Case BriefsForeign Courts

Court of Appeal of Sri Lanka: The Bench of M.M.A. Gaffoor and K.K. Wickremasinghe, JJ. dismissed the appeal of the accused-appellant who was indicted for committing the murder of a fifteen-year-old girl.

The facts of the case were that the deceased was a fifteen-year-old girl living together with the accused as husband and wife however she was not legally married to the accused. On the day of the incident accused came to the house of his mother with the deceased and after sometime went to accused’s house which was in the same compound. After a short while, the accused had come and told his mother and sister who were in the main house about the incident. The deceased was found hanging in the accused’s house. The testimony of the mother and sister against the accused which were well corroborated were taken into account. The postmortem report revealed that death was due to ligature strangulation. Thereafter for his defense, the accused opted to give a dock statement wherein he stated that a person whom he named was responsible for the death of the deceased. Accused further said the same person had told him to surrender to the Police. This position had never been suggested by any of the prosecution witnesses including the investigating Police Officers thus the dock statement made by the accused was considered as an afterthought and thus the Court rejected the same. The High Court convicted the accused. When this matter came up for argument the counsel for the accused took up several defects in the High Court Trial including that a mere non-confession utterance by the appellant had been converted to a confession statement by the State Counsel thereby denying the accused of a fair trial.

The Court after perusing the case record and the submissions made by both Counsel rejected the submissions made by Counsel for the accused with regard to the above defects highlighted as they had no merit. The Court resonated the opinion of Justice Thilakawardena, in AG v. Sandanam Pitchi Mary Theresa, S.C. Appeal No. 79 of 2008, wherein he stated that “Discrepancies that do not go to the root of the matter and assail the basic version of the witness cannot be given too much importance.” The appeal was thus dismissed. [Ambagahagedara Nimal Ratnayake v. Attorney General’s Department, 2019 SCC OnLine SL CA 3, decided on 01-04-2019]

Case BriefsForeign Courts

Court of Appeal of Tanzania: The Bench of K.M. Mussa, S.A. Lila and R.K.Mkuye, JJ., decided in an appeal concerning the conviction of the appellant for the offence of “Rape” contrary to Sections 130(1) (2) (e) and 131 (1) of the Penal Code, Cap 16 R.E. 2002.

Appellant was sentenced to life imprisonment and for the said his appeal to the High Court was unsuccessful. Hence, the second appeal.

In the evening of the fateful day, the appellant went to Beatrice Ishiaka’s (PW1) home and took PW1 together with Pascal Mode to the orange farm to harvest oranges. While at the farm the appellant ordered PW1 to sit down and get the money. However, the appellant raped her. Thereafter, PW1 went home and informed her grandmother (PW3) to have been raped by the appellant. The matter was reported to the relevant authorities which led to the appellant’s arrest.

Appellant denied to have raped PW1 and lodged a memorandum of appeal comprising 4 grounds of appeal.

The Court of Appeal while reaching to a conclusion went through the grounds of appeal, facts and the material on record in the most careful manner and stated that

Court is required to be cautious and very slow to disturb the concurrent findings of facts of the two courts below. The Court could only do that if there are completely misapprehensions of the substance, nature and quality of evidence which result into fair conviction.”

Further, the Court on examining the grounds of appeal mentioned by the appellant dealt with only ground number 3 and 4 that touched the “credibility of witnesses” and the “standard of proof”.

Placing reliance on the case of Aloyce Mgovano v. Republic, Criminal Appeal No. 182 of 2011; Court dealt with “credibility of witnesses”. In the said case, Court also cited Shabani Daudi v. Republic, Criminal Appeal No. 28 of 2000; wherein it was stated that,

Credibility of a witness can also be determined in two other ways: one, when assessing the coherence of the testimony of the witness. Two when the testimony of that witness is considered in relation with the evidence of other witnesses, including that of the accused person. In these two other occasions the credibility of a witness can be determined even by a second appellate court when examining the findings of the first appellate court.”

Court stated that evidence of PW1 was taken without the oath. This is a situation where corroboration was required. It is settled law that unsworn evidence most often requires corroboration. Unfortunately, Pascal Mode who was with PW1 did not testify. PW2 and PW3 cannot be taken to corroborate her evidence as their evidence was mere hearsay as regards to who raped PW1. It was also observed that even if PW 3 saw some features suggesting that PW 1 was raped, she could not be in a position to know who did it.

Hence, the Court concluded that, unfortunately, no reasons for failure to call Pascal were given as he was a material witness in the present case which led the Court to agree with appellant and merit was found in the stated grounds. Appeal was allowed and conviction quashed and set aside, with the release of the appellant. [Raphael Mhando v. Republic, 2019 SCC OnLine TZCA 1, Order dated 01-03-2019]

High Courts

Punjab and Haryana High Court:  Denouncing the tendency of the people to give older date of birth in the matriculation examination to qualify in the matriculation examination but then to rely upon the birth certificate that he is younger in age at the time of employment, cannot be countenanced,  the division bench comprising of Hemant Gupta and Lisa Gill, JJ., held that though the Birth Certificate carries with it a presumption of correction being maintained by a public office in discharge of his official duties, even then, in the case of there being variation in the date of birth in the Birth Certificate and the Matriculation Certificate a person would be estopped as per the law of estoppel laid down in Section 115 of the Evidence Act, 1872, from disputing the same in the guise of correcting the mistake in the Matriculation Certificate. The date of birth cannot be permitted to be corrected in terms of the regulation of the School Board merely because in a birth certificate issued by the Registrar, there is a different date than what is mentioned in the matriculation certificate. Only correction of clerical errors can be allowed in such case.

In case of persons born before the registration of births became mandatory, they would be granted a limited right to corrections on the basis of the doctrine of Ante Litem Motam, which presumes that in case of things done before arising of a legal dispute the declarant has no motive to lie. The person will still not be permitted to dispute the entry of the date of birth in the Matriculation Certificate.

It was also held by the Court that in cases where the date of birth was given in the school records by the parents of a child when he was minor, by virtue of Section 6 of the Limitation Act, 1936 which gives a right to the person suffering from legal disabilities including a minor to assert his rights after the cessation of such disability, such a minor can dispute the date of birth given in the matriculation certificate but the same has to be exercised within the period of limitation of 3 years of his attaining majority as laid down in Section  8 of the same act.  Ambika Kaul v. Central Board of Secondary Education,  2015 SCC OnLine P&H 1669decided on 21.05.2015.