SCHOKMAN v. MOHAMED

004-NLR-NLR-V-35-SCHOKMAN-v.-MOHAMED.pdf


14
AKBAR J.—Sehokman v. Mohomed.
1933Present: Akbar 1.
SCHOKMAN v. MOHAMED.
177—M. C. Colombo> 66.
Contagious Disease—Failing to give notice—Lawful excuse—Burden of proof—
Ordinance No. 3 of 2897, 8. 6.
Where the accused was charged with failing to give information to theproper authority of the fact that a person was lying affected with small-pox in premises in which he was resident,—
Held, that under section 6 of Ordinance No. 3 of 1897 the burden ofproving that he had a lawful excuse for failing to give the informationwas on the accused.
Where the accused gives an explanation which appears to be reasonable,although the Court may suspect it is not true, the accused is entitled toan acquittal unless the prosecution can prove beyond any reasonabledoubt from other facts, whether in conjunction' with the accused’sexplanation or not, that either the accused had the guilty knowledge orthat the explanation of the accused is false.
^^PPEAL from a conviction by the Municipal Magistrate of Colombo.
Rajapakse (with him Ismail), for accused, appellant.
Navaratnam, for complainant, respondent.
June 5, 1933. Akbar J.—
The accused was charged with failing on December 30, 1932, forthwithto inform the proper authority of the fact that a person named RavithaUmma was lying affected with smallpox in No. 85 (26), Siripina lane,of which the accused was a resident, in breach of Rule 46 of Rules madeunder the Ordinance No. 3 of 1897, and punishable under section 7 (1).
The Municipal Magistrate found him guilty and sentenced him to threemonths’ rigorous imprisonment for the reason that he has set forth in hisjudgment and which I quote here:—“ I take a serious view of thesecases especially when the offenders are Muslims considering the numberof cases that have been concealed by them; and especially in this part ofthe City.”
As the case has not been proved against the accused, it is necessarythat I should state my reasons in full. The prosecution called twowitnesses, viz., Dr. Ranarajah, the Assistant Medical Officer of Health,and one Abdeen, the owner or rather the son-in-law of the owner of thegarden. The Assistant Medical Officer of Health said that on December 31,1932, he was informed, when he was occupied in a house to house inspectionat Siripina lane, that there was a patient in this tenement, and it is clearthat the informant was this accused as found by the Magistrate from theother evidence. He found this woman in this house suffering from small-pox, which was at least six days old. She was removed to the hospitalwhere she died on January 3, 1933. In view of the defence, let me quotefrom the doctor’s cross-examination: “ There had been' liouse to houseinspection regularly from December 15; house No. 26 (i.e., this house)had also been visited. Very careful inspections were made by Inspectors
AKBAR J.—Schokman v. Mohamed. .IS '
and Health Visitors. On December 30, too, visits were paid. No case
was detected in this house till December 31I did not ask
where the woman had been before.” Abdeen, the next witness, stated
that the accused was a permanent occupier of the house and that he knewthat house to house searches had been made at Siripina lane from Decem-ber 15. He also stated that accused worked on a steam launch. Thiswas all the evidence led up to this stage for the prosecution, and it will benoticed that the prosecution did not trouble to find out if this womanwas a permanent occupier of this house or not, and, if she was, how sheescaped detection during the daily inspections. This gap the Magistratetried to supply by calling Inspector Schokman of his own accord. Hestated that very often when these inspections were going on patients weremoved from house to house to escape detection. His evidence on thispoint was as follows:—“ There are here parallel ranges of tenementswith entrance facing each other. The Inspector and a Health Visitorgenerally start from the beginning of a range of tenements and whenthey get. to the end of that range, they start from the end of the nextrange. We have on several occasions found that while the Health Visitoris searching the house and the Inspector is making his notes in the formsprovided for the purpose, patients occupying tenements still to be inspect-ed are moved into tenements that have already been inspected. Theonly way to avoid this is by having someone to watch every tenementthat has been examined, but we haven’t the staff.”
He admitted in cross-examination as follows:—“ I have no informationto prove that Ravitha Umma was an inmate of the house prior toDecember 31.”
