CA Don P ercy Nanayakkara v.

The Republic o f S ri Lanka 71

DON PERCY NANAYAKKARA

v.
THE REPUBLIC OF SRI LANKA

COURT OF APPEAL
S. N. SILVA, J. & D.P.S. GUNASEKERA, J.
CA APPEAL NO. 375/85.
HC COLOMBO CASE NO. 752/80.
JULY 06, 08, 09, 10, 22 AND 30, 1992.
SEPTEMBER 01 AND 08, 1992.

Criminal Law - Examinations - Rescrutiny - Unauthorised alterations in exami­

nation results sheet - Making a false document - Forgery - Sections 452 and
453 o f the Penal Code - Exercise o f discretion to add a mark in a borderline
case - Sentence - Imposition o f deterrent punishment.

The accused appellant was the Acting Deputy Commissioner of Examinations

and the O fficer-in-Charge of the D ata Processing Section of the Examinations
Departm ent. This section was a key unit of the Departm ent and it received data
in respect of each G .C .E. (O .L ) and (A.L.) exam ination conducted by the
Departm ent. In respect of each examination, the section m akes out an original
results sheet in the form of a direct print from th e computer. Candidates who
sit for an exam ination not from schools but privately are issued individual result
schedules taken from the original results sheet. At the material tim e the
candidates had an option of seeking a rescrutiny of their marks. Any change
in the grade, effected by a Rescrutiny Board, is entered in the original results
sheet, by hand.

Candidate Hewagam a's result sheet at the April 1978 A .L examination

indicated she had failed in Physics. On the rescrutiny despite an assurance
by the accused-appellant the results sheet still showed a failure in Physics. The
candidate's father took this m atter up with the accused-appellant who took
back the rescrutiny results schedule and handed over a fresh schedule showing
a pass in Physics. As the candidate's em ployer wanted confirmation of the results,
the accused-appellant issued a letter of confirmation under his hand confirming
the pass in Physics. The original results sheet was also altered and the letter
"F" (failure) which had earlier appeared on it w as scored off and the letter
“S ” (pass) interpolated under the initial of the accused-appellant. The
accused-appellant denied he did the alteration. Candidate Hewagam a's father
was Personal Assistant to the Secretary of the Political Victimisation Committee
to which the accused-appellant had made representations. The accused-appellant
received relief on the recommendation of the Com m ittee and became known
to Hewagam a. It was when this m atter w as in progress that the rescrutiny of
the Physics result was sought.
72 S ri Lanka Law Reports (19 9 3 ) 1 S ri L.R.

Again in the August 1978 O .L examination candidate Satharasinghe had sought

a rescrutiny of her results in French and Physics. T he results schedule on
rescrutiny showed that candidate Satharasinghe had obtained a credit pass in
French and as for Physics the accused-appellant added one m ark necessary for
a credit pass and gave a credit pass in Physics. The accused-appellant admitted
this alteration and claim ed he had the discretion to do this in a borderline case.
But in the results sheet the alteration was shown as done on the basis of rescrutiny
and not on the basis of a bona fide exercise of discretion. The father of candidate
Satharasinghe was acquainted with th e accused-appellant.

Held:

(1) The alteration on the Physics results sheet of candidate Hewagam a was
clearly unauthorised. The accused had him self signed the letter of confirmation
confirming the pass in Physics for production to the em ployer of candidate
Hewagama, without allowing it to be done by the Certificate Branch according
to the usual procedure. The alterations have been m ade dishonestly by the
accused-appellant.

(2) The offence of forgery consists of the making of a false docum ent as defined
in section 453 of the Penal Code for any of the purposes stated in section 452.
Section 453 defines a false document by setting out the particular process of
making the document by which the docum ent itself is rendered false. The three
limbs of the section describe three distinct processes of dishonest or fraudulent
making, altering or causing the execution or alteration of a document. The instant
case involved the application of the first limb of 'm aking'. T he word "makes" as
appearing in the first limb o f section 453 should be construed in the broader
sense of creating or bringing into existence, the impugned docum ent and not
in the narrow sense of only writing the impugned document. Such an interpretation
is necessary in a situation w here th e impugned docum ent is typed or printed.
The accused-appellant is guilty of making a false document.

