Mohamed Iqbal and Another v Mohamed Sally and
Another (Ranaraja, J.)
COURT OF APPEAL.
S. N. SILVA, J. P/CA.,
R. B. RANARAJAC.A. 9/82M. C. BALAPITIYAAPRIL 28, 1995.
Criminal Procedure Code – Grievous hurt – Conviction – Section 328 b (ii) – Longdelay – Since date of Commission of offence – Sentence to be confirmed after along period, after the proved offence – Factors to be considered.
The Appellant was charged with causing grievous hurt on 20.12.76. He wasconvicted on 9.2.82, to a term of 10 months rigorous Imprisonment. The appealcame up for argument on 28.4.95.
An accused has a right to be tried and punished for an offence committedwithin a reasonable period of time, depending on the circumstances of eachcase. A delay of over 18 years to dispose of a Criminal Case is much long periodby any standard, delays of this nature are generally regarded as mitigating
It appears that the Appellant has turned over a New leaf.
It is to be seen that, the appellant had spent a period of 9 months in remandcustody from 4.5.81 – 9.2.82, in connection with the instant case, there is noindication on record to show that the Magistrate had considered this matter inpassing the sentence of the Appellant.
Sri Lanka Law Reports
 2 Sri LR.
Case referred to:
1. Karunaratne v. State – 78 NLR 413.
APPEAL from the Order of the High Court of Balapitiya.
Dr. Ranjith Fernando with Ms. Vasanthi Kumari and Ms. S. Puvimanasinghe forAppellant.
D. Jayakody, S. C., for the Attorney-General
Cur adv vult.
May 30, 1995.
The appellant was charged in the Magistrate’s Court of Balapitiya,with causing grievous hurt to D. A. Ebert Silva on 20.12.76. He wasconvicted after trial and sentenced to a term of 10 months rigorousimprisonment. This appeal is from the conviction and sentence.
Learned Counsel for the appellant did not challenge theconviction. On the day the appellant was sentenced, he admittedthree previous convictions. For one or which, High Court, Galle caseNo 48, he was sentenced to a period of two years rigorousimprisonment suspended for seven years. The Magistrate directedthe accused to serve the two year sentence ordered in that case, asthe offence in respect of which the appellant was convicted in theinstant case was committed during the operating period of thatsentence. Thus in effect, the appellant had to serve a period of twoyears and ten months rigorous imprisonment in the two cases.
Learned Counsel for the appellant submitted that it is appropriate,considering the circumstances of the case, for this Court to act undersection 328 (b) (ii) of the Code of Criminal Procedure and alter thesentence imposed in the present case and make no order for theoperation of the suspended sentence imposed on the appellant bythe High Court. He urged three special circumstances which mayjustify such a course. They are (i) the delay of over18 years since thedate of the commission of the offence for the final conclusion of the
Ananda v. Attorney-General (Ranaraja J.)
case; (2) the fact that the appellant had turned a new leaf; and (3) thecharacter of the complainant in the case.
In support of the first ground, he relied on the judgment ofRajaratnam J. in Karunaratne v. The State. m In that case the accusedwas charged with committing the offence of Criminal Breach of Trustin May 1965. He was convicted in August 1972 and his appeal washeard in October 1975. Rajaratnam, J. during the course of hisjudgment observed, “I am certain that this was not a case where thesentence would have been suspended by the judge in view of thecorrect view he formed with regard to the gravity of the offence. Buton the other hand, when a deserving sentence has to be confirmedten years after the proved offence, I cannot disregard the seriousconsequences and dislocation that it can cause in the accused’sfamily. If there was a final determination of this case within areasonable time the accused by now would have served hissentence and come out of prison to look after his family. I findhowever, that the charge has been hanging over this accused for thepast ten years till it reached a conclusion before us. The effect andconsequences of this sentence cannot be totally disregarded whenthe sentence is imposed ten years after the proved offence …. Thefact that I am unable to lay my hands on any precedent does notdeter me from considering this delay in the circumstances of thisparticular case as a relevant factor for the imposition of anappropriate sentence.”
In the instant case, the accused had surrendered to Court on30.3.77. He was released on bail the following day. He failed toappear in Court on 22.6.78. The reason he gave for his failure toappear was that he went into hiding after the complainant in the casehad in the meantime caused the death of the first suspect in thecase, Chalmis, by cutting his neck. The plaint was filed on 3.8.78.Again, the appellant did not appear in Court during the period28.1.80 to 20.2.81. Trial was concluded on 9.2.82. The appellanthimself was therefore responsible for the delay of two years out of sixin disposing the case in the Magistrate’s Court. The record of thecase was thereafter received in this Court on 2.8.82. After a delay of
Sri Lanka Law Reports
 2 Sri LR.
over eleven years, the briefs in the case were ready and the appealcame up for hearing on 23.1..93. The hearing was delayed by afurther six months due to applications being made on behalf of theappellant's Counsel. Thus of the eighteen and a half year’s delay, onlya period of two and a half years could be attributable to theappellant. Vythialingam J. in Karunaratne v. The State (Supra) whileexpressing a dissenting view observed that delays of this nature aregenerally regarded as mitigating factors. An accused has a right tobe tried and punished for an offence committed, within a reasonableperiod of time depending on the circumstances of each case. Adelay of over eighteen years to dispose of a criminal case is a muchtoo long period by any standard.
Learned Counsel for the appellant at the request of Courtsubmitted three certificates, from the Grama Niladari of the areawhere the appellant is presently residing, the officer in charge of theAhungalla Police and the Viharadhipathi of Ambarukkarama Viharaya,Balapitiya. It is to be noted the plaint in the instant case was filed bythe Balapitiya Police. However, it is reported that the appellant hadnot brushed against the law since the charge of causing hurt to thecomplainant in this case. It appears that the appellant is nowmarried, living in Gunasingepura and carrying on business in theManning Market. Although the matters mentioned in the certificatesare not conclusive, prima facie it appears that the appellant hasturned a new leaf.
It was also submitted that on the evidence on record thecomplainant in the case himself is not a person of good character. Hehas admitted having caused the death of Chalmis for which he wasserving a sentence. Besides, he has been dealt with for assaultingInspector of Police Samath and stabbing one Quintin. He has alsobeen ordered to pay compensation for causing damage to aboutique. Although the conduct of the appellant cannot becondoned, it is clear that the appellant had saved himself from thefate suffered by Chalmis at the hands of the complainant, by goinginto hiding for two years.
Ananda v. Attorney-General (Ranaraja J.)
It is also noteworthy that the appellant had spent period of ninemonths in remand custody from 4.5.81 to 9.2.82, in connection withthe instant case. There is no indication on record to show theMagistrate had considered this matter in passing sentence of theappellant.
Taking all these matters into consideration we are of the view thatthe appellant should not be incarcerated for offences committed overeighteen years ago. Ends of justice will be met by substituting a termof ten months rigorous imprisonment suspended for a period of fiveyears from today and in addition, imposing a fine of Rs. 1500/- indefault of which, the appellant will serve a period of one years’rigorous imprisonment. We set aside the order of the Magistratebringing into operation the suspended term of two years rigorousimprisonment imposed by the High Court of Galle in case No. 48.Subject to the above variations, the appeal is dismissed. TheMagistrate will take steps to comply with Section 303 (4) and (6) ofthe Code of Criminal Procedure and also recover the fine of Rs 1500/-imposed by this Court, according to law.
S. N. SILVA J. -1 agree.
Appeal dismissed subject to variation.
ANANDA V. ATTORNEY-GENERAL