Sri Lanka Law Reports
 3 Sri L.R.
WEERAWARDENE AND PjVO OTHERS
COURT OF APPEAL.
GUNASEKERA, J. (P/CA) ANDDE SILVA, J.
C. A. 77-79/95.
C. HAMBANTOTA 09/95.
JULY 07, 1997.
Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 as amended -Section 32 Penal Code – Section 32(2) Evidence Ordinance – Admission of apurported Post Mortem Examination Report with rough notes – Violation of section414 of the Code of Criminal Procedure Act – Evidence of sole witness tainted withinfirmities – Applicability of section 315 – Criminal Procedure Code.
The learned trial Judge erred in law in admitting a purported Post MortemExamination Report which contained some rough notes made by the DMOwho was dead at the time the trial was taken up. This evidence led throughanother witness is in violation of section 414 of the Code of Criminal ProcedureAct.
“It is regretted to observe that Rekawa Karune who is referred to by witnessEdwin carrying an iron spike, had not been made an accused nor is there anyreference made to him in the body of the Indictment that the three accusedappellants had committed this offence along with Rekawa Karune. Some of theinjuries that were found on the body of the deceased, specially the five stabinjuries which had pierced the lung can be attributable to having beingcaused by a pointed weapon like a spike''.
In the absence of any reference made to Rekawa Karune in the body of theindictment as a person with whom the appellants committed this crime, theprinciples of vicarious liability under section 32 Penal Code cannot be attributedto the 1st and 2nd accused-appellants.
There is no direct or circumstantial evidence to implicate the 3rd accused-appellant. The prosecution had failed to establish which of the injuries that were
Weerawardenc and Two Others v. Attorney-General
(Gunasekera J. (P/CA))
found on the body of the deceased were caused by the 1st and 2nd accusedappellants.
APPEAL from judgment of the High Court of Hambantota.
Case referred to:
King v. Aranolis – 44 NLR 370.
Dr. Ranjith Fernando with Ms. Kishali Pinto-Jayawardena for 1st and 2ndaccused-appellants.
Ranjith Abeysuriya, P.C., with Ms Priyadharshani Dias and Ms. MrinaliThalgodapitiya for 3rd accused-appellant.
Kapila Waidyaratne S.S.C. for Attorney-General.
Cur. adv. vuit.
July 08, 1997.
GUNA5EKERA, J. (P/CA)
In this case the three accused-appellants were indicted withhaving caused the death of a specified person, to wit: policeconstable 1655 Weerasinghe Arachchige Lionel on or about 1stDecember, 1988 by causing injuries with knives and sharp cuttingweapons punishable under section 2(1) (a) read with section 2(2) (1)of the Prevention of Terrorism (Temporary Provisions) Act No. 48 of1979 as amended and section 32 of the Penal Code.
After trial before a judge of the High Court the accused-appellantswere found guilty of the offence and sentenced to life imprisonment.
According to the facts as stated and testified to by WeerasingheArachchige Edwin, the father of the deceased, his son the deceasedwas attached to the Hungama Police Station as a Reserve PoliceConstable, which police station was about 1/2 a mile away from hisresidence. At about 6.30 in the morning on 01.12.1988 after hismorning ablutions when he came with a bucket, he had heard ashout “(joe&. qo£fi”. He had identified the voice as that of his son andproceeded in the direction from where the shout came along the
