THE QUEEN v. TENNAKONE MUDIYANSELAGE APPUHAMY

079-NLR-NLR-V-60-THE-QUEEN-v.-TENNAKONE-MUDIYANSELAGE-APPUHAMY.pdf


The Queen v. Tennakone Mudiyanselage Appuhamy
313
[1st the Court of Criminal Appeal]
1959 Present: Basnayake, C.J. (President), Pnlle, J., andH. N. G. Fernando, J.THE QUEEN v. TENNAKONE MUDIYANSELAGE APPUHAMYAppeal 123 of 1958, with Application 1598. G. 35—M. G. Ghilaw, 16,857
Evidence—Information received by police officer from accused—How much of it may beproved—Mode of proving it—“Fact”—Is a person a “fact” ?—Confessioninduced by the use of violence or threats of violence—Inadmissibility—Discoveryof evidence—Unlawful methods should not be resorted to—Evidence Ordinance(Cap. 11), ss. 3, 25,26, 27,161—Criminal Procedure Code, S3.122,123,133,134.
Practice—Evidence for defence—Requirement that accused should be cdUed before any
of his witnesses.
Section 27 (1) of the Evidence Ordinance reads as follows:—
“ Provided that, when any fact is deposed to as discovered in consequence ofinformation received from a person accused of any offence, in the custody of apolice officer, so much of such information, whether it amounts to a confessionor not, as relates distinctly to the fact thereby discovered may be proved. ”
Held, (i) that the discovery of a witness is not the discovery of a fact withinthe meaning of the section. A person is not a *' fact ” within the meaning ofthat word in section 3 of the Evidence Ordinance. It is only when a “ fact ”has been discovered in consequence of information given by an accused personand when a witness has given evidence to that effect that so much of such infor-mation as relates distinctly to the fact thereby discovered may be proved.
Rex v. Sudahamnia (1924) 26 N. L. R. 220, not followed.
that if a police officer acts contrary to section 123 of the Criminal Proce-dure Code and forces an accused person, by the use of violence or threats ofviolence, to make statements which are not his own, but the contents of whichhave been put into his mouth, such statements will not fall within the meaningof the word “ information ” in section 27 of the Evidence Ordinance.
that if a statement admissible under section 27 (1) of the EvidenceOrdinance is being used to refresh the memory of a witness who recorded it,the fact should be made clear so that the adverse party may exercise the rightconferred on him by section 161.
Observations on the methods of torture and violence resorted to by the Policein the present case for the purpose of discovering evidence against personssuspected of having committed the burglary.
An accused who is detained in Police custody cannot in law be forced to gofrom plaoe to place and help the Police to discover evidence against him.
Persons examined under section 122 of the Criminal Procedure Code mustnot be made to sign their statements.
When the accused and his witnesses are called for the defence, the accusedought to give his evidence before he has heard the evidence and cross-examina-tion of his witnesses.
14LX
2J. N. 213032—1,593 (4/59),
314 BAS-NAYAICE, C.J.—The Queen v. Tenjuilcone Afatdiynnselage Appv.hawiy
A
■UAPPEAL against a conviction in a trial before the Supreme Court.
Colvin S. de Silva, with M. L. de Silva, for Accused-Appellant.
A. 0. Alles, Deputy Solicitor-General, with P. Colin Thome, CrownCounsel, for Attorney-General.
C'nr. ((dr. rult.
February 27, 1959. Basxayake, C.J.—
The appellant Tennakone Mudiyanselage Appuhaniy (hereinafterreferred to as the appellant) and another, Katnayako Rajapnkse ATudi-yanselage Weerasekera (hereinafter referred to as Weorasckom), wereindicted on charges of house-breaking by night by entering the officeof the Uturu pitigal Korale Co-operative Union, Chilav (hereinafterreferred to as the Union), with intent to commit theft and committingtheft of cash, cheques and money orders to the value of Rs. 4s,007/02,property in the possession of K. M. D. Rajapakse, its Cashier.
After the jury had been empanelled but before Crown Counsel com-menced his opening address, learned counsel for the prisoners expressedhis desire to make a submission to the learned Commissioner in theabsence of the jury. He invited him to give his ruling in regard to theadmissibility of a document P46—a statement made l>y Weerasekerato the Magistrate and recorded under section 134 of the Criminal Pro-cedure Code. His submission was that the statement was false and madeunder duress.
In that statement Weerasekera confessed his complicity in the crimeand gave the following account of how he along with the appellant,Y. H. Piyadasa, Wijesinghe, and a man whom he did not know (whoshall for convenience be referrd to as “ the unknown man ”) went tothe store in a car on the night of 1st July 1956. The appellant and theunknown man broke the padlocks and opened the front door, the unknownman unlocking it with a key. Wijesinghe remained on the road whilethe others entered the building. Weerasekera held a torch while theappellant opened the inner room and also the safe with lays he had withhim. The contents of the safe were emptied by the appellant into agunny bag held by the unknown man. Thereafter they went with thebooty to the appellant’s house in Aattandiya in the car in which theycame. Weerasekera was told that his share was Rs. 4,700 but he actuallyreceived Rs. 700 out of which he settled a debt of Rs. 400 which he owedone Leon Singho and deposited Rs. 300 in the Bank of Ceylon Branch atChilaw. He added that the appellant was wearing gloves when he openedthe door and the safe.