The accused’s evidence which shows his defence was as follows:—“ Hadjie Mohamed, son of Mohideen, Affirmed, 35, employed in steamlaunch owned by Bastian Fernando & Co., Accused.— My wife, my child,and I live in this house. According to my work I am away from homefor 2 or 3 days. I returned on 31st morning. I found the womanRavitha Umma in my house. She was ill. I suspected she had smallpox.I left for work on 30th morning and returned on 31st morning. WhenI left for work on 30th morning Ravitha Umma was not in the house.She is a relation of my wife’s. She is not a regular occupant of my house.As soon as I saw this was smallpox I informed the landlord. Landlordsaid Inspectors would be coming and he would inform. I was goingback home when I met the Inspector and the Doctor. I told than andtook them to my house.” He called three witnesses, one of them being aMoorman Ismail, and the other two Sinhalese, Singhohamy, who livesopposite the accused’s house, and Podisingho, next door to the accused.Ismail said that the only inmates of the house were the accused, his wifeand child, and that Ravitha Umma . was a woman from Galle. “ I hadseen Ravitha Umma at Galle; not seen her in accused’s house. I cannotsay whether Ravitha Umma stays in that house or whether that womancame from outside.” Singhohamy said that the regular occupants ofthe house were accused, his wife and child: “ I' live almost opposite theaccused’s house. The regular occupant of this house are accused, hiswife and child. On December 31 I saw the accused going with theInspector toward his house. If there was a patient in accused’s house
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AKBAR J.—Sehokman v. Mohamed.
in an advanced state of smallpox, I should have known it. If the patientwas locked in I would not know. I am not on visiting terms with accused.
I have never been inside accused’s house.”
Podisingho’s evidence is as follows:—“ I live in the house adjoiningaccused’s house. Regular occupants of accused’s house are accused’swife and child and himself; nobody else. I know a woman with small-pox was found in that house. I would have known it if there was apatient in the next house. I leave for work at 6 in the morning andreturn late at night.” On this evidence the Magistrate held as follows:—
“ It is admitted that accused did not give any information to the author-ities till the morning of December 31, when the Assistant Medical Officerof Health was about to make a house to house inspection, and had actuallyentered the garden to do so. Now, on the face of it, presuming thatRavitha Umma had been sick in that house for some days which I thinkone is entitled to do in view of the medical evidence, it is obvious thatthe information the accused gave was not given forthwith and it would■certainly appear that he did so only because he found the case was so badthat he could not conceal it any longer. If the facts are otherwise it isfor the accused to establish such facts. The prosecution has done all thatit can do in a case like this and I think a strong case has been made outagainst the accused. He has, in my opinion, entirely failed to establishthe extenuating facts on which he relies; these are that, so he alleges,the patient was only brought to the house or came to the house on thenight of December 30 and that he was away at his work from the morningof the 30th to the morning of December 31. The evidence of the witnessesthat the accused has called hardly helps his case on those points. Thefirst of them Ismail is obviously a very close friend if not a relation of thefamily, to judge from his own evidence. The other two are Sinhalese menwho would know very, little of what is happening in a Muslixn household.Neither of them claims to have ever visited the accused’s house. Whatdifficulty would there be in the accused and his wife concealing this casefor several days as I am inclined to believe they did? None whatever,especially when one realizes how reluctant people of the type of thesewitnesses, especially the Muslims, to give any information of the prevalenceof smallpox in their neighbourhood for fear of being transported to theSegregation Camp. The Muslim witness would certainly never havegiven the accused away and the Sinhalese neighbours might very wellhave been entirely ignorant of the existence of this case in a closed Muslimhousehold. The only way that accused could have established the factsthat he relied on in his defence would have been by definitely provingwhen Ravitha Umma came to the house, if, as he contends, she only cameon December 30 and by proving, through his employers, that he wasengaged in work during the 24 hours preceding the discovery of the case.In the absence of such evidence and in the light of the medical evidencethe only conclusion one can come to is that the patient had been in theaccused’s house several days before she was discovered.”
It will be seen from his judgment that he started with the presumption,that the woman had been sick in the house for some days, on the doctor’sevidence, and that the only way the accused could have established hisdefence was to prove that Ravitha Umma came to the house on December
AKBAR J.—Schokman v. Mohamed.
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30, and also by proving through his employers that he was engaged inwork during the 24 hours preceding the discovery of the case. Becauseaccused did not lead this evidence “he has” says the Magistrate “en-tirely failed to establish the extenuating facts on which he relies.” Inhis laudable anxiety to correct the faults of the Muslim community theMagistrate has failed to appreciate the fact that this is a criminal caseand that there is an overriding presumption of innocence in favour ofan accused and that it is for the prosecution to prove its case beyond allreasonable doubt.
