073-NLR-NLR-V-45-DAVID-Appellant-and-IDROOS-Respondent.pdf
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WIJBYBWAKDENB J.—David and Idroog.
1944Present: Wijeyewardene J.
DAVID, Appellant, and IDROOS, Respondent.
295—M. G. Colombo, 22,096.
Criminal Procedure—Power given to a Magistrate to examine witness—Evidencecalled afterclose ofdefence—CriminalProcedure Code, s. 429.
The powergiven by section 429ofthe Criminal ProcedureCode toa
Magistrate tosummonand examineawitness at any stage of the trial
should not be exercised in ordertocall evidence after thedefenceis
closed, if such evidence puts the accused at an unfair disadvantage.
A PPEAL from a conviction by the Magistrate of Colombo.
L. A. Rajapakse, K.G. (with him S. W. Jayasuriya'), for the accused,,appellant.
P. S. W. Abeyewardene, C.G., for Crown, respondent.
Gtir. adv. vult.
June 19, 1944. Wijbiewardene J.—
The accused was charged with the theft of 1|- measures of rice' and9 biscuits from the possession of Sapper Appuhamy of the Ceylon Engi-neers, in the alternative, with the dishonest retention of those articles;which were alleged to be stolen property. The Magistrate convictedhim on the charge of theft and sentenced him to a term of imprisonment.
Three witnesses—Sathasivam, Somasena and Sekhar—gave evidence-for the prosecution. According to that evidence, Sathasivam sentSomasena on the day in question to fetch the accused, as he-
WIJEYEWAJtDENE J.—David and Idroos.
301
was leaving the militarycampwith abundle ofsoiled linen
which was given to.himto bewashed.When theaccused was
brought back to the camp, the rice and biscuits were found in thebundle he was carrying, and these were identified by Sekhar as theproperty of the Ceylon Engineers. Their evidence proved, further,that Appuhamy was a cook at the camp and ration orderly and that hehad access to the store where rice and biscuits were kept. Both Satha-sivam and Somasena denied under cross-examination knowledge of anystatement made by the accused, at the time of his arrest, that Appuhamygave him,the alleged stolen articles. Sekhar, however, admitted that theaccused made such a statement.
The defence called Police Constable Basanayagam who said that theaccused stated that thearticles weregiven tohim by Appuhamy. If the
accused was not calledas awitnessto provehis defence,this evidence,
of course, would not have been admissible for that purpose. But, onthe other hand, the evidence of Basanayagam proved beyonddoubt that the prosecution was made aware of the defence of the accusedshortly after he was arrested.
After giving the evidence as stated above, Basanayagam proceededto say:—“ Appuhamy’s statement was recorded. ” At that stageMr. L. D. S. Gunasekera, Proctor for the accused, objected to the witnessgiving the ‘statement of Appuhamy. The Magistrate overruled theobjection and made the following order: —
“ I allow it as in view of the defence adopted by the accused. I proposeto call Appuhamy into the witness box at the conclusionof the defence to satisfy my own mind on this point. ”
Basanayagam stated then that Appuhamy denied having given anyrice or biscuits to the accused- Thereafter, Mr. Gunasekera said that hewas not going to call any further evidence, and the Magistrate postponedthe trial and issued summons on Appuhamy. When Appuhamy appearedon a subsequent date, Mr. Gunasekera objected to his evidence beingrecorded. The Magistrate overruled that objection also and recordedthe evidence of Appuhamy who said that he did not give the rice or thebiscuits to the accused.
I hold that the procedure adopted by the Magistrate was irregularand was not rendered necessary by any emergency as contemplated inL/iddle’s case1 and that it caused injustice to the accused.
In the course of his judgment the Magistrate said in support of hisrulings on the objections raised by the defence : —
“ Mr. Gunasekera promptly objected to Appuhamy’s statementto the constable going in as Appuhamy had not been called by theprosecution or defence. Although the failure of the defence to callAppuhamy as a witness to support the statement of the accusedcould have been interpreted by me under section 114 (J) of the EvidenceOrdinance as an indication that if called the witness would not supportthe accused, I felt that in the interests of justice, I should hear Appu-hamy’s evidence myself and even if he denied having given the rice
1 21 Criminal Appeal Reports 3.
302
WIJ331' KWAUDENE J.—David and Idroos.
and biscuits to the accused thus giving the lie to the accused’s allega-tion to the Police, and satisfy myself whether Appuhamy was speakingthe truth, after he had been tested by his evidence being subjectedto cross-examination. ”
This passage has to be examined carefully. The inference referred toby the Magistrate would have been innocuous and irrelevant unlesshe meant that he would have proceeded from that inference to anotherinference, namely, that the defence was untrue. Such a process ofreasoning would show a misapprehension as to the scope and nature of thepresumption permissible under section 114 of the Evidence Ordinance.That section enacts that “ the Court may presume the existence of anyfact which it thinks likely to have happened, regard being had to the commoncourse of natural events, human conduct, …. in their relationto the facts of the particular case (The words have been underlinedby me.) These presumptions are not presumptions of law but presump-tions of fact and the Magistrate could have drawn an inference of guiltonly if he thought it was likely, having due regard to human conduct,that Appuhamy would have been ready to admit that he gave the articlesin question to the accused if, in fact, he gave them to the accused. Butcould it be reasonably believed that Sapper Appuhamy, cook of theCeylon Engineers, was likely to be so great a lover of truth that heundeterred by the probability of a criminal charge or fear of dismissalwould admit that he gave the rice and biscuits to the accused in viola-tion of the orders received by him not to give to outsiders any articlesissued to him by the military authorities? The Magistrate could nothave reasonably expected Appuhamy to state that he gave the articlesto the accused. The Magistrate knew Appuhamy’s denial to the Policebefore he examined Appuhamy. Moreover, it was highly improbablethat the accused would have refrained from calling Appuhamy if he wasgoing to support the defence. In fact, the Magistrate appears to haveexpected that Appuhamy would be “ giving the lie to the accused’sallegation to the Police ”. What was the Magistrate going to do then ?If he accepted Appuhamy’s evidence, then the summoning of Appuhamywould necessarily have prejudiced the accused. If he rejected Appuhamy’sevidence, the case would have had to be decided entirely on the evidenceof the Jhree prosecution witnesses. Was he then going to utilize thefact of his calling Appuhamy as a witness to do away with the argumentthat there was a gap in the prosecution story ? It should be rememberedin this connection that the defence was made known to the Magistratebefore the close of the case for the prosecution.