Learned Crown Counsel sought to establish, by calling the Magistratewho recorded the statement to give evidence, that Weerasekera made thestatement voluntarily. The Magistrate was cross-examined by counselfor the defence. Counsel for the defence called Weerasekera to giveevidence to prove that he was coerced by violence and threats to make the
BASNAYAKE, C.J.—The Queen v. Tennakone Mudiyanselage Appuhamy 315
confessionary statement which was fake. Learned counsel for thedefence also called three other witnesses, Peter Perera who was theAdministrative Secretary of the Union at the relevant date, CharlesWijesinghe, Hotel Proprietor and business partner of the appellant, andDr. Andrew Fonseka, District Medical Officer of Chilaw in July 1956.AH these witnesses were cross-examined by the Crown.
Weerasekera and the other witnesses described how they were severelyassaulted, harassed and humiliated by Inspector Egodapitiya in anattempt to make them confess that they committed the crime. Thedoctor described the injuries on Weerasekera, the appellant, and Wije-singhe, and stated that each of them was in hospital for three days.
After hearing this evidence the learned Commissioner formed theconclusion that the confessionary statement was not made “voluntarily”.On the uncontradicted evidence before him the learned Commissionerquite properly rejected the confessionary statement. It is noteworthythat although grave allegations of the use of violence and third degreemethods were made against Inspector Egodapitiya he was not called bythe Crown to contradict them. Learned Crown Counsel then stated:" In view of Your Lordship’s ruling that the entirety of the confession isinadmissible and that the confession amounts to the whole of the evidenceagainst the 2nd accused, I move to withdraw the indictment againstthe 2nd accused.” The learned Commissioner allowed this applicationand discharged Weerasekera.
Crown Counsel next made his opening address and the trial againstthe appellant proceeded. The jury found the appellant guilty on bothcharges and he was sentenced to a term of seven years’ rigorous imprison-ment on the 1st charge and to a term of five years’ rigorous imprisonmenton the 2nd charge, the sentences to run concurrently. This appeal isagainst that conviction. The grounds of appeal urged are—
That the verdict is unreasonable and cannot be supported having
regard to the evidence.
That confessionary material of a gravely prejudicial character was
illegally admitted in evidence resulting in a miscarriage of justice.
That there is no proof that the prints compared by the Registrar
of Finger Prints with the prints found on the safe were theprints of the accused which were taken in court by SergeantDaniel on the 13th of July 1956.
That the learned trial Judge should have directed the jury that
there was no evidence in the case which would entitle the juryto hold that the accused disposed of Rs. 4,100 on the 3rd ofJuly 1956, and that the failure to do so resulted in prejudiceto the accused which led to a miscarriage of justice.
It is convenient at this point to state briefly the relevant facts whichare as follows: Early on the morning of Tuesday, 3rd July 1956, whenAlphonso Fernando, peon of the Union, went to open the door of theoffice he found that the front door had been forced open. He immediatelyproceeded to the house of the Administrative Secretary, Peter Perera,
316 BASNAYAKE, C.J.—The Queen «. Tennctkane Mudiyanselage Appuhamy
and informed him. He directed the peon to inform the Cashier, Dana-sena Rajapakse. Rajapakse met Peter Perera on his way to the officeand together they went to the Police Station and came there along withthe Police. On arrival they found that the iron bar and the padlocksof the front door were missing. Some of the hasps were also missing.The staples had been wrenched off and one was on the ground. Thefront door was ajar, the door leading to the room which contained thesafe was also ajar, and the safe itself was partly open. Inspec tor Egoda-pitiya immediately sealed the building and informed the Finger PrintBureau, and two officers from the Bureau, Sub-Inspector Edwin MichaelFernando and Police Sergeant Hegoda, examined the safe, and the latterphotographed some latent finger and palm impressions on the safe whichthe former developed by the application of a chemical powder.
The Cashier and the Administrative Secretary M ere taken into custodyas suspects and produced before the Magistrate on 4th July 1950. Theywere remanded till 3 p.m. the next day and were again remanded till9th July. On that day they Mere allowed bail in Its. 2,5oi) each, andfurther proceedings were put off till 26th July. Inspector Mi-kin arrestedthe appellant and Weerasekera on 12th July at 10.30 a.m. at the DistrictCourt premises. He produced them before the Magistrate on the nextday at about 1 p.m. and moved that they bo ordered to give their fingerand palm impressions, and order was made accordingly. The Magistratealso directed that the report of the Finger Print Expert be furnished on26th July. The appellant M-as represented by counsel ulio brought tothe notice of the Magistrate that his finger and palm impressions hadalready been taken at the Police Station and that he M-as also assaultedby the Police. The learned Magistrate does not appear to have takenany notice of this complaint. In a predicament such as that in M'hichthe appellant and Weerasekera M’ere placed there M as no one to whom theycould complain except the Magistrate and it is regrettable that theirallegations passed unheeded.