(3) In regard to candidate Satharasinghe the alteration in respect of Physics

is unauthorised and has been m ade dishonestly and without authority.

(4) There is no discretion in the Commissioner of Exam inations to discrim inate

in favour of an individual candidate on the basis that such candidate has received
marks that place him on the borderline of obtaining a credit. Any discretion that
is exercised has to be done on a generalized and non-discriminatory basis. All
candidates who have received marks up to that level should then be given the
higher grade. The award of a higher grade, as a favour, based upon kinship,
friendship or other considerations is a negation of the rule of law, that should
strictly govern all processes of conducting public exam inations. It is not indicated
in the results sheet that the alteration of the Physics result w as done on the
basis of any discretion vested in the Commissioner. The cause for the alteration
was given as on rescrutiny and w as patently false.
CA Nanayakkara v. The Republic o f S ri Lanka (S . N . Silva, J.) 73

(5) T he accused-appellant was 60 years old, counted 24 years, of public service,

had undergone incarceration for 64 days and was said to be suffering from renal
failure, hypertension and an ischaemic heart disease. There was no evidence
however that he was receiving in-patient treatm ent in hospital.

In assessing punishment the Court has to consider the m atter from the point
of both the offender and the public. The accused had held high public office
and exercised extensive statutory power in conducting public exam inations in this
country. These exam inations have to be conducted fairly and the results declared
accurately. Thousands of students who face public examinations, every year,
should have com plete confidence in the fairness and accuracy of every process
of the exam inations. T he accused has subverted the very basis of this confidence
by his conduct in dishonestly showing favour to persons with whom he was
acquainted. Therefore, public interest dem ands that he should be imposed a
deterrent punishment.

Cases referred to :

1. Panchanan v. The State, A IR 1953 Calcutta 798.

2. Siddhapa v. Lalithamma, A IR 1954 Mysore 119.
3. Province o f Bihar v. Surendra Prasad, A IR 1951 Patna 86, 89.
4. Chatru Malik v. Emperor, A IR 1928 Lahore 681, 686.
5. King v. Caspersz, 47 NLR 165.
6. Attorney-General v. H. N. d e Silva, 57 NLR 121, 124.
7. Gomez v. Leelaratne, 66 NLR 285.

APPEAL from judgment, conviction and sentence of the High Court of Colombo.

Ranjith Abeysuriya, P.C., with Lasantha Wickramatunga for accused-appellant.

C. R. de Silva, D.S.G. for A.G .

Cur. adv. vult.

October 23, 1992.

S. N. SILVA, J.

The accused has filed this appeal from the conviction on charges
1,2 and 4 of the indictment and the sentence of 3 years' R.l. imposed
on him. The accused was a public officer employed at the Department
of Examinations from 1966 until he was sent on compulsory leave
on 16.10.1979. At the time material to the charges on which he was
convicted, he was the Acting Deputy Commissioner of Examinations
and was functioning as the officer-in-charge of the Data Processing
Section of the Department. This is a key unit of the Department
and it received data in respect of each G.C.E. (O.L) and (A.L.)
examination conducted by the Department, at two stages. Firstly at
74 S ri Lanka Law Reports (1993) ISriLR.

the stage the applications of the candidates are received and secondly
at the stage when the marks secured by each candidate are sent
up by the unit in charge of the marking of scripts. Upon processing
this data the section releases the result of the examination to the
candidate. In respect of each examination, the section makes out an
original results sheet in the form of a direct print from the computer.
The results sheet contains the name, index number, the grade obtained
in each subject offered (viz. Distinction, Credit, Pass, Fail - D, C,
S, F) and the total number of subjects passed, in respect of each
candidate. Candidates who sit for an examination privately (not from
schools) are issued individual results schedules. These schedules are
extracts in respect of the particular candidate taken from the original
results sheet. At the material time the candidates had an option of
seeking a rescrutiny of their marks by making separate applications
in respect of each subject. This facility was available in respect of
both types of examinations. Any change in the grade, effected by
a Rescrutiny Board, is entered in the original results sheet, by hand.

