VlRAJ PERERA VS. ATTORNEY GENERAL

VlRAJ PERERA VS. ATTORNEY GENERAL

COURT OF APPEAL
SISIRA DE ABREW, J.
ABEYRATNE, J.
CA 155/2004
HC COLOMBO 1947
SEPTEMBER 1,2,3,8,2009

Penal Code - Section 356 - Section 359 - Evidence of witness rejected on a certain point - Can his evidence be accepted to establish another point? - Falsus in uno - Falsus in Omnibus - Delay in making statement? Admissibility- Ingredients to prove a charge under Section 359? Abduction by Police?

The 1st - 6th accused were charged for abducting three persons with intention of secretly and wrongfully confining them (Section 356), the 7th accused - appellant the OIC of the Police Station was charged for wrongfully keeping in confinement the said persons (Section 359). The 7th accused was convicted of the offences leveled against him. The High court held that the three persons were detained at the Police Station but did not fall into the category of arrested persons - but abducted persons. In appeal it was contended that once the evidence of a witness was rejected on a certain point his evidence cannot be accepted to establish another point and that the evidence of witness 'J' should not be accepted in view of the delay in making his statement.

 Held

(1) The maxim 'falsus in uno falsus in omnibus' is not applicable in the instant case. The maxim cannot be considered as the absolute rule and that the Judge in deciding whether or not he should apply the maxim must consider the entirety of the evidence of the witness and the entire evidence led at the trial

(2) The delay in making a statement to the Police has not shaken the credibility of the witness.

Per Sisira de Abrew, J.

"The appellant was the OIC of the Police Station. It was his duty to maintain the detention and the diet register. The appellant had admitted to witness J, that three persons would be released after recording their evidence, the appellant knew that these persons were abducted persons - failure on the part of the appellant to enter their names in the detention register or the diet register proves that he wrongfully kept them in confinement".

(3) To prove a charge under Section 359 the prosecution must prove the following ingredients:-

(i) Person against whom the offence was committed is a person who was kidnapped or abducted

(ii) The accused knew that the said person is a person who was either kidnapped or abducted

(iii) The accused concealed or kept the said person in confinement

(iv) When the accused concealed or kept the said person in confinement, he did so wrongfully.

APPEAL from the Judgment of the High Court of Colombo.

Cases referred to :-

(1) Q vs. Vellasamy - 63 NLR 265

(2) Q vs Jubis - 65 NLR 505

(3) R. P. Kendict vs. Sl Police Norton Bridge - 66 NLR 424

(4) Francis Appuhamy vs. Q - 68 NLR 437

(5) Mohamed Faiz Ballish vs. Q - 1958 A1 167

(6) Samaraweera vs. AG - 1990 - 1 Sri LR 256

Rienzi Arsakulamtne for accused - appellant.

Sarath Jayamanne DSG for AG.

Octomber 15th 2009

SISIRA DE ABREW J.

First to sixth accused in this case were charged for abducting Bandula, Padumasena, and Jayantha with the intention bf secretly and wrongfully confining them,

an offence punishable under Section 356 of the Penal Code. The 7th accused (the appellant) was charged for wrongfully keeping in confinement the said persons which is an offence punishable under Section 359 read with Section 356 of the Penal Code. After trial latto 6'h accused were acquitted of the charges but convicted the P accused (the appellant) of the offences levelled against him. He was, on each count, sentenced to a term of seven years rigorous imprisonment (RI) and to pay a fine of Rs. 5,000/- carrying a default sentence of one year RI. This appeal is against the said conviction and the sentence.

    The case for the prosecution is that the 1st to 6th accused took Bandula, Padumasena, and Jayantha into their custody and brought them to Yakalamulla Police Station and that

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