THE QUEEN v. H. H. ALADIN and another

002-NLR-NLR-V-61-THE-QUEEN-v.-H.-H.-ALADIN-and-another.pdf


BASHAYAKE, C.J.—The Queen v. Aladin
7
1959
pir the Cotnai oe rhtTMTN-AT. Appeal]
Present: Basnayake, C.J. (President), Pulle, J., and H. N. G. Fernando, J.THE QUEEN v. H. H. ALADIN and anotherAppeals 125 and 126, with Applications 161 and 162
S.G. 1—M. C. BaZapitiya, 16,686
Criminal procedure—Tender of entire record of a case in evidence—Irregularity—CivilProcedure Code, s. 154—Inspection by fury of place where offence was committed—Presence of Judge necessary—Criminal Procedure Code, s. 238—Previousstatement made by a witness in writing or reduced to uniting—Procedure forcontradicting the witness by such written statement—Evidence Ordinance,$. 143 (2).
It is highly irregular to tender the entire record of another case in evidencewithout reference to specific portions of it which ought to be distinctly specifiedand marked.
Under section 238 of the Criminal Procedure Code a view of the scene of thecrime can take place only when the Judge thinks that it is desirable and makesan order to that effect. Moreover, the inspection must be had in the presenceof the Judge.
Where it is sought to contradict a witness by proving a portion of his state-ment made to a police officer and reduced by the latter to writing, section 145 (1)of the Evidence Ordinance requires that the witness’s attention must, first becalled to those parts of the statement which are to be used for the purpose ofcontradicting him.
The Evidence Ordinance does not permit proof of the contents of a documentwithout the production of the document itself. The King v. Jinadasa (1950)51 N. L. R. 529 distinguished.
i^LPPEALS, with applications, against two convictions in a trial beforeriie Supreme Court.
Colvin B. de Silva, with M. L. de Silva, for Accused-Appellants.
G. AUes, Deputy Solicitor-General, with P. Colin Thome, Crown•Counsel, for the Attorney-General.
Cur. adv. vult.
Eebruary 9, 1959. Baskayake, C.J.—
The appellants Hewa Hakuru Aladin and Hettiyahandi Perris Singhowere arraigned on an indictment containing two counts, one charging themboth with the attempted murder of Yakupiti Hendrick Appu and the otherwith the attempted murder of Yakupiti John Singho. They were
8
BASHAYAKE, C.J.—The Queen v. Aladin
acquitted of tlie charges of attempted murder ; but were found guiltyof attempted culpable homicide not amounting to murder. They havenow appealed against their convictions.
Of the twelve grounds stated in the notice of appeal learned counselfor the appellants urged the following —
(а)that the verdict of the jury is unreasonable,
(б)that the admission in evidence of the record in C. R. Balapitiya
Case Ho. 25,851 was improper.
that the taking of evidence on the visit of the jury to the scene
in the absence of the Judge was illegal,
that it was sought to contradict the defence witness Thomme
Hakuru Martin by proving a portion of his statement made to-Police Sergeant Munsoor and reduced to writing by him withoutthe witness’s attention being called to those parts of it whichwere to be used for the purpose of contradicting him as re-quired by section 145 (1) of the Evidence Ordinance.
It will be convenient at this stage to state briefly the material factsand then proceed to examine the above grounds one by one. The injuredpersons live in a portion of a hamlet in extent one and half acres andcontaining six houses. It has a river on two sides, on the third a marshyfield and on the fourth Thanahengoda Estate, a cinnamon plantation,several acres in extent. The land on which the injured persons livedadjoins Thanahengoda Estate. A fence separated the estate from theirland. A stile in the fence gave access to a footpath over the estateleading to Galwehera Village Committee road.
The prosecution case is that Aron Singho a son of Hendrick Appu oneof the injured persons was on the day in question (27th August 1956)waylaid and severely assaulted near the estate bungalow as he wasreturning home from Ids place of work in Araniel Silva’s field. Aronmanaged to get home though he was badly injured. He appears to havebeen pursued by the two appellants and several others. The appellantswere armed with guns and the others with katties and clubs. They cameup to the stile but did not proceed further. When Hendrick askedthem why they had assaulted Aron Singho the 2nd appellant shot himand the 1st appellant shot his son John Singho.