Bail in Rs. 5,000 each was ordered in respect of them and they Merebailed out on 16th July. The appellant and Weerasekera were at theirrequest taken by the Fiscal to the Chilaw Hospital that very day. On26th July on the motion of the Police the Cashier and the AdministrativeSecretary were discharged. The case was then fixed for 9th Augustand on that day put off for 19th October, as the inquiries u'ere not com-plete. The inquiry was again put off for 8th November and on that day,more than four months after the commission of the crime, a report undersection 148 (1) (b) of the Criminal Procedure Code mas filod, chargingthe appellant, Weerasekera, R. M. Jinadasa and Y. H. Piyadasa nith theoffences of house-breaking and theft. This long delay in institutingproceedings against the appellant and the other accused remains un-explained. At the end of the inquiry on 21st September 1957, more thanfourteen months after the date of the offence, the Magistrate dischargedJinadasa and Piyadasa, and committed the appellant and Weerasekera fortrial to the Supreme Court. From the very outset of the proceedingscounsel for the appellant and Weerasekera charged the Police with usingviolence on them and Inspector Egodapitiya was accused in particular.
BASNAYAKE, O.J.—The Queen v. Tennakone MuAiyanseUtge Appuhamy 317
Objection was also taken to bis leading evidence for the prosecution.On 15th March 1958, more than one year and eight months after the dateof the offence, the appellant and the other accused were indicted. It isnot in the interests of justice that such a long time should elapse betweenthe date of the offence and the indictment of the accused. Instances ofdelay are becoming far too common and those in charge of prosecutionsshould give serious attention to the causes of such delay and take earlysteps to remove them. The trial, which commenced on 23rd September1958, lasted seven days.
The evidence tendered against the appellant falls into the followingcategories :—
(a) Evidence of identity of two finger and two palm impressions of theappellant on the iron safe of the Union Office.
Evidence that Daniel the goldsmith turned out in lead the tongueportion of what resembled the key of a safe according to apattern provided by the appellant.
Evidence that David the blacksmith turned out three door keys of
iron according to impressions on soap supplied by the appellantand a steel key according to a specimen in lead also suppliedby the appellant.
Evidence that a few days after the burglary the appellant paid off a
mortgage debt of Rs. 1,500 and gave a loan of Rs. 1,600 to onePodiappuhamy.
Evidence that the appellant gave a sum of Rs. 1,000 to Rev.
Pragnakeerti.
The appellant himself gave evidence denying the oharges and calledsix witnesses including the Magistrate. The evidence for the defenceconsisted mainly of the atrocious treatment meted out not only to theappellant but to all other persons who were from time to time suspectedof having committed this burglary. The persons who complained onoath of the use of violence, torture, and the most humiliating treatment byInspector Egodapitiya are the appellant, Weerasekera the dischargedaccused, Peter Perera the Administrative Secretary of the Union whowas at one time an accused, and Wijesinghe a businessman of Nattandiyaand a partner of the appellant in the business of Ratnasiri Hotel in Chilaw.The District Medical Officer who examined Wijesinghe, Weerasekera,and the appellant at the Hospital where they sought treatment also gaveevidence of the injuries he found on them.
Of the grounds of appeal the second, which is the most important, willbe dealt with fust. The Crown proved through Inspector Egodapitiyathe following statements made by the appellant to him and recorded byhim :—
‘‘ (a) I went to Daniel Baas the goldsmith and got him to pour lead onto the impressions and got the key.
I kept Rs. 3,100 with Appuhamy of Pillakalamulla and I gaveRs. 1,000 to Rev. Pragnakirti Thero of Nigrodaramava Templeof Nattandiya. ”
2»J. X. B 130S2 (4/59)
318 BASNTAYAKE, C.J.—The Queen v. Tennakone Mudiyanselage Appuhcmy
These statements were admitted by the learned Commissioner undersection 27 of the Evidence Ordinance. That section reads :
“ (1) Provided that, when any fact is deposed to as discovered inconsequence of information received from a person accusedof any offence, in the custody of a police officer, so much of suchinformation, whether it amounts to a confession or not, as relatesdistinctly to the fact thereby discovered may be proved. ”
In admitting the statements set out above the learned Commissionersaid that he was satisfied on the evidence placed before him in connexionwith the confession of Weerasekera that the statement made by theappellant to the Police was not a voluntary statement but had beeninduced by Inspector Egodapitiya under duress as a result of an assaultor threat of an assault. The learned Commissioner took the view thatthe fact that the information had been forced out of the appellant bythe use of violence on him did not preclude the Crown from provingit under section 27. He also held that the facts discovered in consequenceof the information were the witnesses Daniel the goldsmith, Podiappuhamyand Rev. Pragnakeerti.
