023-SLLR-SLLR-2007-V-1-RENUKA-SUBASINGHE-v.-ATTORNEY-GENERAL.pdf
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RENUKA SUBASINGHEv
ATTORNEY-GENERAL
COURT OF APPEALRANJITH SILVA, J.
SISIRA DE ABREW, J.
CA 139/2001HC COLOMBO 9143/98MARCH 27, 2007MAY 7, 2007
Penal Code – Amended by Act 22 of 1995 – section 308A – Cmelty to children -Credibility of victim – Contradictions per se and inter se – faulty memory – lackof corroboration – Criminal Procedure Code – Section 414(1) – Proof of age ofvictim – Evidence Ordinance – Section 45, Section 114(f) – Expert evidence -Evidence not challenged considered as admitted?
The accused-appellant was indicted for acts of assault committed on one "S' -an offence punishable under section 308(A) Penal Code – cruelty to children.
It was contended by the accused appellant that:
the victim was coached by the Police and hence unreliable;
evidence of the victim was not credible as there were materialcontradictions;
evidence of the victim was not corroborated;
no evidence to prove that the victim was below the required age
Held:
The only witness to the alleged act of cruelty was the victim, and thereare significant contradictions perse and inter se.
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But that does not mean that the entire evidence of the victim shouldbe rejected as being false. Contradictions may occur due to variousfactors, such as faulty memory.
Ranjith Silva, J.,
"It is true that the Police had tutored the victim to state various facts thatwere not within her knowledge such as the names of the accused and herhusband – but I have no doubt that the instances of cruelty alleged by thevictim such as the accused pinching and assaulting the victim have takenplace if not exactly the way she narrated" at least in some form or other.
Even though it transpired in the course of the evidence that the Policehas tutored the victim yet there is overwhelming evidence given by thevictim in regard to various other acts of cruelty and ill treatment metedout to her by the accused and the Doctor and the JMO havecorroborated the evidence of the victim, the evidence of the two expertwitnesses have gone virtually unchallenged;
The findings are based largely on credibility of witnesses and thefindings of the High Court Judge cannot be branded as perverse;
According to the facts and circumstances of the case it was notnecessary to lead the evidence of the osteologist/anatomist or dentalsurgeon to prove that the victim was less than 18 years of age at thetime of the incident;
The evidence with regard to the age of the victim given by the victimherself and the JMO – who is not a qualified osteologist/anatomist ordental surgeon – could be acted upon as what was not challengedwhen one had the opportunity to challenge has to be taken asadmitted especially so according to the facts and circumstances of thecase.
APPEAL from the High Court of Colombo.
Cases referred to:
Bhojraj v Sita Ram – AIR 193
Bharwada Bhoginbhai Hirijibhai v State of Gujarat – AIR 1983 SC 753 LJ -1983 Cr. L.J. 1983 1096
Samaraweera v Attorney-General – 1990 – 1 Sri LR at 256
Kashi Nath Panday v Emperor – Al R 1952 – Cal 214
Sugal v The King – (1945) 48 Bom LR 138
State v Shanker Prasad- AIR (1952) All 776 – 1952 Cr. U 1585
Wickremasooriya v Dedoleena – 1996 2 Sri LR 95
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Alwis v Piyasena Fernando – 1993 1 Sri LR 119 at 122
Fraad v Brown & Co. Ltd.- 20 NLR at 282
Mohamed Syedol v Ariffin – AIR 1916 PC 242
Laimayum Tonjouv Manipur Administration – AIR Manipur 5 (V49 C3)
Sulthan v Emperor-AIR 1934 Sind 119
Regina v Pinhamy- 57 NLR 169
Queen v Kularatne – 71 NLR 529 at 542
Visaka Ellawela v Attorney-General – CA 52/02 – HC 180/99 Colombo
Gratiaen Perera v The Queen – 61 NLR 522 at 524
Ajith Samarakoon v Attorney-General (Kobeigane Murder) 2004 – 2 Sri LR209 at 230
Sarwan Singh v State of Punjab – 2002 AIR (Sc) (iii) 3652 at 3655, 3656
Boby Mathew v State of Kamatake 2004 – 3 Cri LJ 3003
Himachal Pradesh v Thakur Dass – 1983 2 Cri LJ 1694 at 1983
Motilalv State of Madya Pradesh – 1990 – Cri LJ No.C 125 MP
Phillippu Mandige Nalaka Krishantha Kumara Thisera v Attorney-General -CA 87/2005 – CAM 17.5.2007
D.P. Kumarasinghe PC for accused-appellant.