The defence version is that Hendrick, John Singho, Aron Singho,.Raththa, and several others were cutting cinnamon by stealth on Thana-hengoda Estate when Thomme Hakuru Martin the watcher who was onhis rounds with his gun at about 5 in the afternoon suddenly came acrossthem when Aron Singho seized his gun and stabbed him on his back..Martin struggled with him, freed his gun and struck Aron Singho with it.Hendrick, John Singho. and Raththa, rushed to his aid when Martin-shot them pointing his gun at their feet and they fled.
That evening when Police Sergeant Munsoor came to investigate th&crime at about seven he found Martin in the verandah of the house of aneighbour N. S. I>. S. Wickramasinghe. He had two stab injurieson his back and was still bleeding and appeared to be in pain. He made a
BASTsTA YAK HI, C.J.—The Queen a, Aladin
9
statement to Munsoor which, he reduced to writing. That very nightMunsnnr was shown the place where the cinnamon was cut (about 50sticks had been freshly cut), the pellet marks on a cinnamon bush, and theplace where the alleged attaok took place. Though search was madeneither the Sergeant nor the other officers found any pellets or waddingnear about the spot at which Martin shot Hendrick, John Singho andothers. Sergeant Munsoor went to the bungalow' and examined thegun. It had a spent cartridge in the breach and bore signs of having beenrecently used. It was 10 p.m. when Munsoor reached the houses of theinjured men. They had by then been removed to hospital and he couldnot record their statements nor was he able to find any wadding or pelletsnear or about their houses that night. It had rained and the detection ofsuch things as wadding and pellets and any marks of struggle on theground was rendered difficult. On his second visit to Hendrick’s compoundthe next day he found two pieces of wadding—one thick and the otherthin—and two pellets. On his third visit to the land on the second dayafter the offence the witness Meliashamy handed him 14 pellets whichshe said she had found at different places in the garden. The evidence ofthe injured persons that they were shot while they were in their compoundhy the appellants who fired from the stile is not supported by any unequi-vocal circumstances. The injuries on both Hendrick and John Singhoindicate that the person or persons who shot them had aimed the gun low.The former had 17 punctured wounds on his left leg and thigh and 18punctured wounds on his right leg and thigh while the latter had onepunctured wound on his spine, three on his left buttock, two on his leftleg and two on his right leg.
Learned counsel drew our attention to the infirmities in the case forthe prosecution. It is not necessary to enumerate them for the purposeof deciding the grounds of appeal urged on behalf of the appellants.Though the defence version was promptly given to the Police even before■the prosecution version was recorded it is not without its shortcomings.Martin’s account of what; happened does not fully explain the injurieson Aron, Hendrick and John. The jury appear to have believed the evi-dence of Hendrick, John Singho, Aron Singho and Meliashamy, and re-jected the evidence of Martin as they were entitled to do. Having regardto the evidence we cannot say that the verdict is one which no reasonabletribunal could have found, for, that is what is meant by the ground thatthe verdict is unreasonable. The first ground of appeal must thereforefail.
The second ground of appeal urged by counsel is that the prosecutionimproperly tendered in evidence the record in Case No. 25,851 of theCourt of Requests of Balapitiya. That record contains the plaint andanswer. The plaintiff is one Hewessagamage Babynona of Thanahengoda.The defendants Daniel de S. Edirisinghe of Wellaboda, Balapitiya, Liya-nagamage Brampy, Liyanagamage Thomis Singho, and LiyanagamageDavith Singho, all of Thanahengoda. Both the plaintiff and the defen-dants are strangers to these proceedings and are not even formal witnesses.The prosecution not only produced the whole record which it should nothave done ; but it also elicited from the record-keeper who produced itirrelevant evidence, though without objection by the defence. Learned
10
BASNAYAKE, CJ. J.—The Queen v. Aladin
Crown Counsel elicited the fact that the action was instituted on 20thFebruary 1956 and that the plaintiff claimed a share of ThanahengodaMahawatte and that on 4th July the action was withdrawn for thepurpose of filing other proceedings in the X>istrict Court. The learnedJudge elicited the fact that it was alleged in the plaint that the fourdefendants had obstructed the footpath claimed by the plaintiff byputting up a fence. The contents of paragraph 3 of the answer wereelicited both by the learned Judge and counsel for the defence. LearnedCrown Counsel did not explain how the averments in the plaint and answerand the journal entries in the Court of Requests case between strangerswere relevant to these proceedings. The obstruction of the footpathwas not a fact in issue nor are the statements in the pleadings which arehearsay relevant under any provision of the Evidence Ordinance. Irre-levancy apart, it is highly irregular to tender records in evidencewithout reference to specific portions of them which ought to be distinctlyspecified and marked. The Civil Procedure Code (s. 154) enjoins that incivil proceedings it shall not he competent to the Court to admit in evi-dence the entire body of proceedings and papers of another action indis-criminately. It requires that each constituent document should beseparately and formally tendered at the time when its contents or purportare first immediately spoken to by a witness. If what was done herewould have been obnoxious if done in civil proceedings how much moreso should it be in criminal proceedings ?