We are unable to uphold the learned Commissioner’s view, Accordingto the prosecution the facts discovered were the witnesses. Is a person a“ fact ” ? We think not. The expression “ fact ” as used in the EvidenceOrdinance—
“ means and includes—
anything, state of things, or relation of things capable of being
perceived by the senses;
any mental condition of which any person is conscious. *’ (a. 3)
The tracing of the witnesses is not a fact within the above definition;because it is their evidence and not their existence that is relevant. DidEgodapitiya “ discover ” Daniel the goldsmith ? The ev idence of Egoda-pitiya on the point negatives such a conclusion. This is his evidence :—
“ 2692. Q : The next place you visited that night was the house of one
Daniel the goldsmith ?
A: Yes.
Q : Which place you reached at 9.17 p.m.
A: Yes.
Q : You had not even questioned this man Daniel earlier ?
A : Yes, that was the first time in fact that I saw him.
To Court: 2695. Q : Who took you to Daniel ?
A: This accused.
Examination continued—
2696. Q : Would it be correct to say that it was on the accused’s
directions that you went to Daniel ?
A: Yes. ”
BASNAYAKE, C.J.—The Queen v. Tennakone Mudiyaneelaye Appuhamy 319
It is only when a “ fact ” has been discovered in consequen ce of informa-tion given by an accused person and when a witness has given evidenceto that effect that so much of such information as relates distinctly to thefact thereby discovered may be proved. In the case of Rex v. Sudahamma1,which the learned Commissioner followed, it was held by JayawardeneA. J. that the discovery of a witness was the discovery of a “ fact ”and that the circumstance that the discovery was made not in conse-quence of information given by the accused but by the accused himselfdoes not make section 27 inapplicable. We are unable to agree withthat view. The report does not show that either the definition of “ fact ”or the distinction between the existence of a person and the evidencehe can give was considered. The section, which enables the proof ofeven a confession made by an accused person while in the custody of aPolice Officer, is an exception to the rule enacted by sections 25 and 26which forbids the proof of confessions made by any person to a PoliceOfficer or while he is in the custody of a Police Officer, and must be strictlyconfined to the case provided therein.
The next question is whether information forced out of an accusedperson by the use of violence is the kind of information contemplated insection 27. We think not. The Legislature does not enact laws on theassumption that the guardians of the law will themselves break them.When construing a legislative instrument regard must therefore be hadto this fundamental assumption. Section 123 of the Criminal ProcedureCode provides :
“No inquirer or police officer shall offer or make or cause to beoffered or made any inducement, threat, or promise to any personcharged with an offence to induce such person to make any statementwith reference to the charge against such person. But no inquireror police officer shall prevent or discourage by any caution or otherwiseany person from making in the course of any investigation under thisChapter any statement which he may be disposed to make of his ownfree mil. ”
The investigation under Chapter XII must not therefore be tainted bystatements illegally forced out of persons be they accused or be they not.Similar protection is provided against confessions being extracted bypeace officers and persons in authority by section 133 of the CriminalProcedure Code which provides:
“ Except as provided in Chapter XXII no peace officer or person inauthority shall offer or make or cause to be offered or made any induce-ment, threat, or promise to any person charged with an offence to inducesuch person to make any statement having reference to the chargeagainst such person. But no peace officer or other person shall preventor discourage by any caution or otherwise any person from makingany statement which he may be disposed to make of his own free will. ”
The Evidence Ordinance further protects an accused person by forbiddingthe proof of a confession even when made of his own free will to a Police
1 (1924) 26 N. L. R. 220.
320 BASNAYAKE, C.J.—The Queen v. Tennakone M udiyanselage Appuhettny
Officer (s. 25) or when in the custody of a Police Officer except in theimmediate presence of a Magistrate. If a Police Officer acts contraryto section 123 of the Criminal Procedure Code and forces an accused personby the use of violence or threats of violence to make statements whichare not his own, but the contents of which have been put into his mouth,such statements will not fall within the plain meaning of the word“ information ” in section 27 of the Evidence Ordinance.
The entire scheme of our Criminal Procedure Code and the EvidenceOrdinance is against the admission in evidence of confessions inducedby the use of violence or threats of violence. In this respect our law,though enacted in the form of Codes, is in accord with the law obtainingin most advanced countries and gives expression to the same principles.Nihil consensui tarn contrarium est quarn vis atque metus (nothing is sodestructive of consent as force and fear) is a maxim applicable alikein civil and criminal law. In this connexion it will not be out of placeto quote the admirable statement on the subject of forced confessionsin Wigmore on Evidence, which though made in relation to the lawsof England and America is applicable to our country, (s. 833 Vol. Illp. 267)—
“ A threat of corporal violence is the clearest case of an inducementthat excludes the confession. To escape the disagreeable conse-quences of silence—whip, gallows, or rack—the threatened personnaturally prefers to utter what his tormentors desire to hear—aconfession. He trusts to chance to enable him to repudiate his untrueavowal and vindicate his innocence; or perhaps, under the violentpain of the rack, he thinks of nothing but the present relief fromagony which his confession will gain him. Not every threat ofviolence, to be sure, is necessarily sufficient to cause distrust of theconfession which follows it; ‘ I shall put you out of my house unlessyou confess yourself guilty of this murder ’ has obviously no tendencyto cause a false confession. But the typical cases of such violencein legal annals—the rack of the inquisitor, the whip of the slave-owner, and the slipnoose of the jail-breaking mob—serve as theclearest and least questionable instances of an inducement whichvitiates a confession for evidential purposes.
