B. Sasi Mahendran, J.

The Accused-Appellant (hereinafter referred to as the Appellant) was indicted before the High Court of Colombo on four counts for the offence of soliciting and accepting a bribe from one Abhabinna Arachchige Anura Bandara Abesinghe, on or during the period 01st September 2012 to 24th March 2013, punishable under Section 19(b) and (c) of the Bribery Act.

At the trial, the prosecution presented evidence through 6 witnesses and marking productions P1-P9 and thereafter closed its case. The Appellant, in his defence, made a dock statement and called 2 witnesses.

At the conclusion of the trial, the Learned High Court Judge, by judgment dated 24. 01.2019, found the Accused guilty of all 4 counts and imposed a sentence of 5 years of rigorous imprisonment and a fine of Rs. 5,000/- for each count and 1 year of rigorous imprisonment in default for each count. Further, a fine of 25000 and 1 year of rigorous imprisonment in default. For the 4th count, compensation of Rs. 100,000/- was ordered to be paid to the victim; in default, a term of 2 years of rigorous imprisonment.

Being dissatisfied with both the conviction and the sentence imposed by the Learned High Court Judge, the Appellant preferred an appeal before this Court, articulating the following grounds in support of their challenge.

                   1. Prosecution has failed to prove Charge Nos. 01 and 02 beyond reasonable doubt

                   2. PW 03 (The Decoy) is not a credible witness to corroborate the evidence of PW 01.

                   3. Prosecution has failed to prove Charge Nos. 3 and 4 beyond reasonable doubt

                   4. Whether the Learned High Court Judge has failed to carefully consider and evaluate the evidence of the Defense (Appellant)

                   5. Whether the Learned High Court Judge erred in law and facts to consider that there was no evidence before court to grant compensation under section 17 of Criminal Procedure Code.

The facts and circumstances of this case are as follows,

PW 01, Anura Bandara Abeysinghe, has been disabled since birth. The Appellant, serving as the Grama Niladhari, informed him that he was eligible to apply for a government donation scheme established for the construction of houses for disabled persons. Acting on this information, PW 01, accompanied by his mother (PW 02), visited the Appellant’s office to obtain further details. At that meeting, the Appellant explained the nature of the scheme. Approximately three months later, PW 01 was summoned by the Appellant to his office. On this occasion, PW 02 was asked to remain outside while PW 01 met with the Appellant privately. During this meeting, the Appellant stated that the government had approved the donation, which was to be disbursed in four instalments. The Appellant then solicited a payment of Rs. 25,000 from each instalment, amounting to a total demand of Rs. 100,000. Further, the Appellant has stated not to tell anyone.

Upon returning home, PW 01 informed PW 02 of the Appellant’s demand and was advised to act accordingly. On the following day, an officer from the Divisional Secretariat visited PW 01’s land and notified him that the government donation had been approved, and that he could collect the cheque from the Divisional Secretariat office.

Subsequently, PW 01 collected the cheque and deposited it into his Sanasa Bank account. Thereafter, at the request of the Appellant, PW 01 visited him again. During this meeting, the Appellant reiterated his earlier demand, insisting that PW 01 pay Rs. 25,000 from the first instalment. The witness informed the Appellant that his sister rewrote the letter according to the format, and the Appellant instructed PW 01 to bring the letter and Rs 25,000 payment on the following Monday. The PW 02, the mother of PW 01, later disclosed this incident to PW 05 (the aunt of PW 01), explaining that the Appellant had solicited money from PW 01 in connection with the government donation. PW 05 advised them to report the matter to the Bribery Commission

Following the complaint, a raid was organized, during which PW 3 acted as a decoy. The witness explained that he was searched prior to the operation, and the necessary arrangements were made for the raid. Further officers had recorded a statement from PW 1. According to the testimony, PW 3 and PW 05 proceeded to the Appellant’s office with the witness by a three-wheeler. Other officers stayed near Appellant’s house till the information of PW 3. PW 1 and PW 3 proceeded to the inside of the Appellant’s office. At that time, the Appellant instructed the witness to speak loudly, while he himself remained seated outside. PW 01 introduced PW 3 as his uncle from Balangoda, who had come to assist in building the house. During the interaction, the Appellant asked PW 1 whether it was acceptable to receive the money in his presence, thereby confirming his intention to solicit the bribe openly.

Page 124 of the brief,

                   

When PW 01 handed the letter to the Appellant, the Appellant sealed it and placed it on the table. Thereafter, the Appellant accepted the money from the witness and instructed him to place it underneath a bag that was lying on the table.