The third ground is that evidence was taken at the scene in the absenceof the Judge. Section 238 of the Criminal Procedure Code providesthat whenever the Judge thinks that the jury should view the place inwhich the offence charged is alleged to have been committed or any otherplace in which any other transaction material to the trial is alleged to-have occurred the Judge shall make an order to that effect. Whenthe Judge makes such an order the law requires that the jury shall beconducted in a body under the care of an officer of the Court to such placewhich shall be shown- to them by a person appointed by the Judge. Theofficer under whose care the jury are conducted is forbidden by thestatute to suffer any other person to speak to or hold any communicationwith any member of the jury except with the permission of the. Judge.The statute also requires that the jury shall when the view is finished beimmediately conducted back into Court unless the Court otherwise directs-
It is clear from the section that a view of the scene of the crime can takeplace only whenever the Judge thinks that it is desirable and makes anorder to that effect. In the instant case the extract from the transcriptof the proceedings which is reproduced below does not show that thatrequirement was satisfied. The transcript at the end of John Singho’s-evidence reads—
“ Crown Counsel: At this stage, before the other witnesses are-called, I make an application, if the jury wishes to, that a visit to thescene may be very useful in this case in view of the fact that a sketchdrawn and produced does not sufficiently show the points and thegeography of the land.
“ Court to Mr. Jforeman : Do you wish to inspect the scene %
BASNAYAKE, C.J.—The Queen v. Aladin
II
" Mr. Foreman : Actually I was feeling like asking that some sort &fobjects be given to this man so that he could place it in such a waythat we could find out the place where the well was and so on.
“ Defence Counsel: If the members of the jury wish to see the sceneI shall have no objection.
“ Crown Counsel: I make the application that it is at this stagethat we should visit the scene.
“ Court: We shall leave tomorrow morning at 8.30 a.m. ”
The next day’s record reads as follows :—
“ 8'30 a.m. Jury assembles in Court.
Court directs that the jury do proceed to the scene of offence incharge of the Clerk of Assize, and that Police Sergeant 3210 Munsoor dopoint out the scene and the various spots shown in the sketch as having beenpointed out to him by the witnesses. The Clerk of Assize is directednot to permit any person other than Sergeant Munsoor to have anycommunication with the jury. After inspection the Clerk of Assizeis directed to conduct the jury back to Court.
“8.45 a.m. Grown Counsel, Counsel for the Defence, the SinhaleseMudaliyar, the Stenographers, the accused in the custody of the Fiscal,,and the members of the jury in charge of the Clerk of Assize, all leavethe Court premises for the scene of offence. The Jurors, Counsel andaccused arrive at the scene of offence at 10.45 a.m. The Clerk ofAssize directs Sergeant Munsoor to point out various spots marked inthe sketch. The Sergeant then points out to the jury the followingspots :— ’’
It would appear that the Sergeant first pointed out the places referredto in Martin’s evidence, and next pointed out the places marked A, B, C,D, F, G, H, J, K, M, N, P, Q, and some other places such as a newhouse and a well spoken to by the witnesses in their evidence. Therecord farther reads—
“ At Crown Counsel’s request the Sergeant points out the point ‘ R’without mentioning what * K ’ is. At the request of Mr.Dahanayake,Defence Counsel, the Sergeant points out Podinona’s house which, theSergeant states is the same as Aron’s house marked * P ’ on r thesketch. At Mr. Dahanayake’s request the Jurors take a view of thestile from the well. ”
The inspection of the scene was over by 11.25 a.m. and then the jurorsand counsel were taken to the Ambalangoda Resthouse and given somelight refreshments. Thereafter the jurors were conducted back to theCourt by the Clerk of Assize. The transcript reads—
“ Having arrived at the Court-house at 1.45 p.m. the Clerk of Assizeadministers the oath of separation to them and they are discharged till9 a.m. tomorrow.”
