COURT OF APPEALHECTOR YAPA. J. (P/CA)
C.A. NO. 72/98
H.C. GAMPAHA 6/96
JULY 13™. 17™, 18™. 2000
Penal Code – S. 296. S. 380 – Judicature Act S. 14(b) -S. 331. 364 Codeof Criminal Procedure Act 15 of 1979 – Right of Appeal – Appeal out oftime – Exercising Revisionary Jurisdiction – exceptional circumstances■ Evidence Ordinance S. 27
The Accused Appellant and another were indicted on two counts viz:under S. 296 and S. 380 of the Penal Code and at the trial both accusedwere convicted for murder and were sentenced to death on Count one andin respect of the 2nd count to a term of seven years R.l.
The first accused did not appeal, the petition of appeal of the 2nd accusedwas out of time.
The 2nd Accused Appellant invited Court to act by way of Revision.
The power of Revision can be exercised for any of the followingpurposes viz:
(i) to satisfy the Appellate Court as to the legality of any sentence/order.
to satisfy the Appellate Court as to the propriety of any sentence/order.
to satisfy the Appellate Court as to the regularity of the proceedingsof such Court.
Revisionary jurisdiction is not fettered by the fact that the AccusedAppellant has not availed of the right of appeal within the specifiedtime.
Nlssanka v. The State
It was contended that (i) the trial Judge has relied upon a dockidentification which was not warranted (ii) that the trial Judge erred inlaw by implying guilt relying solely on information led in evidence relatingto the discovery of certain facts in terms of S. 27 Evidence Ordinance (iii)that the trial Judge failed to consider the concepts applicable to chargesbased on common intention and circumstancial evidence.
The facts elicited from the testimony of C – who identified the accusedat the trial, manifest that at the point of identification there was nocongregation of a multitude of persons in a crowd but only the twoaccused, the deceased and the witness had been present and thishappened in broad day light. Hence there cannot be any doubt.
The attendant circumstances of this case S. 27 statements, consequentto which productions were discovered not only embrace the knowledgeof the first accused and accused appellant as to these items, beinghidden in the places from which they were detected but that it wasevidence connecting them with the murder.
Per Kulatilake, J.
“If it appears that the trial Judge has applied the law in arriving at hisconclusions the Court of Appeal would not interfere simply becausehe has failed to set out the law that he has applied in express terms."
APPLICATION in Revision from the Order of the High Court of Gampaha.
Cases referred to :
Attorney-General u. Ranasinghe and others – 1993 2 SLR 81.
Regina u. Turn Bull – 1977 QB 224 at 230.
Pershadi v. State of Uttar Pradesh – AIR 1957 – SC 21 1.
Chuin Pong Shiek v. Attorney General – 1999 – 2 SLR 277 at 285.
Rex v. Cockraine – Gurneys Reports 479.
Misnagollage Srlyawathie v. Attorney General – CA 156/95 -HC Avissawella 72/92. CAM 8. 9. 1999.
King u. Seeder de Silva – 41 NLR 337.
Queen v. Seetin – 68 NLR 316 at 321.
Prematilake v. The Republic – 75 NLR 506 at 519.
Dr. Ranjith Fernando with Ms Anoja Jayaratne and Ms SandamaliMunasinghe for Accused Appellant.
Yasantha Kodagoda, S. S. C for Attorney General.
Cur. adv. uult.
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December 06, 2000.
KULATILAKA, J.In this prosecution the first accused and the second accusedwere indicted in the High Court of Gampaha on two counts:namely
that on or about 18. 11. 1991 they did commit tire murderof Gladicia Perera Wijeratne an Offence punishable underSection 296 of the Penal Code.
that at the same time and place and in the course of thesame transaction they did commit robbery of cash in a sumof Rs. 10,000/- and jewellery worth Rs. 10,000/- from thepossession of Piyasiri Jayawardena air offence punishableunder Section 380 of the Penal Code.