Jayantha Jayasuriya D.S.G. for accused-appellant.
Cur.adv.vult.
June 04, 2007RANJITH SILVA, J.
The accused-appellant was indicted in the High Court of 01Colombo for acts of assault committed on one Welayudan Sivakumaribetween the 20th of January 1996 and 20th of January 1997 anoffence defined as "Cruelty to children" punishable under sec. 308(A)of the Penal Code as amended by the Penal Code (Amendment) ActNo. 22 of 1995. Sec. 308(A) of the Penal Code reads.:
"Whoever, having the custody, charge or care of any personunder 18 years of age, willfully assaults, ill treats, neglects orabandons such a person or causes or procures such a person to beassaulted, ill treated, neglected or abandoned in a manner likely to 10cause him suffering or injury to health (including injury to or loss ofsight or hearing or limb or organ of the body or any mentalderangement) commits the offence of cruelty to children."
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The prosecution in support of their case led the evidence ofSivakumari the victim, Dr. H. Sivasubramaniam, Drs. L.B.I. de Alwis(JMO), Nalin de Silva, a technician at the JMO's office, WPC Gayaniand WSI Indrani. The accused gave evidence from the witness boxdenying the charges.
After trial on the 28-2-2001 the accused-appellant who shallhereinafter be referred to as the accused was found guilty of thecharge and was sentenced to a term of three years rigorousimprisonment. In addition the accused was .ordered to paycompensation in a sum of Rs. 20,000 to the victim and in default wassentenced to a term of one year rigorous imprisonment. Aggrieved bythe said judgment and sentence the accused has preferred thisappeal to this Court challenging the judgment pronounced and thesentences imposed on the accused.
The Counsel for the accused argued that the conviction shouldbe set aside on the following grounds:
The victim was coached by the police and therefore she was .an unreliable witness.
The evidence of the victim was not credible as there werematerial contradictions in her evidence.
The evidence of the victim was not corroborated by Dr. Alwisthe JMO.
The absence of acceptable evidence to prove that the victimwas below the required age.
The first two grounds of appeal are inter related and can be dealtwith together
The entire case for the prosecution rests on the Credibility of thewitness Sivakumari the victim in this case. In this regard the principlesenunciated by Lord Roche in Bhojraj v Sita RarrP) are very pertinent.Lord Roche observed in the above mentioned case I quote "Howconsistent is the story with itself? (Consistency per se) How does itstand the test of cross-examination? (Stability under cross-examination) How far does it fit in with the rest of the evidence and thecircumstances of the case (consistency inter se).“
The only witness to the alleged acts of cruelty was Sivakumarithe victim. I find on a perusal of the brief and the oral and writtensubmissions made on behalf of both parties that there are some
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significant contradictions per se and inter se in the evidence of thevictim. The evidence of the victim in respect of one of the injuriesfound on her body (injury No. 2 fractured teeth) was contradictory tothe medical evidence led in the case, and the victim herself hascontradicted her own evidence in regard to injuries No. 1 and 2.
Referring to an injury on the head, above the right eye, (No. 1 inthe JMO report), the victim having first attributed it to the accused,later in her evidence admitted that the child of the accused had hit heron the head with a stick causing that injury, although she made anattempt to show that the accused too inflicted an injury on the same 6cplace. The victim admitted in cross examination that she had told thepolice that it was the child of the accused who inflicted that injury.