Page 125 of the brief,

          

Subsequently, the Appellant instructed PW 01 to hand over the letter to the Defence Secretary. As PW 01 and PW 3 were leaving the office, the Appellant also came onto the road. Thereafter, the witness entered a three‑wheeler and proceeded directly to the police station. It is important to note that PW 01 handed over the letter to the investigating officer. The letter bore the seal of the Appellant and was marked in evidence as P1.

During cross‑examination, the witness affirmed that an individual from the AG office had informed him about the cheque. He was not certain whether he had been personally contacted by telephone or whether someone had conveyed the information to him. He further stated that the letter, prepared by his sister, was handed over to the Appellant, who affixed his seal and retained it. The witness reiterated that the Appellant had instructed him to place the money underneath the bag on the table. During proceedings, the defence proposed that PW 01 had, on his own initiative, placed the money under the bag. The witness firmly rejected this version, reiterating that he acted solely under the instructions of the Appellant when he placed the money beneath the bag on the table.

During examination-in-chief, the witness described his disability, noting that he had been disabled since birth and had not attended school. He further stated that he bore no enmity toward the Appellant.

Upon analyzing the evidence of the witness, it is observed that he remained firm in his account: the Appellant had demanded money, and the incident was duly reported to the Bribery Commission. The witness also provided a detailed explanation of how the raid was conducted. It is further noted that, during cross-examination, the defence was unable to dislodge or weaken the version of the witness. His testimony remained consistent and credible throughout.

PW 2, Diyakolawattalage Somawathi, the mother of PW 1, went with PW 1 and testified that PW 1 had informed her of the Appellant’s demand for Rs. 100,000, to be paid in four instalments. She stated that she had agreed to make the payments in order to continue the construction of the house. PW 2 further explained that she disclosed this matter to PW 3, who thereafter reported the incident to the Bribery Commission.

During cross‑examination, PW 2 admitted that when she accompanied PW 1 to the Appellant’s office, she was unable to hear the conversation that took place between PW 1 and the Appellant.

PW 3, Ajith Kumara, an officer of the Bribery Commission, together with SI Livera Duglas Perera, PW 4, received information regarding the Appellant’s demand and proceeded to conduct the raid. He further stated that several other officers accompanied him and assisted in carrying out the raid. Upon reaching the location, the officers recorded a statement from PW 1, thereby formally documenting his account before proceeding with the raid.

PW 3 further stated that he accompanied PW 1 as a decoy during the raid. He was introduced under the name “බලංවගාඩඉදන්වේහදන්නඅපුබාේප”. Before the operation, he was searched by the chief officer to ensure procedural compliance. PW 3 then proceeded with PW 1 to the Appellant’s office by three‑wheeler. He testified that the officers instructed PW 1 not to hand over the money forcefully, but rather to observe carefully where the Appellant directed the money to be placed.

Page 233 of the brief,

                   

                   

PW3 further explained that the marked money had been handed over to them before the raid. While the PW 1 went inside, the witness remained seated outside near the door, listening and observing what was happening inside. The witness stated that he had brought the demanded money. The accused inquired about the identity of the witness, where PW1 introduced him as the uncle who had come to assist in constructing the house. Thereafter, the Appellant questioned PW 1 regarding the matter, to which PW 1 responded that both PW 2 and PW 3 were aware of the situation.

Page 239 of the brief,

                   

The appellant inquired about the letter and handed over two letters, one of which was sealed and retained. Thereafter, PW1 gave money to the appellant and asked him to count it. The appellant replied that there was no need to count and instructed that it be placed under the bag. It was further observed that the appellant stood up and adjusted the bag, making the money beneath it invisible. Both then came out, and PW1 told the witness to leave. As they proceeded towards the main road, the appellant also followed, and after he departed, the witness contacted officers and informed PW 4 that the money had been kept under the black bag. At that time, PW1 was standing near the gate.

When PW 4 stepped down from the van, the appellant quickly shut the front door of his house. The officers then observed the appellant emerging from behind the door, and after pursuing, they apprehended him. Following the arrest, the officers accompanied him from behind the door and entered the office. At that point, the witness lifted the bag and indicated where the money was kept. The appellant stated that he could not touch the money, after which PW 4 counted it and officially recorded the amount.

During cross-examination, the witness admitted the fact that the Appellant’s office was on top of a mountain. He is certain about the incident that is happening between the Appellant and the PW1. When PW4 arrived, the defence suggested that the appellant had closed his front door and remained at the back of the house. The witness denied this version, stating instead that the appellant attempted to run away and was arrested.

