Legal Services and Laws of Sri Lanka
SLR - 1985 Vol.1, Page No - 1
THE ATTORNEY- GENERAL
WIMALARATNE, J., RANASINGHE, J. AND RODRIGO, J.
S.C. 2/84 - H.C. COLOMBO 692/79.
OCTOBER 3, 1984.
Abortion - Death caused by septic abortion - S. 305 of the Penal Code - Dying deposition - Perusal and useofitbyJudge
when not produced before him in evidence - S. 110(4) of the Code of Criminal Procedure Act - Witness refreshingmemoryfrom
notes - Conflicting accounts of statementofdeceased-Sections32and33oftheEvidenceOrdinance-Needfor
corroboration - Corroboration coming circuitously from deceased herself and not fromindependentquarter-Useoffalse
denial by accused as corroboration - Miscarriage of justice- Code ofCriminalProcedureAct,sections334and335and
Article 138(1) of the Constitution.
The accused-appellant, a lady Ayurvedic physician was indicted before the High Court with havingcausedthedeathofone
Merlin Ranasinghe a woman with child by inserting two pieces of stickinto her vagina on. 22.4.1973 with intent tocause
a miscarriage and thereby with committing an offence punishable under s. 305 of the Penal Code. She was triedbytheJudge
without a jury, found guilty and sentenced to two years' imprisonment.
The prosecution version was that on 22.4.1973 the deceased had attended the appellant's dispensary andwantedtreatmentto
abort the child she was carrying. The appellant had inserted two pieces of stickintohervaginaandalsoputinsome
medicine. She had later taken ill and she went to the appellant'sdispensaryagainon23.4.1973andwantedthesticks
removed. But the appellant's treatment not availing the deceased had entered the Castle Street Hospitalwhereshediedon
The main contention of the appellant was thattheprosecutionhadfailedtodischargeitsburdenofprovingbeyond
reasonable doubt that the appellant was the person who inserted the two pieces of stick into the deceased's vagina.Onthis
point the prosecution relied mainly on the evidence of Dr. (Mrs.) Was. A copy of the statement of thedeceasedasrecorded
by Dr. Waas had been produced as P 1 in the Magistrate's Court but not in the High Court.ThisstatementP1thoughnot
produced in evidence before him, was perused by the High Court Judgeduringthetrialbeforehim.Theappellantwhile
admitting the visit of the deceased to her dispensary on 23.4.1973 denied any such visit on 22.4.1973.
(1) Section 110 (4) of the Code of Criminal Procedure Act No. 15 of 1979 empowers the High Court Judgetouseastatement
made at a non-summary proceeding to aid him at the trial but it cannot be used as evidence in the case. Under section33of
the Evidence Ordinance, evidence given by a witness in a judicial proceeding can be proved at the later stageofthetrial
in accordance with the provisions of the laws of evidence and criminal procedure. But here the High, Court Judge perusedthe
evidence given at the non-summary inquiry of the deceased's statement to Dr. Waas and used material contained in itforthe
purpose of his judgment without having taken any steps to have such material placed before. him in evidence.Thisprocedure
is illegal and cannot be justified.
(2) The deceased had made conflicting statements about how she fell ill: There were - conflicting versions of thedeceased's
statement. It would not have been therefore safe to act on the evidence of Dr. Was without corroboration. Suchcorroboration
must come from an independent source and not circuitously, as here, from the deceased herself.
A false denial can amount to corroboration in certain circumstances. For a false denialtoamounttocorroborationofa
witness' evidence such false denial must relate to a vital issue whichisindisputeinthecase.Thedenialofthe
appellant that the deceased visited her in her dispensary on 22.4.1973 cannot be regarded as corroboration.
The statement of the deceased to Dr(Mrs.) Waas stands, in law, alone and uncorroborated' in regard to the identityofthe
offender. It must not be acted on because of the conflicting versions
(3) The question of no "substantial miscarriage of justice" under section 334(1) of the Code of CriminalProcedureActand
Article 138(1) of the Constitution does not aris for consideration. Section334oftheCodeofCriminalProcedureAct
applies only to trials before a judge and jury. Appeals from a verdict of the High Court at a trial without ajurymustbe
determined according to section 335 of the Code of Criminal Procedure Act.
Cases referred to:
(1) The King v. Asirvadan Nadar (1950) ,51 NLR 322, 325.
(2) Mendis v. Paramaswami (1958) 62 NLR 302, 305.
(3) B. F. Lewis Fernando v. The Queen (1952) 54 NLR 274, 277, 278.
(4) The Queen v. Anthonypillai (1965) 69 NLR 34, 38.
(5) The King v. Atukorale (1948) 50 NLR 256.
(6) The Queen v. Julis (1963) 65 NLR 505, 526
(7) Karunaratne v. The Queen (1966) 68 NLR 257, 259.
(8) Dole v. Romanis Appu (1939) 40 NLR 449.
(9) Tennekoon v. Tennekoon 78 NLR 13.
(10) Warawita v. Jane Nona (1954) 58 NLR 111.
(11) Dharmadasa v. Gunawathy (1957) 59 NLR 501.
(12) Somasena v. Kusumawathie (1958) 60 NLR 355.
