SIRIMANE, J.—Wijeratne v. The Republic of Sri Lanka
Present: Sirimane, J., Wijesundera, J. and Ratwatte, J.
WIJERATNE, Appellant and THE REPUBLIC OF SRI LANKA.
S. C. 78/74—H. C. Kurunegala 66/74
Criminal Law—Murder—Denial of a fair trial—what amounts to suchdenial—Failure of Trial Judge to refer to circumstances in favourof accused.
When an accused is facing a capital charge it is essential thatevery point in favour of the accused, though is may seem trivial,should be placed before the jury. It may well be that all suchmatters, if so placed before the jury may create a reasonable doubt jthe benefit of which the accused is entitled to. When the circums-tances against the accused are emphasised and the Trial Judgeexpresses his opinion as to the adverse inference that could bedrawn from the circumstances and fails to place the circumstancesand inferences in favour of the accused before the jury, the accusedis deprived of the substance of a fair trial.
APPEAL against conviction at a Trial before the High Court,
W. Obeysekera, for the Accused-Appellant.
T. Wickremasinghe, Senior State Counsel, for the State.
Cur. adv. vult,
June 11th, 1975. Sirimane, J.—
The appellant was convicted on a charge of murder andsentenced to death. At the conclusion of the arguments before uson 20th May, 1975 we made order setting aside the conviction andacquitting the accused-appellant. We now give our reasons forso doing.
The case against the accused-appellant rested on circumstantialevidence and one of the many grounds urged before us was that'the accused was denied the substance of a fair trial. It transpiredin the evidence led for the prosecution that the accused and thedeceased were seen by witness Gunatilleke between 7 p.m. and8 p.m. on the day of the alleged murder taking a meal, theaccused being after liquor and acting in a boisterous manner. Thenext item of evidence was that at 9 p.m. the same night theaccused engaged the car belonging to witness Somaweera. Itwas the case for the prosecution that the deceased came by hisdeath (he was found manually strangled and lying face down-*wards in a paddy field) sometime between the time that witnessGunatilleke saw the accused and the deceased together and
S5RJMANE J.—Wijeratne v. The Republic of Sri Lanka
witness Somaweera saw the accused alone. In this context thetime of death is of utmost importance. The medical evidencedisclosed that death could have taken place between 2-4 hoursafter the last meal. The evidence of Gunatilleke (who saw thedeceased having his meal) and the Doctor shows that deathmust have taken place between 9 p.m. and midnight—being theterminal hours. If the deceased had died after 9 p.m. thisaccused could not have been the person who caused his death.This was a circumstance favourable to the accused but thelearned Trial Judge did not even refer to it in his charge to theJury.
Then again the Doctor in answer to a question by the Foremanof the Jury stated that it was not possible, considering theconstitutional build of the deceased and the accused, for theaccused to have throttled the deceased alone. This was not placedbefore the Jury as a circumstance in favour of the accused. Thelearned Trial Judge having referred to this circumstanceproceeded to give the Jury a version of his opinion as to howthe accused could have strangled the deceased alone, and thusdeprived the accused of the benefit of that circumstance. Thougha Trial Judge is undoubtedly entitled to express his opinion onthe facts, still it must be exercised with caution and if an opinionis expressed as to an adverse inference that could be drawnagainst the accused, it is only fair that the attention of the Juryis also drawn to the possible inference in favour of the accused.
The medical evidence further showed that certain injuries onthe elbows of the deceased could not have been caused in thefield where the dead body was found—the relevant question andanswer given is as follows : —
Q.“ That is, the point of throttling, was quite different tothe point where the body lay ? ”
“ Most probably so. ”
This aspect of the matter was not properly placed before the Juryfor its consideration. On the other hand the learned Trial Judgein the course of his charge stated that the deceased “ died inthe field that night ”—accepting as a fact that death took placein the field. When the accused was facing a capital charge it wasessential that every point in favour of the accused, though it mayseem trivial, should be placed before the Jury. It may well bethat all such matters if so placed before the Jury may create areasonable doubt the benefit of which the accused is entitled to.When however the circumstances against the accused areemphasized and the Trial Judge expresses his opinion as to theadverse inferences that could be drawn from the circumstances
Barnes Nimalaratne v. The Republic of Sri Lanka
and fails to place the circumstances and inferences in favour ofthe accused before the Jury, the accused is deprived of thesubstance of a fair trial.
It is not necessary to consider the many other grounds urgedby learned Counsel for the defence as for the reasons mentionedabove the conviction cannot be allowed to stand. We thereforeset aside the conviction and acquitted the accused.
Wijesundera, J.—I agree.
Ratwatte, J.—I agree-
WIJERATNE, Appellant and THE REPUBLIC OF SRI LANKA Respondent