Under section 6 of Ordinance No. 3 of 1897 the burden of proving thathe had a lawful excuse for failing forthwith to give information of a caseof smallpox is on the accused just as in the case of an accused whois charged with retaining or receiving with guilty knowledge stolenproperty soon after the theft the burden of accounting for the possessionis on the accused. But in this latter type of cases, which is exactlyanalogous on this question of burden of proof to the case now before me,it has been held in a series of cases in England and here that if theexplanation given by the accused is a reasonable one, even though theCourt suspects it may not be true, yet owing to this presumption ofinnocence in favour of the accused, the explanation, being reasonableon the face of it, would have the effect of causing a doubt in the mindof the trial Judge which must be reckoned in favour of the accused.
The accused in such cases is under no liability to prove the truth of hisdefence; if the explanation is reasonable and may be true that would besufficient to entitle him to an acquittal.
It will be seen from the Magistrate’s judgment in this case, that he doesnot hold that the accused’s defence is not a reasonable one or that it isfalse. All that he says is that because he has not led the evidence onthe two points in the manner indicated by him he has failed to establish hisdefence in the only way that he could have done.
It will be seen that there are several points which indicate that theaccused’s defence may be true. There is no evidence for the prosecutionto prove that Ravitha Umma was a regular occupant of the house or thatshe was there before December 30, or that she was seen being removedduring the house to house inspection. The fact that Ravitha Ummawas not detected till December 31 is a point corroborating the defenceeven though there was a possibility of her removal during the hours ofinspection. The prosecution led no evidence on this point and in acriminal case every link must be proved. The two Sinhalese witnessesdid-not testify to having seen Ravitha Umma before in the accused’shouse. Why did the prosecution not endeavour to lead evidence toprove that Ravitha Umma was an occupant of the house prior toDecember 30, 1932 ? If such, evidence had been led even in rebuttal, asthe prosecution was entitled to do, the case would have been clear againstthe accused.
The legal position in this case is exactly analogous, as I have said, tothat in a charge for retention of stolen property.
It only remains now for me to quote the authorities on the legal positionin such cases. There is a series of cases in Ceylon and Great Britain, but35/5
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AKBAR J.—Schokman v. Mohamed.
I need only refer to Attorney-General v. Rawther' and my judgmentin King v. Thomas Appu‘. In the latter case I have reviewed all theauthorities, and the following is an extract showing the principles thatshould govern these cases :—
“ When the Court decides to presume the guilty knowledge the burdenis cast on the accused to account for his possession. If the accused givesan explanation which appears to be reasonable, although the Court maysuspect that it is not true, in such an event the accused is entitled to anacquittal unless the prosecution can prove beyond any reasonabledoubt from other facts whether in conjunction with the accused’sexplanation or not either the accused had the guilty knowledgeor that the explanation of the accused is false. (See R. v. Norrisa, andthe remarks of Bertram C.J. at page 392 in Attorney-General v. Raw-ther (supra).) So that an accused may be convicted in spite ofhis explanation if the Court is of opinion that his explanation is not areasonable one in the circumstances, or even when it is prima fadereasonable if the prosecution proves other circumstances which, whetherin conjunction with the accused’s explanation or not, prove beyond anyreasonable doubt that the accused had the guilty knowledge.”
The following is an extract from Bertram C.J. in the former case :—
“ It is a recognized presumtion that the possessor of propertyrecently stolen who can give no explanation, or no reasonable explana-tion, of his possession, is either the thief or the receiver. This presump-tion is not a presumption of law, but a disputable presumption of fact.The principle may quite justly be put in this way that the possessionof property recently stolen casts upon the possessor the necessity oronus of giving an account of that possession. It was, no doubt, in thissense that Lord Alverstone C.J. in R. v. Powell said: ‘The possessionof recently stolen property throws on the possessor the onus of showingthat he got it honestly.’