Counts 1 and 4 relate to unauthorised alterations in the original

results sheet of the G.C.E. (A.L.) examination held in April 1978 (P1)
and G.C.E. (O.L.) examination held in August 1978 (P9). These
alterations have been made in relation to candidates, Hewagama
(Index No. HP 71547) at the A.L. examination and Satharasinghe
(Index No. 0060182) at the O.L. examination. Count 2 relates to the
making of a false document viz. Results Schedule (P5) which purports
to confirm the altered result in respect of candidate Hewagama. The
accused denied that he made any alteration in respect of candidate
Hewagama and denied that he issued the schedule P5. He admitted
making the alteration in respect of candidate Satharasinghe and
sought to justify that alteration on the basis that it was a bona fide
exercise of discretion. In view of this position, the evidence and the
submissions in respect of the different sets of charges have to be
separately dealt with.

C. P. Hewagama being the father of the candidate Hewagama

gave evidence regarding the circumstances in which he sought the
assistance of the accused as to an application for rescrutiny made
by his daughter, in respect of one subject. He stated that he became
acquainted with the accused when the latter came to present
an appeal to the Political Victimisation Committee. The witness
was functioning as a Personal Assistant to the Secretary of the
Victimisation Committee. He stated that he assisted the accused
CA __________ Nanayakkara v. The Republic o f S ri Lanka (S. N . S ilva ,J .) 75

by expediting certain steps that had to be taken by the Committee

with regard to the appeal which according to him was belatedly
made. It is not disputed that the accused got relief upon the
recommendations made by the Committee. When this matter was in
progress, witness's daughter sought rescrutiny in the subject of Physics
in which she had failed (Grade F). Witness requested the accused
to look into this application for rescrutiny. At a certain stage the
accused indicated, that the daughter secured a Pass in Physics
(Grade S) pursuant to the rescrutiny. Some time thereafter, the
daughter received a communication dated 31.1.1979 (P19) stating that
there was no change in the result pursuant to the rescrutiny. Since
this was contrary to the information given by the accused, witness
contacted the accused regarding the matter and the accused agreed
to look into it. Later the accused said that there was a mistake and
requested the witness to meet him with P19 and the results schedule
that had already been issued to the candidate. When the witness
met the accused at the latter's office he handed over P19 and the
results schedule to the accused who in turn gave a fresh schedule
(P5) which shows that the daughter had secured a Pass (Grade S)
in Physics. According to his evidence, by this time the daughter was
employed as an Uncertified Science Teacher at the Education
Department. When the schedule P5 was submitted to the Department,
according to the usual procedure the Department sought confirmation
of P5 from the Department of Examinations. This confirmation had
been sought but there was a delay at the Department of Examinations,
in replying the query. At that stage witness contacted the accused,
once again, regarding the matter. The accused requested the witness
to see him at the office. Witness met the accused on 10.10.1979
and the accused issued a letter of confirmation under his hand (P8)
confirming the altered results as shown in the schedule P5.