(Vide pages 58 and 59 of the brief)
As regard injury No. 2 (fractured teeth), according to the JMO'sreport and her evidence in Court the victim had given severalcontradictory versions as to how it happened. She had told the doctorthe JMO that the accused bashed her head on the floor. (Vide 155 ofthe brief) But what she had stated in her evidence in court issomewhat baffling and confusing. In her evidence she had stated thatthe accused held her hair and bashed her on the floor, in the same 70breath she had stated that the accused held her by the hair and hit heron the teeth and as there was some water on the floor, she slippedher leg and fell down and due to the fall two of her teeth broke intopieces. (Vide page 45 and 65 of the brief)
It is thus apparent that the victim had taken contradictorypositions as to the first and the second injuries found on her body. Itis also in evidence that some of the injuries were old scars of burninjuries inflicted by her own father when she was at home. Dr.Sivasubramaniam instead of corroborating the evidence of the victimhas stated in his evidence that the 2nd injury could not have been socaused as a result of a fall on the ground and thus contradicted theevidence of the victim with regard to injury No. 2 Dr. Sivasubramaniamhas assigned good reasons for forming this opinion. He has statedthat if the front two teeth were fractured as a result of a fall on theground, there ought to have been other injuries and since he did notobserve any injury on the nose or the chin the injury to the teeth couldnot have been caused as a result of a fall on the ground. (Vide page127 lines 9 and 10 and the first few lines of page 128)
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Dr. Sivasubramaniam has further stated that the injury to theteeth could have been caused by hitting with a weapon or by bangingthe face of the victim against some object by holding the victim by herhair. (Vide page 108). Both these positions described byDr. Sivasubramaniam were flatly contradicted by the evidence of thevictim.
There is another important factor that needs consideration bythis Court namely undue influence that was brought to bear upon thevictim by the police. The learned trial judge himself has stated in nouncertain terms highlighting a few instances that it was ex facieevident that the victim had been subjected to undue influence orpressure by the police in the course of their investigations and thatthere had been a colossal attempt to build up a case against theaccused. (Vide the judgment at page 287 of the brief) What isdiscernible from the comments made by the trial judge appears to bethat the two investigating police officers were unduly and culpablyinterested in the outcome of the case and that they tutored the victimto give false evidence against the accused. The learned trial judgehas referred to various unsatisfactory and grossly indecent actions onthe part of the police, deploring such practices. But the learned trialJudge has discreetly refrained from stating that the victim gave falseevidence.
Thus in the light of the contradiction per se on very materialpoints referred to above and the contradictory nature of the expertmedical evidence, with regard to the injury No. 2, coupled with theundue influence exerted by the police it is seen that the evidence ofSivakumari with regard to certain matters, is vague and unreliable. Butthat does not mean that the entire evidence of the victim should berejected as being false. Contradictions may occur due to variousfactors such as faulty memory etc.
The learned trial Judge in his judgment has commented andexpressed his sentiments with regard to the crooked practices on thepart of the investigating officers. Yet the learned trial Judge had optedto rely and act on the evidence of the victim despite the infirmities inher evidence. I cannot but admire and appreciate the efforts of thelearned Judge to do what he thought was just, without taking the easyway out. The approach of the learned Judge does not baffle me in anyway for the following reason.
go
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It is true that the police had tutored the victim to state variousfacts that were not within her knowledge, such as the names of theaccused and her husband. But I have no doubt that the instances ofcruelty alleged by the victim such as the accused pinching and 130:assaulting the victim have taken place if not exactly the way shenarrated, at least in some form or the other. Even though the victimgave contradictory versions as to how injuries I and 2 occurred I findthat it happened as a result of a faulty memory and not exactlybecause the victim was tutored. The victim had sustained the 2ndinjury about four years prior to the date she gave evidence in Court.
She was only 12 or 13 years of age at the time of the incident. Theincident itself was not such a palatable or a pleasant one that oughtto have remained imprinted in her memory. To say the least onecannot expect a child of such tender years to recall in the order of wsequence an incident that occurred under such tragic and traumaticconditions. (Vide Bharwada Bhoginbhai Hirijibhai v State of Gujarat<&.
In Samaraweera v The Attorney-GeneraP> at 256, it was held, Iquote "The maxim falsus in uno falsus in omnibus could not beapplied in such circumstances. Further all falsehood is not deliberate.Errors of memory, faulty observations, or lack of skill in observationupon any point or points, exaggeration, or mere embroidery orembellishment must be distinguished from deliberate falsehood
before applying the maxim In any event this maxim is not an
absolute rule which has to be applied without exception in every case 150where a witness is shown to have given false evidence on a materialpoint. When such evidence is given by a witness the question whetherother portions of his evidence can be accepted as true may not beresolved in his favour unless there is some compelling reason for
doing soThe jury of Judge must decide for themselves whether
that part of the testimony which is found to be false taints the whole orwhether the false can be separated from the true."