The Magistrate then proceeds to state in his judgment: —
“ This witness (Appuhamy) has not been called by me either to closegaps in the prosecution evidence or to dispel doubts which wouldoperate in favour of the accused, but purely to enable me to satisfymyself fully whether the defence put* forward by the accused is true orfalse ,and thereby come to a just decision of this case as contemplated bythe latter half of section 429 of the Criminal Procedure Code. As I havestated earlier in this judgment, I wanted to test the veracity of this wit-ness Sapper Appuhamy after hearing his evidence and listening to him. ”
WIJEYEWARDENE J.—David and Idroos.
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While I accept without the slightest hesitation the statement of theMagistrate as to the reasons which, he believes, prompted him to callAppuhamy as a witness, I have no doubt whatever that the examination ofAppuhamy by the Magistrate’ has, in fact, served to fill the gaps in thecase for the prosecution and to cause serious prejudice to the accused.
On the charge of theft it was desirable that the prosecution shouldhave called Appuhamy from whose possession .the goods were allegedto have been stolen, as none of the other witnesses were able to giveevidence on that point, and it was on this charge that the accused wasultimately convicted. On the alternative charge of retention of stolenproperty, it was known to the prosecution that the defence was that theaccused received the articles from Appuhamy, and in these circumstancesit was incumbent on the prosecution to meet that defence withoutwaiting to lead evidence in rebuttal (see Kandiah v. Podisingho1). Theprosecution failed to call Appuhamy and the Magistrate has uninten-tionally but effectively filled the gaps in the case for the prosecution bysummoning and examining Appuhamy.
Again if the Magistrate had no reasonable doubt as to the guilt of theaccused before Rasanayagam was permitted to say what Appuhamytold him, then there was no purpose in the Magistrate summoningAppuhamy. The accused would have listed Appuhamy as a witness,if he thought that Appuhamy could be relied upon to help him. Couldit be reasonably thought that the accused was keeping out of the witnessbox a material witness who was ready and willing to help him? On theother hand, if the Magistrate had a reasonable doubt at that stage as tothe guilt of the accused, the examination of Appuhamy by the Magistratemust have operated to dispel those doubts, as, in fact, the accused wasconvicted after Appuhamy gave evidence. Thus it will be seen that theexamination of Appuhamy was distinctly unfair and unjust to the accused.
The Magistrate had to decide whether the charges were proved andhe had to reach that decision on the evidence placed before him. Noapplication was made to him by the defence that Appuhamy should becalled. In those circumstances the Magistrate was not called upon topronounce his opinion as to the “ veracity ” of Sapper Appuhamy whohad not given evidence before him when the prosecution closed its case.
The powers given by section 429 of the Criminal Procedure Code andreferred to by the Magistrate are very wide, but, for that very reason,it is necessary that Magistrates should .exercise a great deal of eautionin having recourse to it. That section, no doubt, empowers a Magistrateto summon and examine a witness at any stage of the trial, if it appearsto him “ essential to the just decision of the case ”, but it should beremembered that “ if the evidence puts the defence at an unfair dis-advantage, it is not essential to a just decision and must be rejected.(See Aiyadurai's case2).
The Magistrate should not have allowed Rasanayagam to give hearsayevidence as to what Appuhamy stated to him and should not have calledAppuhamy as a witness after the prosecution and the defence closedtheir cases. By permitting Rasanayagam to give that hearsay evidence,
1 (J921) 23 N. L. R. 337.3 {1942) 43 N. L. R. 289.
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HEABNE J.—Wadugodapiti-ya o. Ismail.
the Magistrate created the difficult situation which rendered it necessaryfor him to consider whether he could summon Appuhamy in the exerciseof his powers under section 429 of the Criminal Procedure Code.
The conviction of the accused cannot stand, and the only questionthat remains is whether the proceedings should be quashed or the .accusedacquitted. I think it right to take into consideration the fact ^hat theMagistrate admitted the evidence in question in spite of the objectionsof .the accused’s Proctor who submitted to him some of the latest-decisions of .the Court of Criminal Appeal, Ceylon. The Magistratethought he could distinguish those eases from the case he was consideringand thus justified to himself the irregular procedure adopted by him.I do not think .that in all the circumstances of this case it would be fairto ask the accused to face the expense and anxiety of a fresh trial.
X allow the appeal and acquit the accused.
Set aside.