(13) Indrawathie Kumarihamy v. Purijjala (1970) 74 NLR 430.
(14) J. F. Throne and Others (1978) 66 Cr. Ap. R60.6.
(15) The King v. Fernando (1930) 32 NLR 250, 253.
(16) Martin Fernando v. The Inspector of Police, Minuwangode (1945) 46 NLR 210.
(17) The King v. Guneratne 14 C.L.Rec. 144.
(18) Sangarakkita Thero et al v. Buddharakkita Thero (1949) 39 CLW 86.
(19) Perera v. Naganathan (1964) 66 NLR 438.
(20) Hamid v. Karthan (1917) 4 CWR 363.
(21) The King v. Soysa (1924) 26 NLR 324.
(22) R. v. Cooray (1926) 28 NLR 74.
(23) Inspector of Police, Gampaha v. Perera (1931) 33 NLR 69.
(24) Paulis Appu v. Don Davith (1930) 32 NLR 335.
(25) Bartholomeusz v. Velu (1931) 33 NLR 161.
(26) S.I.P. v. Thalagahagoda 13 CLRec 211.
(27) Kitnapulle v. Christoffelz (1948) 49 NLR 401.
(28) Reg v. Arthur Perera (1956) 57 NLR 313, 326.
APPEAL from judgment of the Court of Appeal.
Dr. Colvin R. de Silva with Miss. Saumya de Silva for accused-appellant.
D. P. Kumarasinghe, S.S.C. for respondent.
October 31, 1984.
On 23.4:73 at 4.05 p.m. Merlin Ranasinghe, the deceased, was admitted to the N.O.H.WardoftheCastleStreetHospital,
Colombo. Upon admission Dr. (Miss) Panchchalingam who was in charge of the said ward, had, with the assistance ofDr.Neela
Ranjithraja and Dr. (Mrs.) Waas, examined the deceased, at about 4.30 p.m., and had found the deceasedtobepregnantand
suffering from septic abortion. Parts of a foetus had also been removed from the deceased by Dr. (Miss)Panchchalingam.Dr.
Ranjithraja had then questioned the deceased. The deceased had, in answer to Dr. Ranjithraja, told Dr. Ranjithrajathatshe
had started to bleed as a result of a fall near the well. No reference had been made in that reply to an abortion.
Thereafter on the following day, 24.4.73, as the deceased's condition had taken a turn to theworse,Dr.Ranjithrajahad.
about 10 p.m., directed Dr. (Mrs.) Waas to record the deceased's statement. Dr. (Mrs.) Waas had thenproceededtoquestion
the deceased in the presence of Dr. Ranjithrajaand the deceased had made an oral statement to thisdoctor.Thestatement
so made is, briefly : that, on 22.4.73, she had gone to the accused "in order to get an abortion done":thattheaccused
had'" introduced 2 sticks into her vagina", and had also given her some medicine to be taken orally : that she wasalso
advised to see the accused on the following day :. thatthesameeveningshestartedtobleedandalsodevelopeda
temperature : that, on the morning of the following day the 23rd, as she was feelingfaintishandalsofoundhervision
blurred, she wentback to the accused and requested her to pull-out the "two sticks" which had beeninsertedtheprevious
day.: that she is not sure whether they were pulled out that although the accused asked her not to go totheCastleStreet
Hospital, she decided to seek treatment from the Hospital.
After Dr. (Mrs.) Waas had recorded the said statement from the deceased, the hospital authorities had contacted the'Borella
Police Station. P.C. 5256 Abeyratne, who was then attached to the said Police Station, had then proceeded to the saidCastle
Street Hospital, and he too had, later that same-night, recorded a statement (a copy of which was markedP2atthetrial)
from the deceased. Briefly, the deceased had, in the said statement, stated : that she went to seetheaccusedon22.4.73
with her five year old son : that, when she told the accused of her intention, the accused had "inserted some medicine"into
her vagina : that, after she went home, she began to bleed from her vagina : that on thefollowingday23.4.73,shewent
again to see the accused .- that she went on that occasion with her husband : that, although theaccusedassuredherthat
she would be cured, she nevertheless proceeded to the Castle Street Hospital and had herself admitted tothesaidhospital
the same evening.
The deceased's condition had thereafter deteriorated and she passed away in the early hours of the 26th April 1973.Apost-
mortem examination on the body of the deceased had been held by Dr.Sarveswaran.Acopyofthepost-mortemreportwas
produced at the trial marked P1. The cause of death has been set out as "septicaemia following septic abortion".
The accused appellant - a registered ayurvedic-practitioner of eleven years standing andpractisingat.Etul-Kotte,along
with her husband, himself a registered Ayurvedic-Practitioner - was thereupon indicted before the HighCourt,Colombowith
having caused the death of the deceased : that she did on 22.4.73, with intent to cause a miscarriage, insertintothe
vagina of Merlin Ranasinghe, a woman with child,` and thereby caused her death, an offence punishable under sec. 305ofthe
The learned judge of the High Court, after trial without a jury, convicted the. accused-appellant ofthesaidcharge,and
imposed a sentence of 2 years' imprisonment - which said imprisonment, the , Court of Appeal has construed tobesimplein
The accused-appellant's appeal to the Court of Appeal having failed, the accused-appellant has now come before this Court.