The other evidence regarding this set of charges comes from

official sources. Fonseka, Asst. Commissioner of Examinations, who
succeeded the accused as the officer-in-charge of the Data
Processing Section, produced the relevant portions of the original
results sheet in regard to candidate Hewagama (P1). This results
sheet shows that letter "F“ appearing in the column Physics has been -
scored off and letter “S" written against it. In the last column showing
the number of subjects in which the candidate has passed, number
3 has been scored off and 4 written against it. Beneath each alteration
(P1A) an initial in the form of a single letter (zn) has been written.
Witness who stated that he has worked with the accused for several
76 S ri Lanka L aw Reports (1993) ISriLR.

years identified the initial as being of the accused and specifically

stated that the alteration had been made by the accused. The
alteration (P1A) was identified as been made by the accused,
by the Commissioner of Examinations witness Gunesekera and defence
witness Gerald de Alwis who was also an Assistant Commissioner
of Examinations. A retired Examiner of Questioned Documents
testified for the defence and stated that no opinion could be expressed
as to who made the alteration due to the insufficiency of the impugned
writing. Learned trial Judge placed no reliance on this evidence
because the witness did not have the necessary material or the
opportunity to carry out a proper examination. The prosecution also
produced in evidence the detailed mark sheet in the subject of
Physics showing the marks secured by candidate Hewagama in
Physics (P2 and P3). According to these mark sheets, this candidate
had obtained 29 marks in paper I and 22 marks in paper II. Thus
the average marks secured by the candidate is 26 out of 100 which
is far below the pass mark of 38. The result of the Board of Rescrutiny
(P4) shows that the Board found no change in the marks secured
by the candidate. Therefore, P19 has to be taken as the correct
statement of the result as disclosed by the Board of Rescrutiny. The
alteration P1A cannot be referred to the rescrutiny and in any event
witnesses Fonseka and Gunesekera specifically stated that if an
alteration is made pursuant to a rescrutiny, that matter has to be
noted at the foot of the altered results sheet. There is no such entry
in the results sheet P1. In the circumstances the alteration P1A is
clearly unauthorised.

The accused in his evidence denied having made the alteration

P1A. He admitted meeting witness Hewagama at the Political
Victimisation Committee but denied that he had any conversation
regarding the rescrutiny application made by his daughter. He also
denied that he issued P5. The accused admitted that witness
Hewagama met him at the office on 10.10.1979 regarding the
confirmation sought by the Department of Education of the results
schedule. At that stage witness had shown him a photo copy of the
front of the schedule P5. The accused gave that copy of the schedule
to his secretary requesting her to attend to the matter. He admitted
signing the letter P8 which confirms the altered result. His defence
is that he did not check the original results sheet before signing the
letter P8. But, that he signed the letter in the belief that his secretary
has caused the matter to be properly checked. The secretary was
not called as a witness.
CA __________ N anayakkara v. The Republic o f S ri Lanka (S. N. Silva, J.)__________ 77

Learned trial judge has disbelieved the evidence of the accused

regarding the denial of making the entries P1A and of issuing of
P5. He has believed the evidence of Hewagama regarding the
circumstances in which P5 was issued to him. He has also believed
the evidence of witness Fonseka and Gunesekera and the defence
witness de Alwis that the accused made the alteration P1A.

Learned President’s Counsel submitted that the trial Judge was

in error when he accepted the evidence of witness Hewagama. It
was submitted that Hewagama knew other persons in the Department
of Examinations and would have got the alteration done by one of
them. As regards credibility, learned President's Counsel submitted
that the evidence of Hewagama shows manifest improbability in two
matters. They are : (1) according to the witness' evidence when
P5 was given, which was contrary to letter received after the
rescrutiny (P19), he merely took it from the accused although there
was no authentication on the face of the document. It was submitted
that any person would have insisted that the altered schedule
be authenticated specially because it was contrary to the results
already declared ; (ii) Hewagama stated that he did not tell the
daughter that he got the altered schedule (P5) from the accused.
It was submitted that this is highly improbable since the daughter
would invariably have asked, as to how he managed to get a results
schedule different from what was originally issued and confirmed by
the letter sent after rescrutiny.