BASNAYAEjE, C.J.—The Queen v. Aladin
IS!
That the learned Judge did not take part in the view is not disputed. %His direction to Sergeant Munsoor amounts to an order that he shouldgive evidence in hisabsence. The Clerk of Assize appears to have adminis-tered the oath of separation to the jurors in the absence of the Judge.
If this was done it was improper.
A view is part of the evidence in a case and what Sergeant Munsoordid and said in the instant case is evidence {Karamat v. Reginam)1.In whatever form, in a trial in the Supreme Court evidence can be ad*mitted only before the Judge and jury. It is improper to communicateto the jury any facts relating to the charge except in the presence of theJudge. In the instant case the view was designed to help the jury tounderstand a sketch that puzzled them and proved on their visit to thescene to he wrong in several material particulars. At the view SergeantMunsoor appears to have not only pointed out the various spots depictedon the sketch and given particulars regarding those spots hut also made anumber of statements to the jury which he later admitted in his evidenceto be incorrect. He also admitted that the most important of thosespots, viz. where the injured men Hendrick and John Singho were saidto have been when they were shot were never pointed out to him by themand that certain particulars of the sketch were not to scale and that thehouses were incorrectly shown. It would also appear from the pro-ceedings quoted above and the following record that the rbw lacked thatorderliness which is associated with a view in which the Judge takes part.
“ Crown Counsel: By the time we came to the spot we found theJury already examining it, and in my submission that is in admissible.
“ Court: (to Crown Counsel) Then why did you refer to it in theevidence T
ei Crovm Counsel : I referred to it for this purpose, at the scene the; jury were pointed out that spot and it was described as given in thekey. That description in my submission was inadmissible at thatstage. So to get it dear on the record I put the question to the Clerkof Assize when he was in the box in order to find out exactly whathappened at the spot when the jury were there.
«“ Court: That was a point pointed out to the jury by a witness
for the prosecution.
Croton Counsel: That is so, but is strictly against Your Lordship’sinstructions. ”
We must express our disapproval of the course adopted by counsel forthe prosecution and the defence in seeking to place evidence before thejury in the absence of the Judge. The former asked Sergeant Munsoorto point out spot “ B. ” without mentioning what R ” is and thelatterasked the jury to take a look at the well from the stile. The irregularitiesthat occurred at the view are grave and sufficient tc- vitiate the trial.It was. in srmilax circumstances that-in the case of Tameshvcar v. Reginam2
*; 1 (1956) 1 All E.R.415 at 417, {1956) A.G. 266.
8 {1957) 2 All E.R.6S3, {1957) A.C. 476.
BA5NATAKB, C.J.—The Queen v. Aladin
13
"the Privy Council quashed a conviction in a case from British Guiana.The principle on which that decision was founded is equally applicablein Ceylon. This is how Lord Denning states it—
“ Section 45 enables the Court or a Judge to determine the termsand conditions on which a view may be held ; but this power must beexercised in accordance with the fundamental principles of a fair trial;and one of these principles is that every piece of evidence given by awitness must be given in the presence of the tribunal which tries thecase ; and the tribunal is not the Jury alone, but the Judge and JuryIf witnesses give demonstrations or answer questions at aview, that is undoubtedly part of the trial, and must he had beforethe Judge and Jury. ”
We wish to guard ourselves against what we have said above beingunderstood to mean that at a view of the scene witnesses cannot he askedto demonstrate or explain something which needs explanation or take upcertain positions which they say they occupied at the time the crime wascommitted. Witnesses can he asked to give demonstrations or explana-tions but such demonstration and explanation must he given in thepresence of the Judge and jury. How essential it is that the Judgeshould he present at a view is emphasised not only in Tameshwar’s casebut also in the case of Karamat (supra) where Lord Goddard in dismissingthe appeal to the Privy Council said—
“ Here everything was done in the presence of the Judge, whothroughout was in control of the proceedings. It was eminentlydesirable that he should he present, and it is possible that, had he notbeen, a different result would have followed.”