The principal submission made to this Court by learned Counsel appearing for the accused-appellant is: thattheprosecution
has failed to discharge the burden resting on it to prove that it was the accused-appellant who committedthesaidoffence
on the deceased that the prosecution has failed to prove beyond reasonabledoubtthatitwastheaccused-appellantwho
inserted the "two sticks" (whether they be "" what is alleged to havebeenusedbytheaccused-appellanthasbeen
variously described in the indictment and in the proceedings) into the deceased'svaginaandcausedthesepticabortion
which brought about the death of the deceased.
The principal item of evidence relied on by the prosecution to prove the identity of theoffenderwhocommittedthesaid
offence is the aforesaid oral statement said to have been made by the deceased toDr.(Mrs.)WaasattheCastleStreet
Hospital shortly after 10 p.m. on the night of the 24th April 1973. The said statement was relied on asadyingdeposition
which is admissible under sec. 32 (1) of the Evidence Ordinance.
The statement of the deceased, which is said to have been so madetoDr.(Mrs.)Waas,wouldappear,accordingtothe
evidence, to have been contemporaneously recorded by Dr. Waas. The judgment of theCourtofAppealalsoreferstosuch
statement having been "recorded" by Dr. Waas. The record said to have been so made by Dr. (Mrs.) Waas of theoralstatement
which she says, was made to her by the deceased, has itself not been produced inevidenceatthetrialbeforetheHigh
Court. The evidence, which is available in the record of the proceedings before the High Court, is only the oral evidenceof
Dr. (Mrs.) Waas of what, according to her, the deceased told her that night in the hospital. The judgmentoftheCourtof
Appeal discloses that, before the Court of Appeal, learned Counsel for the accused-.appellant had "severelycriticised"the
manner in which the said statement had been proved at the trial. The Court of Appeal had taken the view that Dr. (Mrs.)Waas
had, at the time she gave evidence, been making use of some notes which were in her possession, andthat,inviewofthe
provisions of sec. 159 (1) and (3) of the Evidence Ordinance, this witness could have refreshed her memoryfromacopyof
the statement so recorded by her, and that thefact that this witness was so permitted by the trial judge to use acopyof
the statement recorded by her, leads the court to assume that such permission had been granted because thetrialcourthad
been satisfied that there was sufficient reason for the non-production of the original record,.: This, as already statedwas
only an assumption by the Court of Appeal. There is no express order made by thelearnedtrialjudgeinregardtothis
matter and there is nothing in the proceedings= themselves of the trial Court to indicate that the learned trial judgehad
expressly addressed his mind in regard to the requirements of the' provisions of Sec. 159 of theEvidenceOrdinancebefore
Dr. (Mrs.) Waas was permitted to refresh her memory from the document, which she had, in order to give oral evidence ofwhat
she says the deceased told her on the night in question. It however, seems to me, in view of the submissions madetousat
the hearing before us of the procedure adopted by the learned trialjudge-andwhichsaid.procedurehasbeenfound
acceptable by the Court of Appeal as well (to which reference. will be made later on in this judgment) -ofperusingonhis
ownthe evidence given by this witness in the course of the non-summary inquiry held beforetheMagistrate'sCourt,that
the learned trial judge, who so perused her evidence given before the learned Magistrate, wouldhavebecomeawareofthe
existence of the document which had, at that inquiry, been produced as P 1. P 1 has been described as a"certifiedcopyof
the patient's statement". In her evidence at the trial Dr. (Mrs.) Waas has stated that :? "at the Magistrate's Court,before
I gave evidence I examined the Bed-head Ticket" : that she "gotthisreportafterexaminingtheBed-headTicket".The
"report" , so referred to could be the document from which she was refreshing hermemorywhenshegaveevidenceatthe
trial. The document produced by Dr. (Mrs.) Waas as P 1 in her evidence- which as stated' earlierhasbeenperusedbythe
learned trial judge - in the Magistrate's Court has not been marked in evidence by the prosecution at the trial, eventhough
its contents have been sought to be led in evidence through Dr. (Mrs.) Waas as part of the prosecution case.Noexplanation
seems to have been given at the trial by the prosecution for the non-production of either the said document, or oftheBed-
head Ticket referred to. by Dr. (Mrs.) Waas. Whatever be the document which Dr. (Mrs.) Waas had in herpossessionandfrom
which she refreshed her memory when she was in the witness-box at the trial, there seems to be considerable roomfordoubt,
as submitted by learned Counsel for the accused-appellant, whether that document was the record itself or even a copy ofthe
record, she says, she made on the night in question itself contemporaneously with: what the deceased issaidtohavetold
her, in view of a very significant difference in regard to a matter which the prosecution itself has thought tobeofsuch
importance as to require a reference to it in the indictment itself, namely the means adoptedbytheaccused-appellantto
cause the alleged abortion. Dr. (Mrs.) Waas, in her evidence - given after referring to the documentshehad-refersto
what the deceased told' her was used as This reference-was madebythewitnessfourtimesinthecourseofher
evidence. In the document P 1 produced by this witness in her evidence -perusedbythelearnedtrialjudge-inthe
Magistrate's Court, what is said to have been inserted has been referred to as Be that as it may the resultingposition
is that the document which came into existence contemporaneously with the oral statement made by the deceased, has not:been
produced at the trial.. The said document would be the best evidence of the words used by the deceasedherself.Therewere
no good grounds urged forthenon-productionofthe'saidoriginaldocument.Onthecontrary,allthefactsand
circumstances, which emerged at the trial, point unmistakably to the' said document having been available forproductionin
evidence at the trial. The necessity for the ipsissima verba used by a deceased in a dying declarationhasbeenemphasised
by the then Supreme Court of this island in several decisions : The King v. Asirvadan Nadar (1), Mendis v. Paramaswami (2).