“ That a confession obtained by the rack, or a threat of the rack,is inadmissible was apparently never judicially decided ; that it wouldbe inadmissible is of course unquestioned to-day. Confessions obtainedfrom slaves under the whip, or a threat of the whip, have usuallybeen excluded, upon the circumstances of the case presented. Con-fessions made in fear of a mob are usually made under circumstancescalculated to educe a false confession ; and in almost all the instancesbrought before the Courts they have been excluded, usually withpropriety upon the facts of the case. Other forms of violence orphysical intimidation seem to be rare ; except in certain communitieswhere the police administration has degraded itself by crudemethods. ”
In the instant case we cannot escape the conclusion that, on the evidencewhich the learned Commissioner has accepted and with whose conclusions
BASNAYAKE, C.J.—The Queen v. Tennahone MutUyanselage Appuhamy 321
we have no reason to disagree, “ the police administration has degradeditself by crude methods. ”
Apart from the fact that the statements do not fall within the ambitof section 27 the way in which they were produced in evidence is opento serious objection. The witness did not pretend to remember thevery statements recorded as having been made by the appellant. Itwould appear from the examination-in-chief that they were read outto him by Crown Counsel who had a copy of the written statementbefore him. This is how the evidence reads in respect of Daniel—
“ 2705. Q: Earlier in the afternoon you recorded the statement ofthe accused at the Police Station ?
A: Yes.
Q: The accused in that statement made a reference to Daniel
Baas ?
A: Yes.
Q: In that statement half way down had the accused told
you this: ‘ I went to Daniel Baas the goldsmith andgot him to pour lead on to the impressions and getthe key ’ ?
A: Yes.”
and this is how it runs in regard to Podiappuhamy—
“ 2735. Q : Did you go to the house of Podiappuhamy on your ownor were you taken there ? On whose information didyou discover that Podiappuhamy was a witness ?
A: On the statement of the accused.
2736. Q : In that statement you had recorded of the accused at thePolice Station did he tell you, ‘ I kept Rs. 3,000 withAppuhamy of Pitakatuwella ’ ?
A: Yes, I was taken to the house of this witness by theaccused. ”
The following is the evidence in regard to the other witnessRev. Pragnakeerti
“ 2748. Q : Did you go to that temple and question the priest on anyinformation you received ?
A: Yes.
Q : From whom did you receive that information ?
A: That was also on the statement made by this accusedthat I went there.
Q: And you discovered the priest was a witness ?
A: Yes.
Q : That is the witness Ratnakirthi Thero ?
A: Yes…
322 BASNAYAKE, C.J.—The Queen v. Tennakone Mudiyanselage Appuhamy
Q : And in the course of the accused’s statement at the PoliceStation did the accused tell you, ‘ I gave Rs. 1,000 toRevd. Pragnakeerti Thero of Nigrodaramaya Templeof Nattandiya ’ ?
A: Yes.”
It would appear from the questions and answers quoted above thatlearned Crown Counsel, with the wTitten statement before him, virtuallymade the jury aware of various parts of it. If the statement was beingused to refresh the memory of the witness that should have been madeclear so that the adverse party may exercise the right conferred on itby section 161. The right conferred by that section is a valuable rightand an accused person must not be denied its benefit by- the adoptionof a course not warranted by law. In the instant case the writtenstatement itself could not be used except for the purpose of contradictingthe appellant (if such a course became necessary) or refreshing thememory of the person recording it. The course adopted by learnedCrown Counsel deprived the accused of the benefit of that section. IfCrown Counsel was relying on Rex v. Jinadasa1 for the step he tookhe was clearly mistaken.
The third ground of appeal is that there is no proof that the appellant’sfinger and palm impressions taken in court were the impressions examinedby the Registrar of Finger Prints. The evidence of the Registrar ofFinger Prints on this point is given in answer to a leading question :
“2331. Q : Subsequently on the 13th July 1956 you receied fromthe Magistrate’s Court, Cliilav, by Registered Postcertain finger and palm prints taken in the Magistrate’sCourt, Chilaw. by Police Sergeant Daniel '
A : Yes, P. S. No. 2098 Daniel. ”
But Police Sergeant Daniel does not say that he despatched the fingerand palm impressions taken by him by registered post. Ho only says.
“ Subsequently these prints were sent to the Registrar of Finger Prints. ”He does not say by whom, how or when they were sent. The prosecu-tion should have proved by definite evidence that the finger and palmimpressions taken by Police Sergeant Daniel were the very finger andpalm impressions examined by the Registrar, especially as, on Egoda-pitiya’s own admission, the appellant’s finger and palm impressionsw’ere taken before he was produced iii the Magistrate’s Court. Thosefinger and palm impressions were sent by special motor-cycle orderlyto Colombo almost immediately after they were taken on 12th July.They were handed by Police Constable Latiff to Assistant Superintendentof Police Thalayasingham at 4.40 p.m. on that very day.
