Law of Evidence - Sec. 154 of the Evidence Ordinance -adverse witness - evaluation - witness was remanded by the Judge - fair trial

Law of Evidence - Sec. 154 of the Evidence Ordinance -adverse witness - evaluation - witness was  remanded by the Judge - fair trial

 "Eliciting evidence from witnesses by remanding affects fair trial. In this case the trial judge had abused his power when he remanded the witness. Remanding a witness whenever it appeared to the court that he is not desirous of speaking the 'truth creates such an adverse impact on the integrity of the proceedings that the accused's conviction could no longer be regarded as (morally) safe. It is difficult to think of even a hypothetical-illustration."

IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF 

SRI LANKA

Ranasinghe Arachchilage Edmun Perera

v. 

Democratic Socialist Republic of Sri Lanka

CA 267/06 

Before   :-    Rohini Marasinghe, J. 

                    Deepali Wijesundera, J.

Decided on :-  28.03.2013

Rohini Marasinghe, J.

The accused/appellant was convicted for the charge of attempted murder under section 300 of the Penal Code. The prosecution alleged that the accused/appellant had attempted to strangulate and drown one Nirosha Dilrukshi on 26th October 1997. The facts of this case were that on 25th of October 1997, the husband of the victim and another friend by the name of Wimale had gone to get an auspicious time to build a house for them on the land belonging to the accused/appellant. The victim, her husband, and Wimale were living in Pannipitiya in Kottowa with the appellant in a house belonging to the appellant during the time of the alleged offence. The person named as Wimale was from Urubokka, which is a village beyond Matara. The victim's husband was one Ajantha Kumara. The said Ajantha Kumara and Wimale were to return the same evening. As they had not returned, the victim and the accused/appellant had decided to go in search of them on the next day. On 26th of October around 6 a.m they had left Pannipitiya and had got down just before Urubokka town. 

The Prosecution case was that the appellant had an illicit relationship with Ajantha who was the victim's husband. Therefore, the appellant had desired to get rid of the victim. Therefore, around 2.30 -3.00, when they were walking to go to the house of Wimale, the appellant had threatened the victim and asked her to leave the husband by divorcing him. Under that threat the appellant had got the victim to write a letter to the husband that she was leaving the house on her own wish. After the letter was written the appellant had attempted to strangulate her by tying a handkerchief around the neck and had squeezed the neck and had pushed her to the river. After that the appellant had left the victim and come back to Pannipitiya on the same day. The husband of the victim Ajantha Kumara also had come to Pannipitiya around 2.30 - 3.00 and at that time Ajantha Kumata had found the appellant in the house and the wife was not in the house and wife's clothes were also not in the house. A letter was also in the  house which said that she was leaving the house. The appellant had said that the wife may have gone somewhere as she had got up early that day. Next day he had got to know from a paper article that his wife was in hospital, in Mawarawila. He had gone to Mawarawila and met the wife who had told him that the appellant had tried to kill her by hitting her with a stone and drowning her. Upon being discharged from hospital, strangely the wife was not released to the husband. She was handed over to Wimale under probation care. The reason for this is not known, as victim and Ajantha Kumar were legally married at that time. 

The sole witness against the appellant was the victim who was the witness no 1, for the prosecution. She was called to the witness box on 24-08-2004. She was asked about the incident. She said that she felt that the appellant had pushed her to the river only because the appellant was walking behind her at that time. In fact, she said, that the appellant had not pushed her to the river. She said that she may have slipped and fallen into the river. As it appeared that she was resiling from her earlier position, the prosecution had made an application under section 154 of the Evidence Ordinance. At the same time the prosecution had mentioned that they would make an application to treat the said witness as an 'unfavourable' witness if and when necessary (Page 60 of the brief).