Sri Lanka Law Reports
 3 Sri LR.
main road. As he came along the main road he claims to have seenthe 3rd accused armed with a knife coming in the opposite directionon a bicycle. He had passed him without any incident and hasproceeded towards Hungama he had seen the 1st and 2nd accused-appellants along with a person by the name of Rekawe Karunedragging his deceased son who was injured, towards theembankment near the Hatagala culvert. On seeing him the accused-appellants had run away. He had immediately gone to the HungamaPolice Station and made a complaint to Inspector Ekanayake whowas the O.I.C. of the Hungama Police Station. Inspector Ekanayakealong with a police party and Edwin had come in a police jeep to theplace where the injured, was fallen and taken him in the jeep to theTangalle hospital. According to Inspector Ekanayake before theypassed the Hungama town he had got the impression that thedeceased had succumbed to the injuries. At the hospital thedeceased had been pronounced dead upon admission. InspectorEkanayake had made a note and directed police sergeantHettiarachchi to proceed with the investigations since InspectorEkanayake had to be in Hambantota to attend a meeting with the co-ordinating officer. From the Tangalle hospital Edwin had gone back tothe police station and made a formal complaint at 8.20 in themorning. In that statement he had implicated the 1st and 2ndaccused along with Rekawa Karune and he had referred to the 3rdaccused riding a bicycle towards his direction armed.
The post mortem on the body of the deceased Lionel apparentlyhad been conducted by Dr. Ranjan Abeysekera who was the D.M.O.of the Tangalle hospital. The deceased according to the medicalevidence had several stab injuries on the front side of the chest, theback of the right upper arm, on the head and cut injuries on the backof left chest and acid burns on the right loin area. The cause of deathhad been due to cardio respiratory failure following multiple injuries tothe chest which had pierced his lung.
At the hearing of this appeal Dr. Fernando appearing for the 1stand 2nd accused-appellant submitted that the learned trial Judge
Weerawardere and Two Others v, Attorney-General
(Gunasekera J. (PICA))
had erred in law in admitting a purported Post Mortem Examinationreport which according to Dr, Mahinda contained some rough notesmade by Dr. Abeysekera who was dead at the time the trial wastaken up. It is the evidence of Dr. Mahinda that he had recoveredsome rough notes made by Dr. Ranjan Abeysekera from a drawer ofthe hospital after receiving summons, he himself had made someentries including the cause of death and signed the said report at thetime he gave evidence at the trial. We are in agreement with learnedCounsel for the 1st and 2nd accused-appellants that this evidencewhich was led through Dr. Mahinda, had been in violation of theprovisions of section 414 of the Code of Criminal Procedure Act. Weare also of the view that the notes made by Dr. Ranjan Abeysekeracould have been properly admitted in terms of section 32(2) of theEvidence Ordinance as they contained contemporaneous notesmade by a public officer in the discharge of his professional duties.
Dr. Fernando also contended that it was not safe to have acted onthe evidence of the sole witness Edwin whose evidence has beentainted with a number of infirmities. The learned trial judge in hisjudgment has considered Edwin to be an eye witness to the incidentwhen in fact the evidence of Edwin is that when he went in thedirection of the Hatagala culvert after hearing the shout of his son“cro6». cjooy. that he had seen the 1st and 2nd accused-appellantsalong with Rekawa Karune dragging the deceased who was injured,by his legs towards the embankment. No where in the evidence doesEdwin say that he saw a single injury being inflicted by anyone of theaccused-appellants (or Rekawa Karune who was not indicted) on thebody of the deceased and accordingly Edwin could not in our viewhave been considered to have been an eye witness.
Edwin claims to have seen an axe in the hand of the 1st accused-appellant, a kris knife in the hand of the 2nd accused and an ironspike in the hand of Rekawa Karune. The injuries found on the bodyof the deceased appeared to be consistent with having being causedby sharp pointed weapons like a kris knife or an iron spike whichinjuries had resulted in death.
Sri Lanka Law Reports
f 1997} 3 Sri L.R.