“ But this does not conclude the matter. There is a counter pre-sumption of so fundamental a character as to override the presumptionalready explained. And it is in the light of this counter presumptionthat the former must be considered. This counter presumption, asI have indicated, is one of the most fundamental presumptions of theEnglish criminal law though nowhere mentioned in the EvidenceOrdinance—a circumstance which must be remembered when it issuggested, as it was originally suggested by the Acting Solicitor-General,that our Evidence Ordinance is intended to be a complete and exhaustivecode. That presumption is the ‘ presumption of innocence ’ and it isthus formulated in Taylor on Evidence, 10th ed., p. 113:—
‘ One of the most important of disputable legal presumptions isthat of innocence. This, in legal phraseology, ‘ gives the benefit ofa doubt to the accused,’ and is so cogent that it .cannot be repelledby any evidence short of what is sufficient to establish the fact ofcriminality with moral certainty. In civil disputes, when no viola-tion of the law is in question, and no legal presumption operates infavour of either party, the preponderance of probability, due regard1 25 N. L. R. 385.= 30 N. L. R. 431.
» (191?) L. i. K. B. 810.
AKBAR J.—Schokman v. Mohamed.
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being had to the burthen of proof, may constitute sufficient groundfor a verdict. To affix on any person the stigma of crime requires,however, a high degree of assurance; and juries will not be justifiedin taking such a step, except on evidence which excludes from theirminds all reasonable doubt.’
“This is what is meant when it is said that the burden of proofnotwithstanding any presumption which may arise from the facts,lies upon the prosecution throughout, and it is this principle that thedecision of the Court of Criminal Appeal in R. v. Ambramovitch (supra)was intended to recall and to re-emphasize.
“It will thus be seen that this decision did not, as the learnedMagistrate suggests, introduce new law, but re-affirmed the old. Theprinciple of that decision is, moreover, of general application. It is notconfined to cases of stolen property, but it applies to all cases in whicha prima facie case has been established against the prisoner, and he iscalled upon to answer it. Nor, properly considered, is there any incon-sistency between that principle and the dictum of Lord Alverstone C.J.in R. v. Powell above quoted. If further assurance of this fact is neededit may be found in a statement of that principle by Lord Alverstonehimself in R. v. Stoddart. That was not a case of receiving stolenproperty but of obtaining money by false pretence, but the words are ofgeneral application.
On page 242 he says : —
‘ The question, however, in this case is as to the direction whichought to be given where, as in this case, the defendant gave and calledevidence in answer to that prima facie case. It seems to us that thejury should have been told that if they accepted the explanationgiven by and on behalf of Stoddart, or if that explanation raised intheir minds a reasonable doubt as to his guilt, they should acquit him,as the onus of proof that he was guilty still lay upon the prosecution.If upon the whole evidence the jury are left in a real state of doubt,-the prosecution has failed to satisfy the onus of proof which liesupon them.’”
As regards the Magistrate’s remarks that the only way in which theaccused could establish his defence was by proving that Ravitha Ummacame to the house on 30th December, some allowance must be made forthe reluctance of the accused to call witnesses who will have to incriminatethemselves if they were going to help the accused by their evidence. Ona similar point, Bertram C.J. in the 25 N. L. R. case said as follows:—“ It is perhaps best to say that whether it is reasonable for the prisoner orfor the prosecution to cite the witnesses must depend on the circumstancesof the case. The case of Kandiah v. Podisingho (supra) decided by mybrother de Sampayo was a case in which it was not reasonable that theaccused should be called upon to cite the witnesses. But in all thesecases it should be borne in mind that if the property really was stolen,the witness referred to as the person from whom the prisoner received itis almost certain to be directly or indirectly connected with the crime.It is not likely that such a witness will give a frank account of the circum-stances, and allowance must be made* for any reluctance on the part ofthe accused to call him ”.
20DALTON A.C.J.—Adaikappa Chettiar v. Thos. Cook & Son.
These, I think, are the principles which should be applied in this caseand in my opinion the conviction is wrong and the accused must beacquitted. I have set forth my reasons in full, so that they may be ofsome use to the Health Department in future prosecutions. In the eventof the prosecution being taken by surprise by the defence of the accusedit can always move to lead evidence in rebuttal under section 190 of theCriminal Procedure Code. In the view that I have taken it is notnecessary to consider the further point taken by Mr. Rajapakse that theburden of giving a lawful excuse did not shift to the accused in this case,as the prosecution did not prove that the accused failed to give information“forthwith” or in other words as the prosecution led no evidence toprove that accused knew of Ravitha Umma’s condition before December 31,1932. The conviction is set aside and the accused is acquitted.
Set aside.