Apart from the aforementioned statement made-to Dr. (Mrs.) Waas the deceased, as set our earlier, hadalsomadetwoother
statements -one before and the other after the'saidstatement-inwhichtoo'shehadpurportedto,describethe
circumstances which resulted in her death. The earlier one, also made to a doctor - though amale-whoattendedonher
after admission' to the same hospital, is embodied in the document D 1 produced by the defence.Thelateroneisinthe
document, whichaccording to the proceedings of the trial, was marked P2by`learned-"State`Counselinhiscross-
examination of the police-constable who had recorded it and who was called to testify at' the trial notbytheprosecution
but by the defence. Both D 1 on the one hand and P 2 on the other hand comeintoconflictnotonlyinterse,butalso
separately with the statement that the deceased is stated to have made to Dr. (Mrs.)Waasinregardtohowexactlythe
abortion in question was caused. The conflict between P 1 and 'D 2 with the statement to Dr. (Mrs.)Waas,whichalonehas
been relied on by the prosecution, is in regard to the manner in which the offence has, according to the prosecutionasset
out in the indictment, been committed. The Court of Appeal was of opinion that the manner of the commissionoftheoffence
as put forward by the prosecution is of considerable importance : that it was the duty of the trialjudgetofindwhether
the offence has been committed by the accused in the manner set out in the indictment : that the trialjudgehasseriously
misdirected himself on this particular matter. Although the Court of Appeal took the view that the evidentiary valueofDr.
Ranjithraja's deposition, embodied in D1, is weakened due to certain circumstancesspecifiedbytheCourtofAppeal,-
namely because it stands alone and is not supported by Dr. (Mrs.) Waas,andbecausethedefencehasfailedtoputto
Professor Fernando, the chief medical witness for the prosecution at the trial, a viewexpressedbyDr.Ranjithraja,the
Court of Appeal, however, was also of the view that the contradiction, as between D 2 and thedeceased'sstatementtoDr.
(Mrs.) Waas "remains". Although Dr. Ranjithraja was not called by the prosecution atthetrial,hewasneverthelessput
forward at the non-summary inquiry by the prosecution as a witness for the prosecution and tendered to the defence for cross-
examination and . thereafter re-examined on behalf of the prosecution. At no stage had his evidence beenchallengedinthe
Magistrate's Court by the prosecution as being unreliable or unacceptable. He was then put forward as a witnessoftruth
and the defence is entitled to have his deposition, contained in D 1, which islegallyadmissibleandhasbeenproperly
proved, considered as truthful evidence. The matter, on which there was a conflict between the deceased'sstatementtoDr.
(Mrs.) Waas and each of the other statements D 1 and P2, was thus a matter of importance. However "human andunderstandable"
be the explanations preferred by learned: Counsel for theprosecutioninrespectoftheaforesaidvariations`inthe
respective statements made by the deceased, yet, as the Court of Appeal stated "the contradiction remains". It mustalsobe
noted-that even the-trial judge seems. to have acted upon Dr. (Mrs.) Waas's evidence given at the trial,inregardtothe
contents of the deceased's statement to her, only after - whatever be the validity of such aprocedure-aperusalofthe
evidence given by her at' the earlier stage of these proceedings in the Magistrate's Court.
It must also be noted that, in answer to a question from the prosecution witnessPearlePerera,whohadaccompaniedthe
deceased to the accused-appellant's dispensary on 23.4.73 at the request of the deceased herself, as to what her ailmentwas
the deceased had told Pearle Perera only that she, the deceased, "had shivered and developedatemperature".Noreference
had been made to the accused-appellant having being in any way responsible for her condition.
In the result the statement said to have been made by the deceased to Dr. (Mrs.) Waas and relied on bytheprosecutionwas
such that special care was needed in considering whether the said statement should be accepted astrueandaccurate.The,
said statement was such that it was not safe to act upon it unless it was corroborated - vide : The King v.AsirvadanNadar
(supra) 8. F. Lewis Fernando v. The Queen (3)The Queen v. Anthonypillai (4).
A consideration of the judgments of the Court of Appeal and the High Courtrevealsthatbothcourtsdidalsothinkit
necessary to consider the question of how far there was corroboration of the said statement of the deceased.
The Court of Appeal has proceeded on the basis that, whilst the said statement made to Dr.(Mrs.)Waassuppliestheonly
direct' evidence to connect the accused-appellant with the commission of the said offence, corroborationofthedeceased's
allegation against the accused-appellant herself is provided by the evidence of the prosecution witnessPearlePerera,and
by a false denial made by the accused-appellant herself of the deceased's allegation that she met theaccused-appellantfor
the first time in this connection on 22.4.73 at the accused-appellant's dispensary in Etul-kotte.