We have carefully considered these two matters in relation to the

evidence of Hewagama and the other evidence adduced by the
prosecution. Hewagama has been specifically cross examined as
regards these aspects at the trial. In relation to the first matter he
stated that since the schedule P5 was given directly by the accused
being the Deputy Commissioner, he did not think it necessary to seek
further authentication. We are inclined to accept the view expressed
by learned trial Judge that there is no improbability in this version.
The second matter relates to something what the father would have
told the daughter regarding the person who gave the fresh
schedule. Hewagama specifically stated that he did not consider it
necessary to tell the daughter as to who gave the schedule P5. These
matters have to be viewed in the background of the other evidence
of Hewagama. According to Hewagama's evidence, before the
letter P19 was received the accused informed him that the daughter
78 S ri Lanka Law Reports (1993) 1 S ri L.R.

had passed in Physics pursuant to the rescrutiny. When the

witness spoke to the accused later regarding P19, the accused said
that P19 had been sent by mistake and requested the witness to
see him with that document and the original results schedule. Viewed
in this background, we do not see merit in the submission of learned
President's Counsel that the evidence of Hewagama should have
been disbelieved by the trial Judge in view of these two matters.
On the other hand, Hewagama's evidence is supported by the
following matters

(i) Documents P19 (letter dated 31.01.1979 sent to candidate

Hewagama informing her of the results upon rescrutiny) and the
envelope in which the letter was sent (P36) were found inside a
drawer of the table of the accused at the time it was searched by
the police in the presence of witness Fonseka. These two documents
were shown to the accused when he was brought from the remand
prison on 27.11.1979. Hewagama's evidence is that he handed
over these documents to the accused prior to receiving the fresh
schedule P5.

(ii) The letter P8 addressed to the Department of Education

confirming the results of candidate Hewagama (as altered) is signed
by the accused. The explanation of the accused is that he issued
the letter on being shown a copy of the results schedule P5. However,
the significant fact is that the letter specifically confirms the altered
results. If any officer of the Examinations Department checked on
the original results schedule, for the purpose of confirmation, that
officer would invariably have discovered the unauthorised alteration
P1A. Hence the fact that the accused himself signed the letter
of confirmation, without allowing it to be done by the Certificate
Branch, according to the usual procedure, supports the position of
the prosecution that the accused made the unauthorised alterations.
On the other hand, the suggestion of the defence that Hewagama
got the alteration done by another person and sought the assistance
of the accused only to get the letter of confirmation P8 is baseless.
If Hewagama got the alteration done by another person he would
not have gone to the accused to get confirmation of the altered
result, knowing fully well that the forgery will be discovered at that
stage.
CA Nanayakkara v. The Republic o f S ri Lanka (S. N . Silva, J.) 79

(iii) The document P6 (letter dated 14.08.1979) sent by the

Department of Examinations seeking confirmation of the results of
candidate Hewagama) was also found in the drawer of the accused's
table when it was searched on 19.11.1979. According to the evidence
this being a letter sent through the official channels would have
been dealt with by the Certificate Branch. It would not have ordinarily
received the attention of the accused directly. This matter supports
the submission made by the prosecution that the accused removed
the letter from the Certificates Branch and kept it in his drawer to
prevent any person from discovering the alteration in P1A, in dealing
with P6, in the ordinary course.

(iv) The evidence of witnesses Fonseka and Gunesekera and

the defence witness Gerald de Alwis that the alterations in P1A are
in the writing of the accused.

(v) Evidence of witness Yasawathie (subject clerk) that the

schedule P5 (with reference to the serial number) had been issued
to the accused in the ordinary course.

Considering the foregoing matters we are of the view that there

is no merit in the submission of learned President's Counsel that the
evidence of Hewagama should have been disbelieved by the learned
trial Judge. The several items of evidence referred above, in our view,
clearly establish that the accused made the unauthorised alterations
in P1A. The alterations produce a result that is not borne out by
the marks of candidate Hewagama obtained in the subject of Physics
and has been made dishonestly. The guilty knowledge of the accused
in this respect is seen by the fact that he kept the documents P19,
P36 and P6 in his drawer to prevent discovery by any other person.
The fact that he took upon himself the task of signing the letter of
confirmation P8 is a clear indication of the steps taken by him to
prevent any discovery of the dishonest act. In the circumstances we
are of the view that charge No. 1 has been established beyond
reasonable doubt and that there is no error in the finding of the learned
High Court Judge in this respect.