This act of Egodapitiya in taking the appellant’s finger and palmimpressions and despatching them to the Registrar of Finger Printseven before the appellant was taken to the Magistrate and thereafterapplying to the Magistrate for an order on the accused that they shouldfurnish their finger and palm impressions is perplexing. What was the
1 (1950) 51 N. L. R. 529.
BASNAYAKE, C.J.—The Queen v. Tennakone Mudiyanselage Appuhamy 323
need for another set of finger and palm impressions of the accusedpersons after a set had already been despatched to the Registrar of FingerPrints 1 The conduct of the Police in regard to the finger and palmimpressions makes it necessary to approach the finger-print evidencewith suspicion.
The appellant explains in his evidence how his finger impression8could have got on to the safe. Rajapakse the Cashier was a friendof his who stayed at his hotel every Monday. The appellant used togo to the 'Union Office to obtain change and on occasion to meet theCashier. On those occasions he would stand by the safe. On the dayon which the burglary was discovered Rajapakse, when asked whowere the persons who came to the office frequently, named the appellantand three others. The appellant says in his evidence that the lastoccasion on which he went to the Union Office was on the Saturdayimmediately preceding the burglary. The existence of the appellant’sfinger impressions on the safe is therefore not inconsistent with hisinnocence. It was sought to establish that the finger and palm impres-sions were fresh and thereby tilt the scales against the appellant. Thewitness Inspector Fernando who gave this evidence was not put forwardby the prosecution as an expert. He has admitted that a latent fingerimpression may remain fresh and decipherable even after a month ortwo. The prosecution having failed to exclude the possibility of thefinger impressions having come there innocently cannot be said to haveestablished that their presence on the safe proves that the appellantwas the thief.
In regard to the last ground there is no substance in it. The learnedCommissioner has expressly stated in his address to the jury—
“ There is no evidence that that particular money stolen from the
Co-operative Union has been paid to Podiappuhamy or the priest; ”
The first ground of appeal that the verdict is unreasonable or is un-supported by the evidence need not be discussed except in passing inview of the conclusion we have formed on the second ground that thestatements (a) and (b) said to have been made by the appellant havebeen wrongly admitted. We have next to consider whether the evidenceimproperly admitted vitiates the conviction. If so whether we shouldquash the conviction and enter an order of acquittal or order a newtrial. We are of opinion that the evidence improperly admitted isfatal to the conviction and that we should quash the conviction and notorder a new trial as the entire case has been tainted by the illegal conductof the Police, especially of Inspector Egodapitiya.
In view of David’s expression of fear of the Police we cannot confi-dently approach his evidence as the evidence of a witness who regardshimself as free to speak the truth. Nor can we approach the evidenceof Daniel the goldsmith with the conviction that it was uninfluencedby the Police. Daniel says he turned out in lead a key like the genuinesafe key P1a on Egodapitiya’s order, which the Inspector took awaywith him. Egodapitiya denies it. A lead key similar to the one Danielsays he made for the appellant was fished out of a pool of water ip
324 BASNAYAKE, O.J.—The Queen v. Tennakone Mudiyanselage Appuhmny
David’s smithy by Sub-Inspector Kodituwakku shortly after mid-night on 11th July. Was this the key Daniel made for Egodapitiyaor was it the key he says he made for the appellant ? The prosecutionclaims that it is the specimen Daniel made for the appellant; but thecircumstances surrounding its discovery make that evidence highlysuspicious. Besides there is a serious discrepancy between Daniel’sevidence and that of David in regard to the lead specimen ; accordingto David it was brought to him many days before Daniel says he made it.In addition to the taint of illegal conduct of the Police the above in-firmities in the crucial evidence and the suspicion that shrouds thefinger-print evidence convince us that the ends of justice will not beserved by a new trial. We therefore quash the conviction and directthat a judgment of acquittal be entered.
Before we part with this judgment we must refer to the most disturbingfeature of this case. The appellant and Weerasekera were arrested byInspector Miskin in the premises of the District Court of Chilaw at about10.30 a.m. on 12th July, within 20 or 30 yards of the Magistrate’s Court,at a time when the Magistrate was on the Bench. But they were takento the Police Station and produced in court only the next day at about1 p.m. This is a studied disregard of the provisions of sections 36 and37 of the Criminal Procedure Code (which the Police undoubtedly knew;—provisions which are designed to protect the citizen against detentionin custody without a judicial order in that behalf. They read—
“ 36. A peace officer making an arrest without warrant shall withoutunnecessary delay and subject to the provisions herein containedas to bail take or send the person arrested before a Magistrate havingjurisdiction in the case.