At a view directions to witnesses and other questions if any to themshould come from Judge and not from the jury or counsel; hut it is opento counsel or the jury to suggest them to the Judge so that he may decidewhether a particular direction should he given or question asked.
It is unnecessary to add that a Judge who does not take part in anInspection especially in a case of this nature is at a disadvantage when itcomes to charging the jury. They have a mind’s picture of the scene whichhe has not and he is confined to the hare sketch which does not convey•such a vivid picture as a view. He is thereby precluded from making thecontribution he might have been able to make to the case had he takenpart in the view. The disadvantage is greater where as in this case thesketch happens to be unreliable in many important respects.
The last of the above grounds of appeal is that portions of the statementmade by the defence witness Martin were elicited by Crown Counsel inrebuttal from Police Sergeant Munsoor without complying with the condi-tion precedent prescribed in section 145 (1) of the Evidence Ordinance..Martin admitted in examination-in-chief that he made a statement to aPolice Sergeant and the learned Judge put to him the following questions•at the end of his re-examination :—
" 2057. Court : Q. What time did Sergeant Munsoor record your
statement %
A. At about 6 p.m. It was just getting dark.
14
BAS2STAYAKE, C.J.—The Queen v. Aladin
Q. I take it you told hint What exactly happened ?A. Yes.
Q. Did you tell him that when Axon,s tabbed you.
from behind you struck him with the gun ?
A. Yes.
Q. You are quite sure %
A. Yes. ”
After Martin’s evidence was over the Crown Counsel stated : ” I mo ve-to call P. S. Munsoor in rebuttal on the evidence led by the defence. ”
Grown Counsel then proceeded to read to Sergeant Munsoor specific-portions of Martin’s statement from a copy of the written record of itand Sergeant Munsoor who also appears to have had a copy answered“ Yes ” to the questions asked. Below are the questions put to Munsoorand the answers given by him.
“ 2072. Q. You told us that on the 27th August 1956 when youwere going towards this Thenahengoda Estate yourecorded the statement of T. H. Martin at 7.45 p.m.!A. Yes.
Court: Q. In the estate Bungalow of N. S. D. S. Wickra-
masinghe 1A. Yes.
Examination canid.
Q. In the course of that statement did he tell you that at.
about 3.30 or 4 p.m. that evening when he was goinground the cinnamon land of Daniel Edirisinghe he noticedHendrick Appu and John Singho cutting cinnamon 1A. Yes.
Q.. That he went up to them without being seen by them and
that he' approached them and questioned them and whilehe was questioning them, Aron Singho came from behindand stabbed him twice on his hack ?
A. Yes.
Q. And as he was stabbed he fired a shot with his gun that he
had in his hand 1A. Yes.
Q. And that he did not know whether that shot struck anyone
and that when he fired the shot all of them started to-run ?
A. Yes.
'■* 2078. Q. He also mentioned the fact that one Rathu Appu was collect'ing cinnamon sticks ?
A. Yes.
Q. Then he raised cries ?
A. Yes.
Q. And for his cries Aladin, William and some others came there
and he said ‘ brought me here , or there 5 1
A. Brought me there.
Court: Q. To the estate bungalow ?
A- Yes.
2081.
BASNATAKE, C.J.—The Queen v. Aladin
15
Examination contd.
Q. He did not mention anywhere in that statement of his that-
he had used the gun to assault Aron Singho 1
A. No.
Q. Nor has he stated that he ever assaulted Aron Singho that
day %
A. No.
Q, He has not mentioned the fact that John Singho and Hen-
drick Appu assaulted him at any time ?
