The Queen V. Hethuhamy Et Al.,

[IN THE COURT OF CRIMINAL APPEAL]

1955 Present : Gratiaen, J. (President), Weerasooriya, J., and
Fernando, J. THE QUEEN v. B. M. HETHUHAMY et al.

Appeal No. 77, with Applications 121-123, of 1955

S. C. 9-M. C. Kurunegala No. 9/10229

Evidence-Witness-Conflict between evidence on oath and an earlier statement- Verdict should then be found on the rest of the evidence-Summing-up-Misdirection-Power of Judge to interrogate witnesses.

(i) If the evidence of a witness on any particular issue is demonstrably unreliable owing to some proved or distinctly admitted inconsistency on a material point, his evidence is worthless and cannot properly be taken into account at all for the purpose of deciding that issue. It is illogical to conclude in addition (1) that, because his evidence cannot be acted upon, the opposite of what he said represented the truth, and (2) that as the opposite of what he said at the trial happens to coincide with the version given by another witness, the veracity of that other witness is thereby confirmed.

(ii) Although a presiding Judge is entitled to interrogate a witness for the prosecution, it is generally far more satisfactory to leave the conduct of the case on any vital point of controversy in the hands of the prosecuting Counsel, who must make his own decision whether or not to apply to the Judge for permission to cross-examine as an adverse witness a man whom he has advisedly called.

APPEAL, with applications for leave to appeal, against certain convictions in a trial before the Supreme Court.

G. E. Chitty, with Malcolm Perera, for the 1st accused-appellant.

M. D. Jesuratnam, for the 2nd accused-appellant.

V. S. A. Pullenayegum, Crown Counsel, for the Crown.

Cur. adv. vult.

October 6, 1955. GRATIAEN, J.-

The appellants, three in number, were convicted at the Kurunegala Assizes of the following offences alleged to have been committed by them in the village of Galwewa on the night of 14th June, 1954 :

(1) being, together with three others unknown to the prosecution, members of an unlawful assembly the common object of which was to commit robbery of cash and jewellery belonging to M. D. Charles Appuhamy, and also to cause hurt to him ;

(2) rioting ;

(3) robbery of cash and jewellery belonging to the said Charles Appuhamy in prosecution of their common object;

(4) causing simple hurt to the said Charles Appuhamy in prosecution of their common object.

These offences had unquestionably been committed by five or more persons some at least of whom Charles Appuhamy had been unable to identify.

The only disputed issue at the trial was whether the purported identification of all or any of the appellants by Charles Appuhamy had been established beyond reasonable doubt. At the conclusion of the argument we quashed the convictions and stated that the grounds of our decision would be pronounced later.

Charles Appuhamy owned a tea boutique in which he resided alone except for his infant child, his wife having previously deserted him. At about 7.30 p.m. on the day in question the front portion of the boutique had been closed, and he was about to put the child to sleep when six persons entered the boutique through the back door which was still open : they seized him and tied him up with a rope and one of them stabbed him once, but not seriously, on the fleshy part of each leg ; having proceeded to remove all his money and jewellery from a cupboard in an adjoining room, the intruders left the boutique with the loot. Shortly afterwards, Charles Appuhamy released himself and, with his child in his arms, he rushed out of the boutique appealing for help. Several neighbours including the prosecution witnesses Ukku Banda and Mudalihamy arrived on the scene. Mudalihamy went almost immediately to report the incident to the Village Headman of Dorabawila who lived some distance away. The Headman reached the scene of the burglary at about 10.45

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