The third ground of Appeal – Lack of Corroboration
The tender years of the child coupled with the othercircumstances such as demeanour and unlikelihood of tutoring may 160render corroboration unnecessary but that is a question of fact in eachcase. On the contrary, the facts and circumstances in the instant caseindicate that the police had tutored the victim.
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In Kashi Nath Panday v Emperor w it was held "… it is a soundrule of practice not to act on the uncorroborated evidence of a childwhether sworn or unsworn but is a rule of prudence, not to law". (Seealso Sugal v The King <s>).
In State v Shanker Prasad®, it was held that the evidence of achild should be examined with great caution.
Even though it transpired in the course of the evidence that thepolice has tutored the victim yet there is overwhelming evidence givenby the victim in regard to various other acts of cruelty and ill-treatmentmeted out to her by the accused such as the accused pinching andassaulting her on numerous occasions. What is more Dr.Sivasubramaniam and the JMO who examined the victim hascorroborated the evidence of the victim. The evidence of the twoexpert witnesses has gone virtually unchallenged. Therefore onecannot argue that there isn’t corroboration of the evidence of thevictim. The victim had been examined by a competent dental surgeonand the medical evidence has referred to the observations of thedental surgeon as well. The report of the dental surgeon was markedas P3 subject to proof but has gone unchallenged when theprosecution closed its case leading in evidence P1 to P8. Sec. 414(1)of the Criminal Procedure Code reads thus; (only the relevant portionsare reproduced below).
'Any document purporting to be a report under the hand of
Government Medical Officer upon any person matter or thing duly
submitted to him for examinationmay be used as evidence in
any inquiry, trial or proceeding under this code although such officeris not called as a witness.’
The identity and the regularity of the report of the dental surgeoncould be presumed under section 114 of the Evidence Ordinance.Ever if the dental report were to be rejected yet there is other evidenceindependent of the dental report corroborating the evidence of thevictim. (Vide the evidence of Dr. Sivasubramaniam and the JMO)
It is well established that findings of primary facts by a trial judgewho hears and sees witnesses are not to be lightly disturbed onappeal. The findings of this case are based largely on credibility ofwitnesses. An appellate court can and should interfere even onquestions of facts although those findings cannot be branded as
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"perverse" unless the issue is one of credibility of witnesses keepingin mind that the trial Judge is better equipped to adjudicate on facts asthe trial judge is the one who has the priceless advantage and theprivilege of observing the demeanour and the deportment of thewitnesses.
A question of fact is a compendious expression comprising ofthree distinct issues. In the first place what facts are proved? In thesecond place, what are the proper inferences to be drawn from thefacts which are either proved or admitted? And in the last place whatwitnesses are to be believed? It is only in the last question any special 210;sanctity attaches to the decision of a court of first instance. On the firsttwo questions no special sanctity attaches. By any special sanctity ismeant the disinclination on the part of an appellate body to correct ajudgment as being erroneous. (Vide Wickremasooriya v Dedoleena <7>.
In Alwis v Piyasena Fernando<8> at 122 it was observed by thelearned Judges who heard that case as follows. “It is well establishedthat findings of primary facts by a trial Judge who hears and seeswitnesses are not to be lightly disturbed on appeal. The findings of thiscase are based largely on credibility of witnesses. I am therefore ofthe view that there was no reasonable basis upon which the Court of 220Appeal could have reversed the findings of the trial Judge."
In Fraad v Brown & Co. Ltd.M at 282 it was held I quote"… it israre that a decision of a judge so express, so explicit, upon a point offact purely, is overruled by a Court of Appeal because a Court ofAppeal recognizes the priceless advantage which a Judge of firstinstance has in matters of that kind, as contrasted with any Judge ofa Court of Appeal, who can only learn from paper or from narrative ofthose who were present. It is very rare that, in questions of veracity sodirect and as specific as these, a Court of Appeal will overrule a Judgeof a first instance." It was further held in that case that when the issue 230is mainly on the credibility of witnesses an appellate Court should notinterfere unless the findings of the Judge are perverse.