A. No. ”
After the cross-examination and re-examination of the witness thelearned Judge asked the following questions :—
iC 2102. Q. After recording the statement did you read it over andexplain it to Martin ?
A. Yes.
Q. Did he admit it to be correct ?
A. Yes.
Q. Did he sign the statement 1A. Yes. ”
By adopting this unusual procedure learned Grown Counsel presumablyintended to show that some of Martin’s statements to the Sergeant contra-dicted his evidence. But this he was not entitled to do without firstdrawing the attention of the witness to those parts of his statement whiohwere to be used for the purpose of contradicting him (S. 145 (1) EvidenceOrdinance).
The defence justifiably complains against the strange course adoptedby learned counsel for the prosecution. The complaint is that, apart fromthe contravention of section 145 (1), the failure of the prosecution to drawthe attention of Martin to those portions of his statement which were to beused for the purpose of contradicting him deprived the only witness forthe defence of the opportunity of explaining or denying the statementsimputed to him and that the absence of any explanation from him mighthave had the effect of showing him in an unfavourable light and influencedthe jury to reject his evidence. Crown Counsel was either aware of theprovisions of section 145 (1) or he was not. In either case his action isinexcusable.
We cannot allow to pass without comment the strange way in whichCrown Counsel sought to prove portions of Martin’s statement. It isclear from the transcript that Munsoor was not giving oral evidence ofthose statements for unless he had a prodigious memory, which theevidence shows he had not, he could not have remembered over two yearsafter the event every word of those portions of Martin’s statement whichwere put in evidence. It is also clear that Munsoor was not refreshingMs memory by reference to the written statement. Crown Counsel wasin effeet proving the contents of a document without producing thedocument itself. The Evidence Ordinance does not permit it. If*it wasdone on the assumption that the decision of this Court in King v.Jinadasa1 authorises it, we wish to state that that assumption is wrong.
i~t t T>
J U4.• VMV •
16
Arumugam v. Somasunderam
The last ground of appeal must also be upheld. In the result all exceptthe first ground of appeal urged by learned counsel must be upheld andthe convictions of the appellants quashed.
The only question that remains for consideration is whether a retrialshould be ordered or not. We are of opinion that after such a long lapseof time—it is now 2 years and 6 months from the date of the commissionof the offence—and in a case of this nature where there are several infir-mities in the evidence for the prosecution, no useful purpose will be servedby a retrial. We therefore quash the conviction and direct that an orderof acquittal be entered in respect of both appellants.
Appellants acquitted.
■1”■ ■ii
Present: Basnayake, C.J., and Pulle, J.
V. ARUMUGAM et al., Appellants, and S. SOMASUNDERAM et. 'al.
Respondents
S. C. 351—D. C. Jaffna, 6,056jM.
Thesa/oalamai—Action for pre-emption—Decree entered in plaintiff’s favour—Subse-quent execution of conveyance by District Court Secretary—Date of -nesting oftitle in pre-emptor—Prescription. Ordinance, s. 6-—Civil Procedure Code,ss. 200, 333.
Where, in an action for pre-emption, the Secretary of the District Courtis ordered by Court to execute a conveyance in favour of the pre-emptoron account of the -wilful failure of the defendants to do so, title vests in thepre-emptor from the date of the Secretary’s conveyance and not from the dateof the decree.
In an action for pre-emption, the plaintiff obtained decree and DistrictCourt Secretary’s conveyance in his favour but subsequently suffered damagesby reason of an obligation to pay off a mortgage created by the 1st defendant(co-owner) in respect of the property in question during the pendency of theaction and after the 1st defendant had. obtained a re-transfer from the 2nddefendant (the vendee)—
Held, that the plaintiff was entitled to bring a second action to recover thedamages suffered by him and that the period of prescription in respect ofhis claim for damages commenced from the date of the conveyance executedby the Secretary of the District Court-.
-O-PPEAL from a judgment of the District Court, Jaffna.
V. Perera, Q.C., with A. Nagendra, for Plaintiffs-Appellants.
<S. Nadesan. Q.G., with C. Chellappah, for 1st Defendant-Respondent.
■ *
N. E. Weerasooria, Q.C., with H. W. Tambiah and C. Renganccthan,lor 2nd Defendant-Respondent.
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