Although the indictment against the three accused-appellants hadbeen prepared and forwarded by officers attached to a special unit inthe Attorney-General's Department. It is regretted to observe thatRekawa Karune who is referred to by witness Edwin had not beenmade an accused nor is there any reference made to him in the bodyof the indictment that the three accused-appellants had committedthis offence along with Rekawa Karune. Some of the injuries that werefound on the body of the deceased specially the five stab injurieswhich had pierced the lung can be attributable to having beingcaused by a pointed weapon like a spike. In the absence of anyreference made to Rekawa Karune in the body of the indictment as aperson with whom the appellants committed this crime, the principlesof vicarious liability under section 32 of the Penal Code cannot beattributed to the 1st and 2nd accused-appellants, and there is noevidence that the 3rd accused-appellant had participated in thecrime as according to the evidence of Edwin, the 3rd accused-appellant had happened to come along the road on a bicycle armedwith a knife. There is no direct or circumstantial evidence to implicatethe 3rd accused-appellant. The prosecution has failed to establishwhich of the injuries that were found on the body of the deceasedwere caused by the 1st and the 2nd accused-appellants. This beingthe state of the evidence one cannot say with certainty as to which ofthe injuries were inflicted by the 1st and 2nd accused-appellants.Had the fatal injuries been caused by Rekawa Karune since he hasnot been made an accused, his acts cannot be attributed in our viewto the 1st and 2nd accused-appellants. The medical evidence doesnot say that apart from the five stab injuries which had pierced thelung that any of the other injuries that were found on the body werefatal in the ordinary course of nature or were fatal.
Learned Counsel for the 1st and 2nd accused-appellants hasdrawn our attention to the case King v. AranoliS" which held that“where in a charge of murder the case was presented to the jury bythe Crown on the basis that two persons committed the offencein furtherance of a common intention and there was no evidenceupon which the jury could say there was a common intention orthat the one or the other inflicted the injury, which resulted in the
Weerawarder<, and Two Others v. Attorney-General
(Gunasekera J. (P/CA))
death of the deceased, that a conviction, for murder could not besustained".
We are inclined to agree with the principles set out in the judgmentcited by learned Counsel.
Mr. Ranjith Abeysuriya President's Counsel appearing on behalf ofthe 3rd accused-appellant submitted that even if the evidence ofEdwin was accepted in toto that there is nothing in his evidence toimplicate his client and the learned trial Judge should haveconsidered the case of the 3rd accused separately from that of the1st and 2nd accused-appellants. We are in agreement with thiscontention of learned President's Counsel.
From the record it appears that although the date of offence is
that the 3rd accused had surrendered on 02.01.1990, the1st in January 1992 and the 2nd was arrested in September 1992. Itis also to be observed that this case had come up in the Magistrate’sCourt of Hambantota on more than 80 occasions commencing from
and during that period that the three accused-appellantshad been sent for rehabilitation by the Jayalath Commission and theyhave been in custody from the date the 1st and the 3rd accusedsurrendered and the date the 2nd accused was arrested. Havingregard to the submissions made by learned Counsel and theevidence led we are of the view that there is no basis upon theevidence to have found the 3rd accused-appellant guilty of anyoffence. Therefore we set aside the conviction of the 3rd accusedand the sentence of life imprisonment imposed on him and acquithim.
In regard to the 1st and 2nd accused-appellants we are of theview on the evidence of Edwin which had been accepted by thelearned trial Judge that they could have been found guilty of anoffence punishable under section 315 of the Penal Code. Thereforewe set aside the conviction of the 1st and 2nd accused-appellantsfor murder and the sentence of life imprisonment imposed on them.
Sri Lanka Law Reports
(1997} 3 Sri L.R.
We find 1st and 2nd accused-appellants guilty of an offence undersection 315 of the Penal Code. Taking into consideration the period ofincarceration of the appellants we impose a term of 2 years RigorousImprisonment on the 1st and 2nd accused-appellants and suspendthe operation of that sentence for a period of 7 years. Learned HighCourt Judge is to comply with the provision of section 303(4) and (6)of the Code of Criminal Procedure Act. Subject to this variation theappeal of the 1st and 2nd accused-appellants are dismissed. Theappeal of the 3rd accused-appellant is allowed.
J. A. N. DE SILVA, J. -1 agree
1st and 2nd accused appellants – sentence vaired.
3rd accused appellant – acquitted.
WEERAWARDENE AND TWO OTHERS v. ATTORNEY-GENERAL