The item of evidence in the testimony of the witness Pearle Perera, which is'reliedonascorroboratingthedeceased's
evidence incriminating the accused-appellant, is Pearle Perera's statement of adiscussionbetweenthedeceasedandher
husband after they had set out from the deceased's home, on the afternoon of the 23rd ofApril1973 togotohospital.
Pearle Perera did in her evidence say that on their way to hospital, a discussion took place betweenthedeceasedandher
husband as to where the deceased should go and that in the course of such discussion, the deceased toldherhusband"
and that there upon they first proceed to the accused- appellant's dispensary, and that in wasonlythereafterthatthe
deceased enter the castle street hospital on 23.4.73. The court of Appeal has taken the view thatthisparticularitemof
evidences admissible under the second limb of sec. 32(1) of the evidence Ordinance as it relates to the to thecircumstances
of the transaction which resulted in her [the deceased's] death, and thatitalsocorroboratesnotonlythedeceased's
evidence of her first visit to the accused-appellant's dispensary on the previous day, 22.4.73, but also of what the accused-
appellant did on that occasion. In my opinion, however, this item of evidence in the testimony of pearle Perera does not,in
law, amount to such corroboration, for although this item of evidence is placedbeforecourtthroughthewitnesspearle
Perera it is in truth and in fact only a statement made by the deceased whoisherselfthewitnesswhorequirestobe
corroborated. It is not an item of evidence extraneous to the deceased herself.Itdoesnotrelatetoanindependent
circumstances which a person other than the deceased herself is in a position directly to testify to. It isnotindependent
testimony and " it lacks the essential quality of coming from an independent quarter". It is evidence which has"proceeded
circuitously" from the deceased herself. Although the said item of evidence may be takentoshowtheconsistencyofthe
deceased's evidence given at the trial, yet, it "cannot be regarded as corroboration in the proper sense in which thatworld
is understood in cases of this kind and it is a misdirection to refer it as such" - vide : The king v. Atukorale(5) The
Queen v. Julis (6) Karunaratne v. The Queen (7) Dole v. Romanis Appu (8). In this connection reference has to be madeto
the decision of the then Supreme Court in the case Tennekoon v .Tennekoon (9) where (Malcolm) Perera, J. has takentheview
that in an application for maintenance a statement made by the applicant-mother herself, in regard to thepaternityofthe
child, would be admissible to corroborate the applicant-mother's evidence, it such statement satisfiedtherequirementsof
sec. 157 Evidence Ordinance. It has, however, to be observed that, although Perera, J. did taketheviewthataprevious
statement made by the applicant herself, whose evidence had to be corroborated, could be regarded ascorroborativeevidence
(and so also a false statement of the defendant), yet Perera, J. Proceeded to conclude at page 24,that"quiteapartfrom
the statement of the applicant to her mother . . . . ., I think the unimpeachable evidence of Dingiri Banda to whichIhave
already referred, more than am ply corroborates' the applicant's evidence on material particulars". What was decisive-seems
to have been the "unimpeachable" evidence from an independent quarter. Furthermore, the earlierdecisionsofthe earlier
Supreme Court '"The King v. Atukorale (5). Queen v. Julis (6) and Karunaratne v. The Queen' (7) - referred tobymeabove,
do not seem to have' been cited to the Bench of two judges which heard the Tennekoon's case (supra . It seem to me that-the
said view taken by Perera, J.-in regard to a previous statement by the very witness, whoneedstobecorroborated,being
accepted as corroboration -must give Way to the other authoritative decisions referred to by me.
The evidence of Pearle Perera that the deceased did in fact go to the accused-appellant'sdispensaryon23.4.73doesnot
amount to corroboration of the deceased's evidence of her ('deceased's) visit to the accused-appellant on thepreviousday,
22.433` and of what happened inside that dispensary on that first visit. Pearle Perera had not gone into thedispensaryand
cannot, and' does not, testify to what took place inside the room in which there were only the deceased, her husband andthe
''accused-appellant. 'Furthermore, the accused-appellant admits, 'that the deceasedcametoherdispensaryonthe23rd
April, and that she treated the deceased on that occasion. If, however,theaccused-appellanthaddeniedthedeceased's
visit on the 23rd April as well, then' an acceptance of Pearle Perera's evidence on `that point,andafindingthatthe`
accused-appellant's denial is deliberately false, would have produced certain consequences. Such asituationdoesnot,as
stated earlier, however arise in this case.