Charge No. 2 which relates to issuing of P5, directly flows

from the unauthorised alteration P1A. Learned President's Counsel
submitted that this charge could only be established if it is
proved that the accused himself made the false document P5. This
80 S ri Lanka Law Reports (1993) ISriLR.

document is a printed results schedule in which the signature of the

Commissioner is also printed. The particulars such as the name,
index number and grades obtained are typed. This is clearly a false
document since it reflects an incorrect grade in respect of the
subject of Physics. Learned President's Counsel submitted that the
prosecution should establish that the accused himself typed out
the entries in this document. That, it is not sufficient if all what the
prosecution can establish is that the accused was responsible for this
document or caused it to be typed by any other person.

Learned President's Counsel relied on the following passage from

Gour's Pencil Law of India, in relation to the corresponding section
(464) of the Indian Penal Code

"In order to attract the application of the first part of section

464 it is necessary that the accused should make a false document
or part of a false document and not merely cause it to be made.
Making a false document is one thing and causing a false
document to be made is another.” (10th edition-vol. IV-p3904)."

We have considered the submission of learned President's

Counsel as a matter of law. The offence of forgery consists of the
making of a false document as defined in section 453 of the Penal
Code, for any of the purposes stated in section 452. Section 453
defines false document by setting out the particular process of making
the document by which the document itself is rendered false. The
three limbs of the section describe three distinct processes of
dishonest or fraudulent making, altering or causing the execution or
alteration of a document. This case involves the application of the
first limb of “making", which reads as follows :

"Firstly - who dishonestly or fraudulently makes, signs, seals

or executes a document, or makes any mark denoting the
execution of a document, with the intention of causing it to be
believed that such document or part of a document was made,
signed, sealed, or executed, by or by the authority of a person
by whom or by whose authority he knows that it was not made,
signed, sealed, or executed, or at a time at which he knows that
it was not made, signed, sealed or executed ; or"
CA Nanayakkara v. The Repbulic o f S ri Lanka (S. N. Silva, J.) 81

The passage cited by learned President's Counsel in Gour is based

on the judgment of Mitter, J. of the High Court of Calcutta in the
case of Panchanan v. The State (1). In that case, the accused
according to the evidence, had obtained the thumb impression of an
old lady on a blank paper so that he could get authority to act on
her behalf in an action filed against her. This paper was used to
make out a conveyance of the old lady's property, by another
accused. The accused who wrote out the conveyance was acquitted
and the High Court held that the conviction of the accused who
obtained the thumb impression on the blank paper cannot be
sustained because he did not make the conveyance. It is in this
context that the learned Judge made the observation that is contained
in the passage stated above. However, a perusal of other judgments
of High Courts in different States of India show that the word ''makes"
appearing in the first limb of the definition of forgery is not restricted
to the actual writing of the impugned document itself. In the case
of Siddhapa v. Lalithamma (Z) the High Court of Mysore upheld the
conviction of the accused of forgery where he had caused to be
printed, false marriage invitations issued under the names of two
persons, announcing the celebration of the marriage of the accused
with the complainant who was a young woman owning property.
Neither the complainant nor the persons under whose names
they were issued had authorised the accused to print such
invitations and in fact no marriage was fixed between the
accused and the complainant. According to the evidence the
accused caused the printing to be done, distributed these invitations
to friends and caused it to be published in the newspapers.
Balakrishnaiya, J. followed other decisions in India and held that
the word " makes " in the definition means nothing else than the
creation or bringing into existence of a document. On that basis he
upheld the conviction although the accused had only authorised the
printer, to print the document. Similar interpretations have been given
to the word “makes" by the High Court of Patna in the case of
Province o f Bihar v. Surendra Prasad(3) and the High Court of Lahore
in the case Chatru Malik v. Emperor <4). Therefore, we are of the
view that the word "makes" as appearing in the first limb of section
453 should be construed in the broader sense of creating or bringing
into existence, the impugned document and not in the narrow sense
of only writing the impugned document. Indeed, such an interpretation
is necessary in a situation where the impugned document is typed
as in this case or printed as in the Mysore case referred to above.
 82 S ri Lanka Law Reports (1993) ISriLR.