That application was allowed. The section 154 expressly vests the courts with discretion as to whether to permit the person calling the witness to put any questions to him which might be put in cross examination. In English Law there is a distinction between a 'hostile' or 'adverse' and 'unfavourable' witness. An 'unfavourable 'witness is one who is called by a parry to prove a particular fact in issue or relevant to the issue who fails to prove that fact. A 'hostile' witness is one who is not desirous of telling the truth at the instance of the party calling him. (Stephen Digest 12th Ed. 147, Cross and Tapper 6 Ed. 270, Alexander v Gibson (1881) 2 Camp. 556 also quoted in E.R.S.R. Coomaraswamy Law of Evidence Vol 11 book 2 page 812) At English Common law a party was allowed to contradict his own witness by calling other evidence if he was unfavourable. In the case of a hostile witness the judge in his discretion may allow the examination in chief to be conducted in the manner of cross examination to the extent to which he (judge) considers it necessary for the purpose of doing justice (R. v. Pitt (1983) Q.B. 25, (1982) 3 A.E.R. 63).  The word 'adverse' is mentioned in section 3 of the Criminal Procedure Act 1865 of England. In R v Thompson (1977) 64 Cr. App.R. 96 at 99) it was argued in appeal that section 3 of the Criminal Procedure Act did not apply as the witness did not contradict the previous statement but merely refused to speak.(Under section 3 a witness can be contradicted with other evidence or by leave of judge, prove that he had made at other times a statement inconsistent with his present testimony) In dismissing the appeal the Court of Appeal held that section 3 of the Act had not in any way remove the basic common law right of the judge in his discretion to allow cross examination when a witness is proved hostile. 

The section 154 does not use any of the terms as 'hostile' adverse' or 'unfavourable'. In dealing with the position in Sri Lanka as against the English Law in regard to hostile witnesses, in King v Thegis 5 , N.L.R. 107 at 113, Moncrief, J. pointed out a departure from the English Law he said; 

'it may be that the evidence of the party or his witness is very adverse to his own contention, and possibly it may be in favour of somebody else, or even to the other party in the suit. But it is therefore not excluded as evidence, and questions may be put, and the answers of an adverse character elicited by them are admissible. It is true that in England a party may not cross examine his own witness unless hostile, but section 154 of our Evidence ordinance has released him from that restriction.'  

These decisions though show a departure from the English Law, it must be stated that the Common Law right of the judge to allow cross examination remained notwithstanding the statutory intervention. But that discretion was not a wide one as Phipson submits (Phipson on Evidence 15th edition Para 11-57) that discretion should not be extended too far. (Also see Clarke v Saffrew Best C.J. (1824) Ry &M 126, Bastian v Crew (1824) Ry & M 127 Lord Abbot C.J.) 

In contrary to the English Law, the section 154 gives the court in appropriate circumstances an unqualified and untrammelled discretion to permit the person calling the witness to put any questions to him which might be put in cross examination by the adverse party. But that discretion must be judiciously and properly exercised in the interest of justice. The counsel for the State before us stated that section 154 does not state that witness could be cross examined with permission of court. It is conceded that the term 'cross examination' is not mentioned in the section as cross examination is done by the opposite party. But the party calling him can put any questions to him which might be put in cross examination. 

There are two views on the question of the evidentiary value of the evidence of a witness who had been treated under as hostile in other systems or who had been subjected to cross examination under section 154 of our Ordinance. According to one view the evidence is of some value and is not to be disregarded altogether. According to other view, the evidence is of no value and cannot be, relied on for the party calling the witness and / or for the other party. In Sri Lanka also both views appear to have prevailed. In the King v N.A. Fernando 46 N.L.R. 254, it was held that such evidence should not be disregarded in toto, and that court must leave it to the jury to decide it's worth. Some of the Indian decisions mentioned below have taken the view that it is a mistake to brush aside the evidence of a hostile witness completely. They hold the view that the court can decide which part of the evidence impresses it as true and which does not. The evidence must be read as a whole in order to ascertain whether any weight should be attached to it. (See State v Nagindra Pratap Singh A.I.R. (1953) Pepsu 97; Shridar Mahadev v Emperor  A.I.R. (1935) Born. 36. In re Saibana Tippanna A.I.R. Mys 248 at 252 (1966 cr.l.j 1155) The maxim Falsus in uno, Folsus in omnibus does not apply to cases like this.(Emperor v Johanger Cama A.I.R. (1927) Born. 501) The contrary view was held in the following cases, which held that such evidence was not to be regarded as creditworthy and reliable and hence should be disregarded totally. (See, R v Harris (1927) 20 Cr. A.R. 144, R v White (1924) 17 Cr. A.R. 60. Mohobul Khan v Emperor A.I.R. (1928) Cal 690.) 