The evidence of the deceased and of the two prosecution witnesses, Pearle Per era, referred toabove,andJapinNonado,
however, disclose the existence of a person who was in position to testify to what happenedinsidetheaccused-appellant's
consulting room when she examined the deceased on the afternoon of the 23rd April 73 and thereby.furnishevidenceofthe
deceased's evidence in regard to what the deceased says took place on the previous. day, 22.4.73, asbetweenherandthe,
accused-appellant. The person so disclosed is none other than the deceased's husband who was on thelistofwitnessesfor
the prosecution set `out in the indictment. He, however-has not testified for the prosecution at the 'trial. Ourattention
has not been drawn to any' ground or explanation submitted to the trial court, or even to the Court of Appeal, inregardto
the failure to call the deceased's husband at the trial for the prosecution. Although, when this was referred tobylearned
Counsel for the accused-appellant in the course of .his submissions to this court, learned .Senior State-Counselappearing
for, the Respondent stated from the Bar that learned State Counsel, whohadappearedatthetrialfortheState,has
informed him that this witness was dead at'-the time the trial commencedno evidence, in a form such as is usuallytendered
to satisfy the Court in regard to such a matter and thereby silence any possible comment by the defence,hasbeentendered
on behalf of the prosecution to the trial Court or to the Court of, Appeal, or, even row, to this Court.Althoughthereis
this defect in. the case for the prosecution, it is not necessary to discuss it further in view of the opinion. Itakeupon
the principal submission, referred to earlier, made to this Court on behalf of the accused-appellant.
That a false denial deliberately made in Court by a person, against whom an allegationismadeinproceedingsinstituted
against him, of a matter of vitalimportance could, under certain circumstances be taken as.corroboratingtheallegation
so made by the complainant whose evidence is, in law, required to be corroborated, is a principle which hasbeenlaiddown
by the Supreme Court, of this Island -vide : Warawita v. Jane.Nona(10) Dharmadasav.Gunawathy(11) Somasenav.
Kusumawathie (12),Indrawathie Kumarihamy v. Purijjala (13),Tennekoon v. Tennekoon (supra).
The aforesaid decisions all dealt with cases in. which claims for maintenance or seduction were made. Our attentionhasnot
been drawn to any, decision made in this Island in proceedings instituted under the criminal laws of theIsland.TheCourt
of Appeal has, in its judgment, referred to the decision of the Court of Appeal in England in the case of J.P.Throneand
Others (14), where the Court of Appeal considered this` principle in relation to theevidenceofanaccompliceinwhich
criminal charges of conspiracy and robbery were levelled againsttheaccused.Inconsideringthequestionwhetherthe
conduct of the accused putting forward alibis which theprosecutionallegedwerefabricated'todeceivethejurywas
evidence capable of corroborating the evidence of an accomplicewho testified for the prosecution against theaccused,the
Court stated at p. 18.
"The prosecution alleged that all these alibis -had been fabricated to deceive the jury and that if this was so the veryact
of fabrication was evidence capable of being corroboration of O' Mahoney's evidence against them.Counseldidnotsuggest
that alibis fabricated with such intent, could not be corroboration. In our judgment they can be, provided that. the juryis
satisfied that the falsity has not arisen from mistake andthatthefabricationhasnotcomeaboutthroughpanicor
and in-regard to the defence submission that there was not enough evidence to justify the jury finding thattherehasbeen
the relevant kind of fabrication, the Court held that there was evidence from which the relevant kindoffabricationcould
A consideration of this principle, as elucidated in the judgments referred to above, makes it quite Blear that thestatement
so sought to be relied on must relate to a vital issue which is in dispute in the case that it must not onlybefalse,but
must also be deliberately false : that its falsity must be established by evidence aliunde, that is by evidence whichisin
of and extraneous to the witness who stands in needofcorroboration.Beforethisprinciplecouldbeinvoked,itis
absolutely important that the falsity of the statement made by the defendant, or the accused as thecasemaybe,mustbe
clearly established. The statement so sought to be relied upon must first be proved to be deliberatelyfalse.Suchfalsity
must be proved by other independent facts and circumstances. The mere fact that such statement comes into conflictwiththe
assertion made by the witness sought to be corroborated is not sufficient. Otherwise, it would amount to using statement'A'
to condemn statement 'B' and then proceeding to use statement 'B' to support statement W. In other words it wouldamountto
the statement, which requires to be strengthened, itself being used to provide the material to be used to sostrengthenit.
Thus in this case the falsity of the accused-appellant's statement, that the deceased did not consult her atherdispensary
on 22.4.73, must first be established by other independent evidence which does not issue. forth fromthedeceasedherself.
That the-said denial of the accused-appellant was deliberately false must be evidenced by facts: and circumstances whichare
testified to by a witness or witnesses other than the, witness who needs to be corroborated. That such denial is inconflict
with an assertion made by the deceased herself is by itself insufficient to establishthefalsitywhichitiscontended
corroborates the deceased's allegation against the accused-appellant. AconsiderationofthejudgmentoftheCourtof
Appeal, in my opinion, makes it clear that this is precisely the approach adopted bytheCourtofAppeal.Therewasno
evidence - direct or circumstantial - before the' trial court, other than the assertion made by' the deceasedinherdying
declaration to Dr. (Mrs. ) Waas, to `justify a finding that the accused-appellant wasunmistakablyspeakinganuntruth:
when she stated under oath that the deceased did not see her at her dispensary on the 22ndApril1973.Therewason-this
point- whether the-deceased consulted the accused-appellant at the accused-appellant's dispensary in Etul Kotte on 22.4.73-
only the statement-made by the deceased in the said dying deposition made to Dr. (Mrs.) Wass on24.4.73ontheonehand,
and, on the other, a statement made in court under oath by the accused-appellant repudiating the. deceased's saidassertion.