At the trial both accused were convicted for murder andwere sentenced to death on count one and in respect of counttwo they were found guilty and were sentenced to a term of sevenyears rigorous imprisonment. The first accused did not appealagainst his conviction and sentence imposed on him. But thesecond accused had tendered a petition of appeal which in theface of it is out of time.
The learned Senior State Counsel submitted that theaccused-appellant had failed to exercise the right of appealprovided in terms of Section 14(b) of the Judicature Act readwith Section 331 of the Code of Criminal Procedure Act No. 15of 1979. The learned High Court Judge had pronounced hisjudgment on the 19 January 1998 and the petition of appealwas filed on 11 June 1998 after a lapse of 4 months and 22days. Thus the petition of appeal is clearly out of time. Thelearned counsel who appeared for the accused – appellantconceded that the appeal was out of time but pleaded withCourt to treat it as a revision application. He submitted that thefirst accused had opted to accept the verdict of guilty and thesentence imposed on him. Although the accused – appellant
Nissanka o. The State
had conveyed his intention to appeal against the convictionand sentence owing to a lapse on the part of the assignedcounsel who appeared for him at the trial the petition of appealwas not filed within the time specified by law. Anyway there isno material before us to accept this submission. The learnedcounsel further submitted that since the accused – appellanthas been convicted for murder and sentenced to death, in theinterests of justice Court should treat his case as a revisionapplication and give him a hearing. It was submitted by thelearned Senior State Counsel that even if the accused – appellantwere to invoke the revisionary jurisdiction there wasunreasonable delay since a period of nearly 5 months haselapsed since the pronouncement of the judgment. We havecarefully considered the submissions tendered by both counsel.
The fact that the accused – appellant has not exercised hisright of appeal within the specified time by itself does notpreclude him from inviting the Court to exercise its revisionaryjurisdiction in terms of Section 364 of the Code of CriminalProcedure Act No. 15 of 1979. Under that Section the Court ofAppeal is vested with the power to call for and examine the recordof any case whether already tried or pending in the High Courtor the Magistrate Court. This power can be exercised for any ofthe following purposes; namely
to satisfy this Court as to the legality of any sentence or
order passed by the High Court or Magistrate Court.
to satisfy this Court as to the propriety of any sentence or
order passed by such Court.
to satisfy this Court as to the regularity of the proceedings
of such Court.
Hence the revisionary jurisdiction of this Court is wide andspecially directed at vesting the jurisidction in this Court to satisfyitself as to the legality or propriety of any sentence or order madeby the High Court or Magistrate Court. It gives this Court wide
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powers of review in revision. This jurisdiction is not fettered bythe fact that the accused – appellant has not availed of the rightof appeal within the specified time. (Vide the judgment ofS. N. Silva, J (as he was then) in Attorney-General u.Ranasinghe and others1". In that case a delay of 6 monthswas not considered unreasonable. Hence we have decided toconvert this appeal to one of revision.
The house where this gruesome murder had taken placewas located in Rammutugala 2 1/2 kilo meters away from theKadawatha police station. The deceased in this case GladiciaPerera Wijeratne. her husband Piyasiri Peiris Jayawardcna, theirson and daughter and the domestic help ChandrakanthiGajanayake were living there in that house. On 18. 11. 91.around 8 o'clock in the morning, the deceased Gladicia Pererawas alone in the house. By then her husband had left for work,her daughter for school. Chandrakanthi had accompanied thedeceased's son in order to help him to get on board the schoolbus. When Chandrakanthi came back home she found hermistress Gladicia Perera missing and when she went inside thehouse she found their wardrobes ransacked. Immediately shehad complained to Piyasiri Jayawardena's elder brother whowas living closeby. The police being informed had come to thehouse of the deceased and commenced investigations. Theyfound the body of the deceased inside a well about 40 yardsaway from the house. The body was identified by PiyasiriJayawardena as that of his wife Gladicia Perera.
