penal Code. The second count charged himunder the same section with having had in his possession in or aboutMarch, 1953, five etched metal blocks for the purpose of being used forforging or counterfeiting rupces-ten currency notes. On the first countlie was acquitted. On the second count he was convicted and sentencedto fifteen years’ rigorous imprisonment. Of the grounds taken in thepetition only two were pressed at the argument, namely, that the verdictof the jury was unreasonable and that, in any event, the sentence wasexcessive.. •
On the first point learned counsel for the appellant submitted that oncethe evidence of the witness W. Gerrarcl Pcrera called by the prosecutionto prove the first charge is excluded, cither on the ground that it wasirrelevant to the second charge or that it had been rejected by the jury,
the rest of the evidence bearing on Die second count was not even suffi-cient for the case to go to the jury, and that, therefore, the verdict ofguilty was unreasonable.
' The evidence coiuiccted with the second charge is as follows :The
appellant who was an ayurvedic physician had a dispensary at XagalagamStreet-. He lived with a woman in one of a row of houses at Scdawatta.One Gabriel Perera and his wife were occupying a house a short distanceaway. On the night of the 12th February, 29.33, in the course of a quarrelwith a woman in a neighbouring house the appellant used obscenelanguage. When Gabriel Perera remonstrated, the appellant turnedround and abused both him and his wife in foul language. Ho made acomplaint to the Police on the following day and thereafter they ceasedto be on speaking terms. The case for the prosecution is that the appel-lant out of revenge attempted on the Gth March, 1953, to implicateGabriel Perera on the grave charge of being in possession of instrumentsfor counterfeiting currency notes by introducing into his house the fiveetched metal blocks which arc the subject matter of the second count- inthe indictment. On the evening of the 5tli March, 1953, the appellantand one Ausari called on the witness E. S. Candappa who was living in ahouse at Xagalagam Street and invited him for a drink at a restaurant inBayard's Broadway. When the}- were at the restaurant the appellanttold Candappa that Gabriel Perera had given him a parcel to be deliveredat his house, but that as he, the appellant, was angry with Gabriel Perera’swife lie wanted it to be delivered by Candappa the next morning. Heconsented. The appellant again called at Candappa’.s house on the GthMarch in the company of Ansari between 7.30 and S a.m. and took himto the dispensary. The appellant gave Its. 2 to a servant boy to bringsome vegetables from the market. After the boy returned with thevegetables the appellant went with Ansari to the upper floor of the dis-pensary, brought down a box wrapped in paper and tied with a pieceof twine and handed it to Candappa along with the parcel of vegetables tobe put into appellant’s car. Candappa having placed the parcels in thecar got into the rear seat and Ansari sat by the appellant who drove thecar to Scdawatta and near the turn off leading to the house of GabrielPerera the car was halted and t he appellant instructed Candappa to deliverthe parcels to the wife of Gabriel Perera whose house lie indicated was thesixth in the row. lie took the parcels and delivered them to Mrs. Pereraand the party returned to Xagalagam Street. Mrs. Perera felt uneasyabout the parcels and having taken advice from a Police constable who wasliving in the same row she awaited the return of her lnisband. When hocame she informed him of what had happened. He denied that he hadsent any parcels and promptly informed the Wellampitiya Police who tookaction immediately. They proceeded to the house of Gabriel Perera andfound the parcel of vegetables and a cardboard box containing five etchedmetal blocks which undoubtedly could have been used for counterfeitingRs. 10 currency notes.
It was contended on behalf of flic appellant that the evidence of Can-dappa was consistent with the five blocks having been made not forthe purpose of counterfeiting notes but only for implicating Gabriel-.Perera in a false charge of possessing instruments for counterfeiting. The
question (lien arises whether the prosecution has discharged the burdenresting on it to prove affirmatively that the appellant possessed the blocks-“ for the purpose of being used or knowing or having reason to believethat they were intended to be used for forging or counterfeiting- To
decide this question one has to examine certain other incidents whichoccurred towards the end of February and on the 5th and Gtli IS larchand also the evidence of the Government Analyst and the GovernmentPrinter.