“ 37. No peace officer shall detain in custody a person arrestedwithout a warrant for a longer period than under all the circumstancesof the case is reasonable, and such period shall not exceed twenty-fourhours exclusive of the time necessary for the journey from the placeof arrest to the Magistrate. ”
Officers whose duty it is to enforce the law should themselves abideby the law. It is not by such conduct that respect for law is fostered.What happened later, according to the appellant and Weerasekera,makes matters worse. The appellant’s story is that no sooner than theywere taken to the Police Station the appellant’s and Weerasekera’sfinger and palm impressions were taken, a thing which the Police hadno power to do except with their consent. The appellant was next takento Inspector Egodapitiya’s room. The door was closed and he was alonewith him. Then Egodapitiya addressed him roughly and in disparagingterms, “ You fellow, are you the legal man! ”, and struck him on hisback. He was then assaulted and kicked. After the battery was over hewas asked to strip himself naked. He was then ordered to insert hisgenitals into a drawer which was slightly open. When the appellantrefused to do so Inspector Egodapitiya got hold of them and forcedthem into the drawer and pushed the drawer in. Then he ordered SergeantSally to bring a needle and while Sally held the drawer tightly Inspector
BASNAYAKE, C.J.—The Queen v. Tennakone Mudiyanselage Appuhamy 325
Hgodapitiya inserted the needle under the appellant’s finger nails. Hewas then released and next made to crawl on all fours under Egodapitiya’stable and under his chair for about an hour. At 4 p.m. he was taken to•another room and Weerasekera was brought into the room. He wasrudely questioned on a number of matters and then seized by the waistAnd severely shaken and threatened with violence. He was next orderedto remove his sarong. When he protested and said that he had not wornany underwear Egodapitiya said, “ That is what I like. It is good youhave come without the underwear to-day. Pull out your sarong.” Afterhe had carried out the order he was forced to insert his penis into the•drawer of Egodapitiya’s table which was slightly open. Egodapitiyathen kept on pressing the drawer little by little causing him excruciatingpain till he almost fainted. Thereafter he was removed to another roomwhere he remained till 7 p.m. when he was taken away in a jeep withthe appellant. They were driven to an estate about 2f miles from Chilaw.At the estate after they alighted Weerasekera was first taken away toa shed, stripped, and tortured. His legs were tied with one end of a longrope. The other end was thrown over a beam in the shed. Two PoliceOfficers held him by his waist and lifted him while the other end of therope was pulled till he was hanging by his legs. Then while he was in thatposition the mouth of a gunny bag which contained a pot of red hotcharcoal into which chilli powder had been put was held to his face tillhe cried in agony and later became unconscious. Next the appellant wastortured. He was stripped, and made to hold his ears with his crossedhands and squat and stand up about 50 times. Whenever he stopped hewas dug in his ribs or struck with a coconut stalk. Then he was made tolie on the ground and chilli powder was applied on his testicles andpenis. The appellant being a heavier man than Weerasekera, theydecided not to suspend him by his legs as the rope they had did not seemstrong enough. Instead they forced him to insert his head into a gunnybag which contained an earthen pot of burning charcoal, into which chillipowder had been put. His appeals for mercy only brought threats ofmuch worse treatment. Egodapitiya threatened, “ I shall not kill youbut what was done to John Silva will be done to you before dawn ifmoney is not given. ” Next they were driven the whole night long fromplace to place without food or drink. Weerasekera led them to the houseof his employer and to one Leon Singho’s. The appellant led the Policeto his house, the house of Daniel the goldsmith, the house of David theblacksmith, the house of Podiappuhamy, and the temple of Rev. Pragna-keerti. It was past 4 a.m. by the time they got to the last place. InspectorEgodapitiya with the accompanying Police Officers, the appellant, andWeerasekera, returned to the Chilaw Police Station at about 6 a.m. on13th July. Egodapitiya went to his quarters to sleep leaving instructionsthat the appellant and Weerasekera be produced before the Magistrate,but it was not till about 1 p.m. that they were produced before him.
The stories of Peter Perera and Wijesinghe were equally harrowing.Apart from being assaulted with fists, they each testified to the factthat they were ordered by Egodapitiya to remove their clothes, theirprotests notwithstanding, and their private parts were subjected to terri-fying acts of cruelty. In the case of Wijesinghe, Egodapitiya got him
326 BASNAYAKE, C.J.—The Queen v. Tennakone Mudiyanselage Appuhamy
to place his penis on the edge of his table and struck it with the narrowside of a cricket bat till he bled. In the case of Peter Perera he was-asked to place his testicles on the top edge of the back of a chair andEgodapitiya attempted to strike them with a baton. When he failed,owing to the fear-stricken 'victim wincing each time the blow came downhe inserted the baton between his thighs and kept on striking his testicles.The tortures inflicted on the suspects at the Police Station had got abroadand had caused terror to those who heard of them as is shown by a letterwritten to his master on 17th July 1956 by one of the discharged accusedY. H. Piyadasa in which he said : “ How can I appear when 1 have heardall that had happened to those who were arrested. ”
The condition of the appellant when he was produced in court and theprompt complaint made by his counsel to the Magistrate support hisstory. The Magistrate himself noticed that he was tired and exhaustedand he felt he was going to faint and ordered the Fiscal to give him aglass of water and gave him a chair to sit on. Against the ev idenee of the-appellant, Weerasekera, Wijesinghe and Peter Perera there is the baredenial of Egodapitiya.