Having recorded Chandrakanthi's statement the policewent in search of the lsl accused and the accused respondent(hereinafter referred to as the accused – appellant). By thenthey had run away from the village. In her evidence at the trialChandrakanthi Gajanayake had recounted how the 1st accusedand the accused – appellant had come to their house some daysprior to the killing on the pretext of plucking king coconutsand also she recounted their behaviour and conduct on thatoccasion. The first accused had surrendered to the Pusselawapolice station on 07. 12. 91 and consequent to a statementmade by him. Sergeant Ranatunga had recovered a gold chain,wrist watch and a red box belonging to the deceased. The
Nlssanka u. The State
, (Kulatllaka, J.)
accused – appellant had been arrested at Tundeniya, Gampolaand consequent to a statement made by him, SergeantRanatunga had recovered a purse and two keys belonging tothe deceased and her household. The prosecution has reliedupon circumstantial evidence in order to secure a conviction.
The learned counsel for the accused – appellant in hisendeavour to impugn the judgment of the learned High CourtJudge urged the following grounds:
that the learned trial Judge has relied upon a dockidentification which is not warranted in the circumstancesof this case.
that the learned trial judge has erred in law by imputingguilt relying solely on information led in evidence relating tothe discovery of certain facts in terms of Section 27 of theEvidence Ordinance.
that the learned trial Judge has failed to consider theconcepts applicable to charges based on common intentionand circumstantial evidence.
The learned Counsel asserted that evidence of identificationin regard to the accused – appellant was wholly unsatisfactory.Evidence of identification pertaining to an incident which tookplace two weeks prior to the killing comes mainly fromChandrakanthi Gajanayake. She was a domestic help of thehousehold of the deceased. She testified that the first accusedand the accused – appellant had come to the house of thedeceased two weeks previous to the killing. They were lookingfor king coconuts. By that time she knew the first accusedbecause he was working for the deceased’s husband's brotherwho was living close by. She did not know the accusedappellant at that point of time. Chandrakanthi and her mistressthe deceased had been there when the first accused and theaccused – appellant came to the house. It was the accusedappellant who had climbed the king coconut trees. When hewas on the tree in front of the house, the deceased had told thefirst accused to be careful because the bunch of king coconuts
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might fall. Inspite of that warning the accused – appellant haddropped the bunch from the tree. Thereafter the first accusedhad asked for ambarella fruits. The deceased had refused. Asthe first accused persisted in his demand the deceased hadobliged. Thereupon they asked for lime but was refused by thedeceased. The two of them then left the house saying that theywould come back later to take away the king coconuts. Around12. 30 p. m. witness had noticed the first accused and theaccused – appellant near the lavatory peeping into the house.When she called them they had again asked for lime but wasrefused by the deceased. Thereupon the first accused had madethe following utterance:
"©x3z5>(^ zssto) ©<^©25}
Which colloquially means that she will not be allowed tolive long. When all this was happening Chandrakanthi waspresent along with the deceased Gladicia Perera. At the trialwitness Chandrakanthi recognized the accused – appellant asthe person who accompanied the first accused on that occasion.
The principles laid down in Regina u. Turn Bull12' at 230are a statement of the law pertaining to situations where theidentification is made under difficult situations and uponfleeting occasions. The facts elicited from the testimony ofChandrakanthi manifest that at the point of identification therewas no congregation of a multitude of persons in a crowd butonly the first accused and the accused – appellant, the deceasedand the witness had been present and this particular episodehappened in broad day – light. Hence on that occasionChandrakanthi had unrestricted means an opportunity foridentification of the accused – appellant. Further this item ofevidence was not challenged either in cross – examination ofChandrakanthi or by the accused – appellant’s dock statement.Further witness Piyasiri Jayawardena testified that this incidentwas brought to his notice previous to his wife’s death. Hencethere cannot be any doubt that the accused – appellant wasthe person who accompanied the first accused to the deceased'shouse and plucked king coconuts two weeks previous to thekilling of Gladicia Perera Wijeratne.