On the 26th February the appellant communicated to Police constableGunapala that he had received information that Gabriel Perera was inpossession of some blocks for printing currency notes and promised toget more information in a few days. On the 5th March the appellantagain met constable Gunapala and informed him that Perera had broughtthe blocks to his house and was preparing to dispose of them. Theconstable took the appellant to a C. I. D. Inspector who wanted furtherinformation. Early on the 6th March the appellant again met constableGunapala and stated definitely that Perera had made arrangements toremove the blocks and wanted a search to be made before 1 p.m. that day.A police party was deputed to accompany the appellant presumably tosurprise Perera in the act of removing the blocks but the plan miscarried.By the time the police party were lying in wait for Perera, the etchedblocks had already passed into the custody of the Wellampitiya Police.It is reasonable, therefore, to infer from constable Gunapala’s evidencethat at least a week prior to the 6th March the etched blocks were underthe appellant’s control, if not actually in his possession..•
The evidence of the Government Analyst was that the five blocksrepresented different aspects of a ten-rupee currency note all of whichwould be required to produce a complete note. He added,
“ I found traces of blue, green and purple colours on the blocksand they suggested the possibility of ten-rupee notes having beenprinted by them ”.
The Government Printer’s evidence was also to the same effect.
It remains now to consider the evidence of W. Gerrard Perera on whomthe prosecution depended largely' to prove the first charge. Accordingto this wimess—who was employed at the Caxton Printing Works as astereocaster—he was approached by' the appellant about the month ofMay', 1952, to have certain deficiencies in five blocks used for counter-feiting Rs. 10 currency' notes rectified. He informed him that he wasunable to undertake the work nor was lie in a position to name a processblock maker who could make good the deficiencies. He did not seeany of the metal blocks but was shown by' the appellant five metal blockproofs of a Its. 10 currency' note. The appellant also told him that“ he had those blocks and that the proofs had been taken out from themIn the absence of any explanation by' the appellant we are of the opinionthat the jury had sufficient evidence upon which they' could properlyfind a verdict against the appellant on the second count. Indeed, t-hopresence of traces of blue, green anti purple colours on the blocks spoken,to by the Analyst and the Government Printer could by' itself have ledthem reasonably to the inference that the blocks had been made for
purposes of counterfeiting Its. 10 currency notes or that the appellantknew or had reason to believe that they were intended to be used forsuch counterfeiting.
It has been submitted to us that if the jury had acted on the evidenceof Gerrard Pcrera as well in reaching a verdic t on the second count theyacted unreasonably in view of their finding of acquittal on the first count.We are unable to speculate as to the reasons which led the jury in findingthe verdict on the first count. That count fixed the date of the offenceas “ in or about July or August, 1952 ” whereas Gerrard Pcrera who madea statement to the Police on the 13th January, 1953, said that he wasapproached by the appellant to have the blocks rectified “ about eightmonths ” previously, thereby fixing the date of the offence in April or May,1952. It is quite possible that the jury acquitted the appellant on theground that the first offence was not committed “ in or about July orAugust 1952 ” in the sense that possession of etched blocks in thosemonths had not been brought home to the appellant. We arc unableto accept the argument that the acquittal on the first count necessarilyinvolved the rejection by them of the whole of Gerrard Perera’s evidenceor that the jury were precluded thereby from acting on such parts ofhis evidence as were relevant to the proof'of the mental elements necessaryto constitute the offence as charged in the second count.
It is urged that the acts which formed the subject matter of the twocounts were not committed in the course of the same transaction and that,therefore, the evidence of the incidents spoken to by Gerrard Perera wereirrelevant to the second count. In our opinion the relevancy of GerrardPerera’s evidence to issues arising on the second count was not conditionedsolely on proof that the offence alleged in both counts were committed inthe course of the same transaction. To prove any of the ingredients of theoffence charged in the second count the prosecution was entitled to relyon any fact relevant to such proof, even though such fact would ha%'ebeen equally relevant to establish any of the ingredients of the offencecharged in the first count.