In this case there is no direct evidence as to who typed the entries

in the schedule P5. This schedule, as noted above, is the normal
form in which results are communicated. It has the signature of the
Commissioner printed on it. Thus it carries with it the authority of
the Commissioner to disclose the correct result as appearing in the
original results sheet. If an unauthorised result is entered in this
schedule the position is that the document does not have the authority
of the Commissioner but, becomes a dishonest manifestation of the
Commissioner's authority. We are of the view that the following items
of circumstantial evidence establish that the accused created or
brought into existence the schedule P5, in the form in which it
appears now

(i) the (blank) schedule is one issued to the accused for

the purposes of his official work. This was disclosed by the subject
clerk with reference to the entries in the register upon which the
forms of schedules are issued and the serial number of the schedule.
(ii) The document in the present form was given to
Hewagama by the accused at his office.
(iii) It contains the results as altered by the accused in P1A,
according to the previous finding.
(iv) Its contents are confirmed by the letter P8 signed by
the accused.

Therefore we see no basis to interfere with the conviction on

charge 2.

As regards charge 4, the prosecution adduced the evidence of

Satharasinghe being the father of the candidate. He stated that his
. son sat the G.C.E. (O .L) examination in August 1978. On receipt
of the results, he sought rescrutiny of the marks in the subjects of
Physics and French. At or about this time, he met the accused at
the house of the then Minister of Education, in connection with
another matter. Later he received letter dated 15.03.1979 (P23) stating
that there is no change in the results in Physics. However, no reply
was received regarding the rescrutiny application in the subject of
French. He contacted the accused regarding this matter and the
accused agreed to look into it. When he contacted the accused later,
the accused said that the candidate had got one mark less than the
Credit level in Physics and that he had the discretion to give that
mark. He requested the witness to see him after the rescrutiny result
is received in respect of French. Thereafter the rescrutiny result in
CA Nartayakkara v. The Republic o f S ri Lanka (S. N. Silva, J.) 83

French was received stating that the candidate had secured a Credit
in that subject. Since the accused had agreed to alter the result in
Physics by giving an extra mark, witness met the accused on 19.04.1979
with the results schedule P17 and P23 being the letter which
communicated the result upon rescrutiny, in the subject of Physics.
The accused retained these documents and issued the fresh schedule
P18 under his signature. This schedule states that the candidate
has obtained a Credit in Physics as well. The original results sheet
in respect of candidate Satharasinghe has been produced marked
P9. It shows alterations in respect of the subject of Physics and
French. In both places the letter °S" has been scored off and the
letter "C" written. The initial has been written beneath these entries.
At the bottom of the sheet it is written as follows
"Physics C - on rescrutiny
French C - on rescrutiny."

Both entries are bracketed and the accused has placed his full
signature. As stated above the accused admitted making both
alterations and the entries at the bottom.

The alterations and the entry in respect of the subject of French

is authorised since it is based upon rescrutiny. The case for the
prosecution is that the alteration in respect of Physics is unauthorised
and has been made dishonestly. The accused in giving evidence
stated that he had a discretion to add a mark in a borderline case.
His evidence in this regard was supported by the evidence of witness
Bogoda Premaratna. Both witnesses have been cross examined at
length by the prosecution regarding this aspect of the exercise of
discretion. They were not able to point to any instance where a
borderline case was singled out for special treatment. Learned trial
Judge has disbelieved the evidence of the accused and of Premaratna
regarding this aspect. We are firmly of the view that there is no
discretion in the Commissioner of Examinations to discriminate in
favour of an individual candidate on the basis that such candidate
has received marks that place him on the borderline of obtaining a
Credit. Any discretion that _ is exercised has to be done on a
generalized and a non-discriminatory basis. All candidates who have
received marks up to that level should then be given the higher grade.
The award of a higher grade, as a favour, based upon kinship,
friendship or other considerations is a negation of the rule of law,
that should strictly govern all processes of conducting public
examinations.
84 S ri Lanka Law Reports (1993) 1 S ri L.R.