In the instant case the findings are based largely on credibility ofwitnesses and the findings of the learned High Court Judge cannot bebranded as perverse. I am therefore of the view that there is noreasonable basis upon which the Court of Appeal could reverse thefindings of the trial judge.
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For the reasons I have adumbrated above I reject the first threeground of appeal taken by the defence.
Now I shall turn to the 4th ground of appeal which is as follows
The absence of acceptable evidence to prove that the victimwas below the required age.'
The Counsel for the accused argued that the most importantelement in a charge under-section 308(A) of the Penal Code is theage and that the best evidence to prove the age is the birth certificateor, if it is not available, evidence of the mother or the father of thevictim could have been placed before Court. He further argued thatthe prosecution has failed to lead the best evidence but called theJMO Colombo to give an opinion, he is not properly qualified toexpress. In this context the Counsel for the accused has invited thisCourt to draw a presumption under sec.114 (f) of the evidenceordinance.
114(0 of the E.O.:
The evidence which could be and is not produced would ifproduce, be unfavorable to the person who withholds it.
In support of this contention (4th ground of appeal) the defencehas cited several Indian and local reported cases which I have citedbelow.
In Mohamed Syedol v Arriffini10> (decision of the Privy Council)"A certificate given by a doctor about the age on an examination of theteeth, appearance, and voice etc is not the certificate of an expert, butonly an assumption of his opinion which was worthless.
In Laimayum Tonjouv Manipur Administration!^ it was held interalia I quote: "As far as we know from medical jurisprudence theconclusive test in such matters of age is the ossification of bones andfor this X ray examination of the bones was absolutely necessary,(see also Sulthan v Emperorp2).
In order to emphasize that it is only an osteologist, or anAnatomist who is properly qualified to perform ossification test and tosome extent, dental surgeon, by examining the dentition and no othermedical person can give an authoritative opinion as to the age, thedefence has cited Regina v Pinhamp2) where it was held "The mere
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reference to the medical witness as JMO Colombo is insufficient forthe purposes of making his evidence relevant under section 45 of theEvidence Ordinance in regard to matters other than those whichproperly fall within the function of a medical practitioner." (See alsoQueen v KularatneW at 542)
In Visaka Ellawela v AG.nsj it was held that it is only anosteologist / anatomist and or a dental surgeon who is properlyqualified to express an opinion as to age and no doctor qualified in 280other fields is regarded as an expert in this field.
I have my highest regards and utmost respect for theobservation made and the views expressed by the eminent justices inthe above mentioned dicta. Whether the same would be applicable tothe facts and circumstances of this case and if so what the scope is,in its application are matters that need the attention of this Court.
A trial Judge is not prevented from bringing an independent mindto bear upon the question of age using what ever the legal admissibleevidence that is available to him, including his observations wherepossible. Expert evidence is not the sine qua non in each and every 290case where "proof of age" is in issue if the trial Judge can safely andcorrectly form an opinion of his own, independently of any expertmedical evidence. There could be instances; a decision on such anissue would not be possible without the assistance of an expert,qualified in the particular field. At the same time there may beinstances where such opinion would not be necessary and the trialJudge himself, or with the assistance of a medical officer like a JMO,even though such a medical officer may not be an expert on mattersrelating to age such as an osteologist/anatomist or a dental surgeon,could decide the issue.3oo
In Gratiaen Perera v The QueenW at 524 Sinnathambi, J.observed I quote: "While I would not go to the extent of saying that anexperts evidence would only afford 'some slight corroboration of theconclusion arrived at independently' I would hesitate to act solelyupon it. If there is other independent evidence in support of theconclusion reached, recourse need not be had at all to the expertevidence." It was further held in that case by Sinnathambi, J. "A Courtcannot of course without the assistance of an expert come to anopinion on so difficult a question, (emphasis added). At the same
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time the decision being the Judge's he should not be delegate hisfunctions to the expert. The opinion of the expert is relevant, but thedecision must nevertheless be the Judge's".