Lastly, after judgment had been reserved, a submission was made to usin writing based on the decision of the Privy Council in Sambasivam v.Public Prosecutor, Federation of Malay a 1 that the verdict on the firstcount so operated as res judicata 1 hat “ the Crown cannot at this stage seekto impute a guilty mind to the prisoner in respect of any matter referredto in count 1 of the indictment In the case cited there was a trial ontwo counts on the second of which the prisoner was acquitted. Owing to adisagreement as to whether the first count was proved there was a secondtrial on that count when the prosecution proved a confessional statement apart of which amounted to an admission of the charge on whichthe prisoner was acquitted at the first trial. The Pri*5r Council said in thecourse of its judgment at p. 479 :
“ The effect of a verdict of acquittal pronounced by a competentcourt on a lawful charge and after a lawful trial is not completely statedby saying that the person acquitted cannot be tried again for the sameoffence. To that it must be added that the verdict is binding andconclusive in all subsequent proceedings between the parties to the1 (1950) A. C. 458 at 479.
adjudication. The maxim “Res judicata pro veritate accipitur” is no lessapplicable to criminal than to civil proceedings. .Here, the appellanthaving beenacquitted at the first trial on the charge of having ammuni-tion in his possession, the prosecution was bound to accept the correct-ness of that verdict and was precluded from taking any step to challengeit at the second trial. And the appellant was no less entitled to relyon his acquittal in so far as it might be relevant in his defence. Thatit was not conclusive of his innocence on the firearm charge is plain, butit undoubtedly reduced in some degree the weight of the case againsthim, for at the first trial the facts proved in support of one charge wereclearly relevant to the other having regard to the circumstances in whichthe ammunition and revolver were found and the fact that they fittedeach other. ”.
The answer to this submission is that no question of res judicata can-tarise because the appellant was tried at one trial on both counts and theCrown has not sought, in supporting the verdict on the second count, to•ch'S^l^nge the correctness of the verdict on the first count. All thatthe Crown has done is to maintain that there was evidence relevant to thesecond count on which the jury would have been entitled to find a verdictngainst. the appellant and that, even if one assumed that the entirety ofGerrard Perera’s evidence was rejected, there was still the evidence ofthe Anatyst, the Government Printer and constable Gunapala on which thejury would have been justified in convicting the appellant.
The maximum sentence of imprisonment provided by section 478 Dis twenty j'ears. In sentencing the appellant to fifteen years the learned•Commissioner said,
“ This is a very serious offence. I know of two such cases, one manyyears ago in which the accused was given the maximum sentence oftwenty years for having an instrument like this for counterfeitingcurrency notes. Some years later there was another case and there alsothe accused was given twenty .years imprisonment ”.
Section 47S D was added to the Penal Code by the Penal Code (Amend -merit) Ordinance, No. 19 of 1941 replacing similar provisions in the PaperCurrency Ordinance (Cap. 291). We have not been referred to any casedecided since 1941 in which the maximum sentence had been awardedunder section 478 D. The Commissioner had apparently in mind twocas.es. decided prior to 1941. His impression does not appear to be correctthat in those cases the accused persons were convicted of being in pos-session of instruments which could have been used for counterfeitingcurrency notes. Section IS of the Paper Currency Ordinance provided amaximum penalty of twenty years imprisonment for counterfeiting notes,while section 20 which penalised the possession of an instrument forcounterfeiting provided for a maximum of only five years’ imprisonment.
The assessment of sentence by. a trial Judge is essentially a matter ofdiscretion. We are, however, satisfied in this case that that discretion hasbeen exercised on an erroneous basis and accordingly reduce the sentenceto ten years’, rigorous imprisonment. Subject to this variation theapplication for leave to appeal is refused and the appeal dismissed.
Sentence reduced.