PW4, Livera Dougles, the chief officer who conducted the raid, stated that he received information from PW5 and subsequently conducted the raid, and he recorded a statement from PW1. He advised PW1 not to give money forcibly. PW3 was then selected as the decoy and accompanied PW1 to the appellant’s house, while PW4 followed behind in a van with PW5. Upon searching for PW1, it was found that he had two letters. About 200 meters away, they stopped the van. PW1 and PW2 then went to the appellant’s office, and after ten minutes, PW3 called. At that time, the appellant went to the rear side of the house and attempted to run, but the witness pursued and arrested him. Subsequently, the money was discovered under a black bag.

After the prosecution concluded, the appellant testified that he had long known PW1, who is disabled. He stated that he had helped PW1 obtain artificial limbs without expecting any benefit. Upon learning of a government donation scheme to assist disabled persons in building houses, the appellant informed PW1 and recommended his name to the Divisional Secretariat. Once PW1’s eligibility was confirmed by the Secretariat, the appellant conveyed the information to PW1 and provided the necessary instructions. Because PW1 could not read or write, the appellant prepared a letter in format for submission to the Divisional Secretariat. On Monday, PW1, accompanied by another person, brought the letter to the appellant’s office and handed it over before leaving. Shortly afterwards, the appellant went to his tea estate, where a group of officers arrived and arrested him.

After being arrested by bribery officers and taken to his office, the appellant was questioned about the money that was recovered from the documents. He denied any knowledge of it, stating that he had never received money from PW1 and suggesting that PW1 may have secretly placed it there. The appellant further claimed that PW5 had a personal dispute with him and had deliberately made a false complaint to implicate him in a crime.

We note that according to PW 1, the money was kept under a black bag. However, the Appellant contends that the money was actually recovered from his documents. The question that arises is whether, when the Appellant was present, it was probable for PW1 to conceal the money in the said room without his knowledge. This inconsistency casts doubt on the reliability of the testimony.

The main argument advanced by the defence was that there was a discrepancy between the testimonies of PW1 and PW3. It is true that such a discrepancy exists: PW1 stated that after handing over the money, he went to the police, whereas PW3 testified that he saw PW1 standing near the gate. It must be noted, however, that PW1 was the complainant, while PW3 was the officer involved in the raid, and each had different roles. PW1, after handing over the money, left the scene, while PW3 informed PW4 about the matter. Thus, both witnesses were engaged in different tasks.

I am mindful of the following judgments.

Veerasamy Sivathasan v. Attorney General, SC Appeal 208/2012, Decided On 15.12.2021, Yasantha Kodagoda, PC, J held that;

                   “one cannot reasonably expect them to provide a picture perfect narrative complete with all details of what actually happened. Further, it is quite possible that IP Welagedera did not see the exact manner in which WSI Gamage conducted herself, particularly as he would have been concentrating on relieving himself from the grip of the 1st Accused and on preventing the 1st Accused from evading arrest and fleeing from the scene along with the polysack bag. When ‘participant-witnesses’ as opposed to ‘passive-observer-witnesses’ give evidence regarding an incident that occurred quite suddenly, it is not humanly possible for their testimonies to mirror each other.”

Samaraweera V. The Attorney General 1990 (1) SLR, 256 at page 260, P.R.D. Perera, J, held that

                   “Where however the maxim set out above is applicable it must be borne in mind that all falsehood is not deliberate. Errors of memory, faulty observation or lack of skill in observation upon any point or points, exaggeration or mere embroidery or embellishment must be distinguished from deliberate falsehood. Nor does it apply to cases of testimony on the same point between different witnesses. (Vide The Queen v. Julis (1) C. C. A.).”

Another point raised by the defence was that PW2 accompanied PW1 but could not hear the conversation. On the other hand, PW3 testified that he heard both the witness and the appellant speaking. It is noted that PW2 is an elderly lady. However, the fact remains that PW1’s evidence that the appellant made a demand was not disputed by the defence. It is also significant that the letter was recovered from the appellant’s office. Considering the defence evidence, there appears to be no reason for the appellant to have fled from the office. Accordingly, the Learned High Court Judge correctly came to the conclusion that the Appellant solicited the money from PW 1 and accepted by the Appellant.

We believe that the Appellant’s conduct, running from the house and locking the front door, establishes the fact that PW1’s version that he placed the money on the table and how the raid was conducted.

We hold that the prosecution has proven beyond reasonable doubt that the Appellant has solicited and accepted a bribe from one Abhabinna Arachchige Anura Bandara Abesinghe.

In those circumstances, I am not inclined to interfere with the judgment of the Learned High Court Judge dated 24.01.2019, together with the sentencing order and dismiss the appeal.

The Appeal is dismissed.

Amal Ranaraja, J.

I Agree