A careful study of this dictum of Sinnathamby, J. reveals that ifthe question is a difficult one 'expert evidence' may some times benecessary but if the question is not a difficult question then expertevidence may not be necessary. Thus if a child of three years is rapedand the birth certificate of the child is not available or the whereaboutsof the parents of the child are not known should the. trial judge or thedefence insist on a report from an osteologist/anatomist or a dentalsurgeon. Such a proposition undoubtedly would be absurd andludicrous.
In Laimayum Tonjou v Manipur Administration (supra) the age ofthe child was 15 years and the required age limit in that case was 16.Under the circumstances of that case as the margin was very thin(one year) it was held in that case that the prosecution should haveproved the age of the victim by leading expert evidence of anosteologist/anatomist or a dental surgeon. In that case the age of thevictim being 15 years and the age limit 16 it would have been a verydifficult question for the trial judge to decide on his own whether thechild was under 16 years of age, without the assistances of an expertqualified in that particular field.
But the facts and circumstances are rather different in this caseand the question to be decided was not a difficult one. In the instantcase the child was about 12 years at the time of the incident and therequired age limit is 18 years according to section 308(A) of the PenalCode. In the instant case the gap is about 6 years and the trial Judgecould easily decide that the child was below 18 years. On the otherhand the victim stated in evidence that she was 14 years of age at thetime she gave evidence at the trial and that should have alerted theprosecution that the child was 12 years of age at the time of theincident. Although the JMO was not a qualified osteologist/anatomistor a dental surgeon I hold that one need not be so qualified to observethat the victim did not have hair in her armpits or that her breasts werein the formative stages and express the opinion that the victim wasbelow 18.1 hold that even without the dental report there was ampleevidence for the trial judge to conclude that the victim was less than18 years of age at the time of the incident.
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For these reasons I hold that according to the facts andcircumstances of the case it was not necessary to lead the evidenceof an osteologist/anatomist or dental surgeon to prove that the victimwas less than18 years of age at the time of the incident.
On the other hand the age of the child was never in dispute.Theevidence of the victim or the JMO was not challenged not for nothingbut for obvious reasons best known to the defence. At this stage Iwould like to cite a few authorities in order to show that the evidence,with regard to the age of the victim given by the victim herself and theJMO could be acted upon. What was not challenged when one hadthe opportunity to challenge has to be taken as admitted, especiallyso according to the facts and circumstances of this case.
In the Kobaigana Murder Case Ajith Samarakoon v AG.<17> at230 Ninian Jayasuriya, J. held 'that evidence not challenged orimpugned in cross examination can be considered as admitted and isprovable against the accused.'
In Sarwan Singh v State of Punjab (,8> at 3655,3656 , "it is a ruleof essential justice that whenever the opponent has declined to availhimself of the opportunity to put his case in cross examination it mustfollow that the evidence tendered on that issue ought to be accepted."This case was cited with approval in the case of Boby Mathew v Stateof Karnataka.
In Himachal Pradesh v Thakur Dass <20> at 1983 V.D. Misra, CJ.held: "Whenever a statement of fact made by a witness is notchallenged in cross examination, it has to be concluded that the factin question is not disputed."
"Absence of cross examination of prosecution witnesses ofcertain facts leads to the inference of admission of that fact". MotilalvState of Madya Pradesh!2').
For a recent case I would like to refer to the Judgment of HisLordship Sisira de Abrew, J. in Pillippu Mandige Nalaka KrishanthaKumara Thisera v AG.<22>, I quote "….I hold that whenever evidencegiven by a witness on a material point is not challenged in cross-examination, it has to be concluded that such evidence is not disputedand is accepted by the opponent subject of course to the qualificationthat the witness is a reliable witness."
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For the reasons adumbrated above, in my judgment, on the factsand the law, as there is no merit whatsoever in any of the grounds ofappeal urged by the defence, I find no justification in interfering withthe verdict, findings or the judgment entered or the sentence imposedby the learned High Court Judge on the accused on 28.02.2001.
I affirm the conviction and the sentence and dismiss this appeal.
SISIRA DE ABREW, J.
Appeal dismissed.
I agree.