Eogdapitiya admitted that he took the appellant from place to placethroughout the night of the 12th-13th July. His action is illegal and isdeserving of the severest censure. An accused who is detained in Policecustody cannot in law be forced to go from place to place and help thePolice to discover evidence against him. What aggravates the illegalconduct of Egodapitiya in especial and the Police in general in this caseis that it now appears that the Police, without producing them beforethe Magistrate on that day, as they were in law bound to do, detained themfor the express purpose of coercing them to provide evidence againstthem. We know of no other case in which such grave allegations havebeen made by so many responsible men on oath in the Supremo Courtagainst a Police Officer. All these are persons of good character and menof means and good standing in the society to which they belong. Theappellant is the manager of a large store in Nattandiva and is the trustedservant of its proprietor. He is also a half-share holder of one of theleading hotels in Chilaw. He also owns two lorries and a Car Sales-establishment. Besides these he owns a paddy land of 8 pelas and a highland of 3 J acres. His income is between Rs. 800 and Rs. 1,000 per month.
It required more than ordinary courage for the appellant and hiswitnesses to overcome their sense of shame and narrate in detail theiraccount of the humiliation and cruel treatment they were subjected to.The allegations made against Egodapitiya are grave and cannot belightly treated. They call for a full dress inquiry by an independent,tribunal. Except the appellant no one stood to gain by disclosing what,was done to them. On the contrary they ran the risk of incurring the.wrath of Egodapitiya and the other members of the Police force. The-following passage from the appellant’s evidence indicates the fear withwhich the Police were regarded:—
“ To Court: Q. In your opinion why are these two people (Daniel andDavid) alleging that you got this done ?
BASNAYAKE, C.J.—The Queen v. Teiwakom Mudiyaneelage Appuhamy 327
A. I heard the Police say that I got keys made by them.
Q.Let me repeat the question. Why in your opinion is it that-these two people say that you got the keys made ?
A. The whole world and all the people in the area knowabout Egodapitiya. When people see Mr. Egodapitiya theydose their doors and get inside and it is possible thatEgodapitiya got them to say that.
Q. What you suggest is that Egodapitiya must have coercedthese people to say this ?
A. Yes. ”
The appellant’s statement gains support from the conduct of thewitness David. When Inspector Hamid and Police Constable Siritungearrived at his house and asked him to get ready to go to the Police Stationhe took the opportunity given by their short absence, whilst they wereturning their jeep, to slink away to the house of Sir Albert Peiris and askhim for a letter to the Police. Under cross-examination he said that heobtained a letter from Sir Albert to go to the Police Station as he wasafraid of the Police and feared that he would be beaten up. That thepublic should have such a terror of the Police is a serious drawback to-the administration of justice and the sooner it is removed the better it is-for the public weal. Certainly conduct such as that attributed to Ins-pector Egodapitiya will not help to allay that fear of the Police Station.It is said that the public are slow to come forward to assist the authoritiesto bring offenders to justice. The defence evidence in this case providesthe explanation for their reluctance.
Another matter which has transpired in the course of Egodapitya’sevidence is that persons examined under section 122 of the CriminalProcedure Code are made to sign their statements contrary to the expressprohibition in that section. The circumstances of this case reveal hownecessary it is that the requirements of that section should be observed.These infractions of the law should cease.
The appellant’s evidence discloses a dangerous trend in the attitudeof those entrusted with the enforcement of the law towards those whoinvoke its aid. He states that he was subjected to this savage treatmentand falsely implicated in this case because he proclaimed that he wouldtake legal action against the Police Officers who ill-treated and assaultedhis partner Wijesinghe on the 5th of July in connexion with the sameburglary. This evidence explains why Egodapitiya asked the appellant“ Are you the legal man ? ”.
There is no gainsaying that this was a difficult case. Its investigationtherefore called not for the use of brute force but for the finesse of a keenand experienced detective who could track the offenders down withoutresorting to torture and violence. Of the sum of Rs. 32,240 ■ 02 whichwas in notes and coins, only Es. 4,100 was produced as having beenrecovered from persons to whom the appellant had given money, and
3 28
Salgado v. The Chairman, Village Committee, Udapattu
Rs. 1,110'05 from Weerasekera and those who had received money fromhim. The appellant and Weerasekera have explained how they gotthis money and what they did with it. There is no proof that it is partof the money stolen from the Union Office. We therefore make orderthat the money be returned to the persons from whom it was taken.
Before we conclude this judgment we wish to advert to a matter ofpractice. The appellant and six witnesses were called for the defence.The appellant gave evidence last. This is contrary to the practice bothhere and in England. We think that the practice of calling the accusedto give evidence before other witnesses on his behalf are called should beobserved. In this connexion we wish to cite the follow ing words of LordAlverstone with which we are in agreement:—
“ In all cases I consider it most important for the prisoner to becalled before any of his witnesses. He ought to give liis evidenoebefore he has heard the evidence and cross-examination of any witnesshe is going to call. ” (Stink Norrison, 6 Cr. App. R. 159 at 165).
Accused acquitted.