Learned President's Counsel submitted that in any event the

accused cannot be considered as having acted dishonestly because
he has made the alteration in P9 and the corresponding entry, quite
openly and without any attempt to hide or conceal the authorship
of the alteration.

In other words, it was submitted that even if the discretion has

been exercised on an erroneous basis, the accused has acted bona
fide and not dishonestly. We are not inclined to accept this submission
for the reason that in the results sheet P9, the accused has stated
that the result in respect of Physics is also altered on the basis of
rescrutiny. It is not stated there that the alteration was done on the
basis of any discretion vested in the Commissioner. Thus, the cause
for the alteration as given in P9 is patently false. The accused sought
to explain this on the basis that he used the word "rescrutiny"
differently in the two instances. As regards French, he used "rescrutiny"
in the sense of rescrutiny of marks. As regards Physics, he used
“rescrutiny" in the sense of a rescrutiny of the result. There is no
basis whatever to accept such an explanation. The accused has
failed to produce the appeal which he claimed was made by
Satharasinghe nor did he produce any file containing the particulars
of an official exercise of discretion. On the other hand documents
P17 and P23 given by Satharasinghe were found by the police inside
a locked drawer of the table, in the presence of the accused. These
circumstances clearly establish that the alteration in P9 was made
dishonestly and without authority.

For the reasons stated above, we affirm the conviction on charges

1, 2 and 4 of the indictment.

As regards sentence, learned President's Counsel submitted that

the accused is 60 years old at present and has had 24 years' in
public service. It was submitted that the accused has undergone
periods of incarceration in remand up to 64 days. He further submitted
that the accused has been suffering from renal failure, hypertension
and an ischaemic heart disease. There is no evidence that the
accused is at present receiving in-patient treatment at any hospital.
On these matters learned President's Counsel submitted that the
accused should be imposed a non custodial sentence. Learned
President's Counsel also relied on the judgment of the Supreme Court
in the case of King v. Caspersz (5).
CA Nanayakkara v. The Republic o f S ri Lanka (S . N . Silva, J.) 85

Learned Deputy Solicitor-General objected to any variation of

the sentence that has been imposed. He relied on the observations
of Basnayake, ACJ, in the case of Attorney-General v. H. N. de
Silva (6) and of Sriskandharajah, J. in the case of Gomez \/s
Leelaratne m.

We have carefully considered the question of sentence in the

light of the submissions made and the judgments that were cited.
We are of the view that in assessing punishment the court has to
consider the matter from the point of both the offender and the public.
The accused has held high public office and exercised extensive
statutory power in conducting public examinations in this country.
These examinations have to be conducted fairly and the results
declared accurately. Thousands of students who face these public
examinations, every year, should have complete confidence in the
fairness and accuracy of every process of the examinations. The
accused has subverted the very basis of this confidence by his
conduct in dishonestly showing favour to persons with whom he was
acquainted. Therefore, public interest demands that he should be
imposed a deterrent punishment. We are of the view that there is
no reason whatever to interfere with the sentence imposed by the
trial Judge.

We are also mindful of the fact that the accused has stayed away
from the country contrary to the conditions imposed in granting bail.

We accordingly affirm the conviction and the sentence of 3 years'

R.l. imposed on the accused and dismiss the appeal.

D. P. S. GUNASEKERA, J. - I agree.

Appeal dismissed.