Nissanka o. The State
The learned Counsel for the accused – appellant contendedthat Section 27 statements had not been properly admitted inevidence. He was referring to P6, P7 and P9. The first accusedand the accused-appellant had been represented by counsel atthe trial and when the learned prosecuting State Counsel madean application to mark in evidence these portions of thestatements in consequence of which certain items had beendiscovered by the police, no objection had been raised bycounsel. Anyway we have carefully looked into the evidencepertaining to the recording of the statements of the first accusedand the accused-appellant by the police and the discovery ofitems, namely gold chain (said to have been worn by the deceasedat the time of her death) marked as P4 the wrist watch belongingto the deceased marked P3, purse belonging to the deceasedmarked PI (which had contained certain documents) and twokeys (which were usually found in a key hole) marked P5. Ofthese items Pi and P5 were discovered consequent upon thestatement “I buried the two keys and the purse containingdocuments in my compound. I can show the place”, (vide P9)
Evidence pertaining to the discovery of these items wasdeposed to by Police Sergeant Mahadurage Ranatunga who hadarrested both accused. Further the husband of the deceasedPiyasiri Peiris Jayawardena in his evidence has identified eachof these items and also stated to Court that he had gone to thepolice station soon sifter the police had discovered these itemsand identified them. The learned Counsel tried to make out apoint that the police had recorded the statements of the firstaccused and the accused-appellant after they had discoveredthe productions. On a careful perusal and examination of theevidence led in the case pertaining to the recording of thestatements of the 1st accused and the accused-appellant andthe discovery of these items, we are satisfied that the police haddiscovered the productions consequent to the statements madeby the first accused and the accused-appellant. Therefore wedo not see any merit and substance in the submission advancedby the learned Counsel on this point.
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The evidence adduced at the trial by the prosecutiondemolishes the learned Counsel's proposition that the learnedtrial Judge had imputed guilt on the accused – appellant solelyon the evidence relating to the facts discovered consequent toa Section 27 statement. On a close examination of the evidencein the case and the judgment, we find that it is not the correctfactual position. The prosecution has established the guilt ofthe 1st accused and the accused-appellant beyond reasonabledoubt. In this regard we refer to the following facts namely,
that the first accused and the accused-appellant were alwaysseen moving together in the village. (Vide Piyasiri PeirisJayawardena's evidence at pages 45 and 46 of the record).
that the accused-appellant was in the company of the firstaccused when the first accused threatened the deceasedsaying that she will not be allowed to live long (made twoweeks previous to the crime).
that both accused had run away from Rammutugala,Kadawatha and were arrested more than 100 miles awayfrom the crime scene (first accused was arrested atPussellawa whereas the accused – appellant was arrestedat Tundeniya, Gampola).
that the police had recovered a radio from the possessionof the first accused with the receipt issued from a shop atGampola (place where the accused-appellant was arrested).
In addition the solid linking factor namely the discovery ofthe productions (wrist watch P3, gold chain P4) consequent toa statement made by the first accused and purse P1, two keysP5 discovered consequent to a statement made by the accused- appellant and such information P9 as relates distinctly to thediscovery of productions PI and P5. (Sec. 27 EvidenceOrdinance) complete the chain of events and bring to light themurderers responsible for the death of Gladicia Perera. It is to
Nissanka v. The State
be observed that the gold chain was worn by the deceased atthe time of her death. The two keys were used to lock the frontdoor and the door that separates the main house from thekitchen. Hence in the attendant circumstances of this caseSection 27 statements P6, P7 and P9 consequent to whichproductions marked P3, P4, P5, and PI were discovered notonly embrace the knowledge of the first accused and accused-appellant as to these items, being hidden in the places fromwhich they were detected but that it was evidence connectingthem with the murder of Gladicia Perera. Vide Pershadl u. Stateof Uttar Pradesh'31 .