The conclusion that the accused-appellant's such denial was false based only on the fact that thetrialcourtwasofthe
opinion that the deceased's assertion in the dying declaration is true. The assertion so made by thedeceasedstandsalone
unsupported by any other independent fact or circumstance (as what emerges from Pearle Perera's evidenceofthediscussion
between the. deceased and her husband is also only material furnished- by the deceased herself) tosupportwhatshesays.
Similarly there is no independent fact or circumstance to show that theaccused-appellant'sassertionisnottrue.That
being so, such falsity of the accused-appellant's denial, as is required as a condition precedent to the applicationofthe
said principle, has not in this case been proved:
The duty of an appellate court in a criminal case has been considered in several cases : The King v.Fernando(15) Martin
Fernando v. The Inspector of Police, Minuwangoda (16)The King v. Guneratne etal.(17) SangarakkitaTheroetal.v.
Buddharakkita Thero (18)Perera v. Naganathan (19). It must also be observed that the, findings of the trial courtinthis
case in regard to the culpability of the accused-appellant herself, is not based upon the perception of theevidenceplaced
before the trial judge but rather upon an evaluation of such evidence. The existenceofconcurrentfindingsbytheHigh
Court and by the Court of 'Appeal in regard to the guilt of the accused-appellant does riot, therefore, stand in thewayof
this Court too testing the evidence led at the trial "extrinsically as well as intrinsically"`
For the foregoing reasons I am of opinion that the aforesaid statement of the deceased made to Dr.(Mrs.)Waasstands,in
law, alone and uncorroborated, in regard to the identity of the offender.
The Court of Appeal was of opinion that although the Iearned trial Judge has 'seriously misdirected himself in a:conclusion
he had arrived at yet, there was ample evidence to provender alia, that it was the accused-appellant who' didtheoffending
act, and thatas the deceased's statement to Dr. (Mrs.) Waas has been -"rightly believed" by thelearnedtrialJudge,no
"substantial, miscarriage of justice has actually occurred", and that this. is an instancewhereintheprovisionsofthe
proviso to sec. 334(1) .of. the Code of Criminal Procedure Act No. 15 of 1979 and the proviso toArticle1,38(1)ofthe
Constitution should prevail: ' "
The only item of evidence available to the prosecution to affix responsibility to the accused-appellant in this caseisthe
:said statement of the deceased to Dr. (Mrs.) Waas. I have, however, set out earlier why the said statement cannotandmust
not be acted upon as being true and accurate. That being so, the provisos referred to by the Court of, Appeal -theproviso
to sec., 334(1)., of, the Code of Criminal Procedure Act No. 15 of1979,andthe.proviso,to,Article138(1)ofthe
Constitution. - do not arise for consideration. In any event the provisions of sec. 334 of the said Act No: 15 of1979have
no application to this case, as the provisions of that section apply only to appeals in cases where the trial is heldbefore
a judge and jury. Appeals to the Court of Appeal from a verdict of the High Court at a trial without ajuryaredetermined
according to the provisions of sec. 335 of the said Code of Criminal Procedure Act No. 15 of 1979.
There is just one other matter I have to 'refer to before concluding this judgment.. Although it is not a matteruponwhich
the decision of this case by this Court has been madetorestyet,itisamatteruponwhich,inmyopinion,the
observations of this Court should be recorded lest what has been done in the trial court - and has received thesanctionof
the Court of Appeal- be drawn as a precedent for the future.
The trial judge has, as indicated earlier, in considering the evidence given before him bytheprincipalwitnessforthe
prosecution looked into - evidently after the conclusion of the trial - the record of the non-summary inquiryheldinthis
case before- the Magistrate and perused the evidence given by the said witness at such non-summary inquiry in thecourseof
which the witness had also produced a document, which though it had then been marked P1, has not beenproducedinevidence
by the witness when the witness gave evidence at the trial. The learned trial judge, faced with thesituationthat,whilst
the indictment set out a particular description of the way in which the accused-appellant is alleged to have carried outthe
abortion, the principal prosecution witness's evidence of the deceased's description to her of how the accused-appellanthad
effected the abortion differed from it, had then proceeded to look into the record of the non-summary inquiry and perusethe
witness's evidence, given before the Magistrate, which contained the document, referred to earlier as having beenmarkedas
P1 before the Magistrate. Having so perused the said evidencethe learnedtrialjudgesetsout,inhisjudgment the
description contained in the said evidence, and then concluded that "there cannot be evenaniotaofadoubt"thatthe
deceased made' "a statement like this" to the said witness. The learned trial judge's ultimate finding, against theaccused-
appellant in regard to the manner of the commission of the offence, however, is not that it was committed in themannerset
out in the indictment nor in the manner set out in the said witness's evidence at the trial but that, as set outbythe
Court of Appeal, "some action or means was adopted to effect an abortion." Although the learned trialjudgedidsoperuse
the evidence given at the non-summary inquiry and did .also proceed tomakeseof,forthepurposesofhisjudgment,
material contained in such evidence, yet, he took no steps to have such material placed before him in the way that theother