The Indian Supreme Court had stated that if the whole of the testimony is impugned, and in the process stands squarely and totally discredited, the judge should as a matter of prudence disregard it in toto. (Sat Paul Delhi Administration.A.I.R..(1976).S.C-294).

In Dahanayake v Kannangara (72 C.L.W. 62 at 65) T.S.Fernando J. stated that 

if a witness was disbelieved by the trial judge it would be wholly unreal to utilise against such party the evidence so given merely because such evidence has been produced or led on his behalf. And, in the case of Douglas Tillakawardean v The Republic (C.A. 9/80 unreported H.Ct Col. 524/77- Decided on 8.7.81.), the sole eye witness contradicted with regard to his earlier statement on the issue of the identity of the accused. The witness was cross examined under section 154. Allowing the appeal the court held that the witness had been discredited on vital matters and that the verdict against the accused on that evidence was unreasonable.

In R v Birch (1924) 18 Cr.A.R. 26 it was stated that, even a sworn deposition of a witness, who is allowed to be treated as hostile at the trial is not evidence per se and it cannot be considered by the jury.

Further, in dealing with such evidence the Indian Supreme court had held that while it is true that merely because a witness is declared hostile, his evidence cannot be rejected on that ground alone. It is equally well settled that once the prosecution declares a witness hostile, it clearly exhibits its intention of not relying on his evidence, and, therefore, his evidence cannot be treated to be the version of the prosecution. (Keshharam v State of Assam A.I.R. (1978) 1096)

In this case sole witness for the prosecution was the victim herself. Therefore, she was a vital witness for the prosecution. The moment the sole witness went back on her earlier deposition the prosecution should have failed. It was unfair for the court to have forced to have required her to testify by remanding her. The court not only remanded her until her own evidence was over. The court continued to keep her on remand until the next witness who was her husband had concluded the evidence. The remand of this witness clearly had an adverse impact on the integrity of the proceedings. The manner in which the court had proceeded with the evidence of the sole witness has become a source of unfairness and an obstruction to discovering the truth and cannot be regarded is a decision which is judiciously and properly exercised. If the court was informed that the appellant had threatened the witness the better course was to remand the appellant. Eliciting evidence from witnesses by remanding affects fair trial. In this case the trial judge had abused his power when he remanded the witness. Remanding a witness whenever it appeared to the court that he is not desirous of speaking the 'truth creates such an adverse impact on the integrity of the proceedings that the accused's conviction could no longer be regarded as (morally) safe. It is difficult to think of even a hypothetical -illustration. In this case I go further, the witness continued to be on remand even after she had concluded her own testimony. Therefore, the next witness was also under a threat of punishment similar to the earlier witness, should he refuse to corporate the prosecution. These cast serious aspersions on the court that had demanded the witnesses that they cooperate with the prosecution; it is clearly and undoubtedly not in the interest of justice to follow such a course. 

Additionally the time line of events suggested by the prosecution was humanely impossible. The offence had taken place in Urubokke beyond Matara. The time suggested by court was 2.30 - 3.00 on the 26th of October. But, according to Ajantha Kumara, when he returned home around the same time he found the appellant at home. The Prosecution did not explain how the appellant could be in both places at about the same time. The learned trial judge had placed reliance on the evidence of one Chamila Nadishani who testified having seen the appellant at the place of incident. She was asked to identify the person who fitted the description of the person she saw at that time. After much persuasion by the prosecution she pointed at the appellant who was in the dock.(pages 171-172 of the brief) It is not a proper identification that could be accepted as evidence by any standards. 

In view of all these infirmities allow the appeal and acquit the accused. 


                                                                                                                                                    I Agree. 

                                                                                                                              Deepeli Wijesundera J.
                                                                                                                  Judge of the Court of Appeal