material, placed at the trial for his consideration both by the prosecution and by the defence, had been placed. Neitherthe
prosecution nor the defence. seem to have been made aware of what has been done. The defence, which had taken the troubleto
place before the learned trial judge. according to law a deposition made in the non-summary inquiry by awitnesswhocould
not be called to testify at the trialwas completely ignorant that another deposition, thoughnotproperlyplacedbefore
himwas being considered by the learned trial judge. There is no benefit of a record by the learned trial judgeastowhy
he did what he did. In the absence of any such express record made by the learned trial judge it is reasonable to inferthat
he did so because the evidence given at the trial by the said witness did give rise: to doubts in his mindand.hedesired
to resolve such doubts. It is undoubtedly the right and indeed the duty of a trial judge and an inquiring Magistrate totake
certain steps, as set out by the Court of Appeal "in :the interests ofjustice and-toservethepurposeofjustice:to
acquit the innocent and-convict the guilty". Such stepshowever, must be taken strictly: inaccordancewiththerelevant
provisions of law relating to procedure and. evidence, and not solely "in. the spirit" -of -suchprovisions.TheCourtof
Appeal, in sanctioning the procedure adopted by the learned trial judge, has referred to the provisions set out, in sec.110
(4) of the Code of Criminal Procedure Act No:-15 of 1979 (which correspond to the provisions of sec. 122 (3) of theCriminal
Procedure Code - Chap 20 - which was repealed by the,. said Act: No., 15 of 1979) and has expressed itself as follows :
"if the law permits statements made to the- police which are often urged tobe(sometimesveryjustifiably)doctoredor
forced statements to be perused to aid Court in a inquiry or trial an accused-appellant cannot be heard: to say that forthe
same purpose, and in the spirit of that section, the Court should not make use of evidence of higher valueandsanctityto
aid Court at a trial".,
The said section 110 (4) undoubtedly empowers any criminal court to send for the statements recorded in a case underinquiry
or trial in such court" and to use such "statements or information" for the purpose set, out therein, namely, "to aiditin
such 'inquiry or trial"but it also expressly provides that such "statementsandinformation"arenottobeused"as
evidence in the case". The nature and the extent of the powers vested in a criminal court by the provisions of sec.122(3)
of the now repealed Criminal Procedure Code (the relevant provisions of which and those in the corresponding sec. 110 (4)of
Act No. 15 of 1979 are identical) and manner in which such powers should be exercised have beenclearlylaiddownbythe
then Supreme Court in s - long line of cases : Hamid v. Karthan (20)The King v. Soysa (21)R. v.Cooray(22) Inspector
of Police, Gampaha v. Perera (23)Paulis Appu v. Don Davith (24)Bartholomeusz v. Velu (25)S.I.P. v. Thalagahagoda(26)
Kitnapulle v. Christoffelz (27), and the unreported cases : S. C. 128-129 M. C. Kalmunai 7003, S. C. M. 15. 10. 63 S.C.
475/58 M. C., Kegalle 22209 S. C. M. 20. 10.59: Thus if what was perused and made use of by the learned trial judgeinthis
case in the way he did had been a "statement or information" as contemplated bysub-sec.4ofsec110oftheCodeof
Criminal Procedure Act No. 15 of 79, then the procedure so adopted by the learned trial judge could not have beenjustified.
What now remains to be examined is whether the fact that what was so perused and used was evidence given atthenon-summary
inquiry held in this case before the Magistrate would clothe such procedure with legality. There is no expressprovisionin
the Code of Criminal Procedure Act No. 15 of 79 (nor was there in the earlier Code) authorising the use of evidence givenat
a non-summary inquiry at a later stage of the same proceedings in the way "'statements and information", referred tointhe
said section 110 (4), could be used as set out in the said section. There is, however,expressprovisionintheEvidence
Ordinance (Chap. 14), in sec 33, making evidence given by a witness in a judicial proceeding relevant inalaterstageof
the same judicial proceeding.. Once such evidence becomes relevant at the stage of the trial, then such evidencewouldhave
also to be proved before the trial judge in the same way the other items ofrelevantandadmissibleevidenceareplaced
before the trial judge in accordance with the' express provisions of the laws of evidence orofcriminalprocedure.Facts
which. are relevant can be considered by the trial judge only if and when they are led in evidence before himatthetrial
in accordance with the relevant express provisions of law. A deposition made at a non-summary inquiry must, ofrelevant-at
the subsequent trial, be adduced in evidence in open court at the trial in the presence of both parties, just as much asthe
other relevant facts have to be led in evidence and proved at the trial in-open court in the presence oftheparties.This
is what the,- law requires,- and it has also been the inveterate practice. ,That is so is also borneoutbythe caseof
Reg. v. Arthur Perera (28). The procedure adopted in regard to this particular matter by the learned trial judgecannot,in
my opinion, be justified upon any ,basis :- whether of precedent or of any express provision of law. '
For these reasons, I" make order allowing the appeal of the accused-appellant: "The conviction of and' the` sentenceimposed
on the accused-appellant are set aside and the accused-appellant is acquitted
WIMALARATNE, J. -I agree.
RODRlGO, J. - I agree.
Appeal allowed and accused acquitted.