We have already observed that the prosectuion has provedthe fact that the two vital productions namely purse marked PIand two keys marked P5 were discovered consequent to Section27 statement marked P9 which is to the effect;
“ I have buried the two keys and the purse which containdocuments in the compound. 1 can show the place" and therebyestablished that the accused-respondent had guilty knowledge.This factor by itself would cast an evidential burden on theaccused-appellant to explain away as to how he had acquiredthat knowledge. Vide the judgment of Justice Fernando in ChuinPong Shiek v. The Attorney – General141 at 285. The learnedSenior State Counsel made meaningful submissions relatingto certain circumstances that surfaced from the prosecutionevidence. He referred to the following facts namely,
that the medical evidence established that Gladicia PereraWijeratne's death was due to cranio cerebral injuries anddrowning.
that according to the post mortem report she wore a darkblue printed house -coat and a printed night dress at thetime the body was recovered, and that she was a wellnourished person.
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that an avacado pole with blood stains and some hair, wasfound close to the well where the body was found.
that three wardrobes in three separate rooms of thedeceased's house had been ransacked and items and cashrobbed.
The learned Senior State Counsel contended that theinference that one could safely arrive at from these items ofevidence would be that there was participation of at least twopersons in committing this crime.
The question arises on an evaluation and analysis of thedock statement whether the accused-appellant did attempt toexplain away the highly and cogent incriminating circumstanceselicited against him and the prima facie case established by theprosecution. In his dock statement the accused-appellant hasmerely said that he had no connection to the crime. This is abare and deficient dock statement. In view of the deficiency inthe dock statement the trial Court would be justified in drawingan adverse inference of guilt against the accused-appellant inthe circumstances of the case. Vide the speeches of LordEllenborough in Rex v. Cockrairte151 and also JusticeJayasuriya’s judgment in Misnagollage Siriyawathie v.Attorney-General161. The accused-appellant adduced noevidence and offered no explanation of the items of evidencethat incriminated him on the assumption that he was innocentof the charges levelled against him. He alone was in a positionto tell Court the circumstances in which he had the guiltyknowledge of the facts discovered consequent to the statementsmade by him and the fact of running away from Rammutugalavillage soon after the crime. Vide the decisions in King u. Seederde Silva17’ Queen v. Seetin181 at 321; Prematilaka v. TheRepublic19’ at 519.
The learned trial Judge has correctly observed at theopening paragraph of his judgment that the prosecution in this
Nlssanka v. The State
case has relied upon circumstantial evidence in order to securea conviction. Thereafter he had examined the evidence led inthe case in its totality and had come to the conclusion that theprosecution has proved its case beyond reasonable doubt. Wehave ourselves given our earnest consideration to each of thecircumstances that had arisen from the prosecution case andwe are of the considered view that items of circumstantialevidence adduced against the accused-appellant are highlyincriminating and unequivocally point to his guilt andinconsistent with any reasonable hypothesis of his innocence.Vide King v. Seeder de Silva (Supra).
Furthermore, learned counsel for the accused-appellantcomplained that in dealing with the ingredient of commonintention the learned trial Judge has failed to look into the caseof the accused-appellant separately even though he has doneso in respect of the first accused. On a perusal of the judgmentwe find at page 113 of the record that the learned trial Judgehas considered the liability of the first accused and thereafterwe find that in the next sentence there is a repetition of thecontents of the earlier sentence. If you read between the lines itis crystal clear that by an oversight or mistake the learned judgehas referred to the first accused whereas in fact the referencehas to be to the accused-appellant. This becomes still moreevident when we read the rest of the judgment that follows.
Further it is observed that the trial was conducted beforethe Judge of the High Court without a jury. Hence the Judgewas the trier of evidence. On a plain reading of his judgment ifit appears that he has applied the law in arriving at hisconclusions the Court of Appeal would not interfere simplybecause he has failed to set out the law that he has applied inexpress terms. We must not forget the fact that a High CourtJudge is a judicial officer with a trained legal mind.
It is only when there are exceptional circumstances thatthis Court would exercise its revisionary powers and interferewith the findings and such a situation would be an exception
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rather than the rule. As we have already observed the attendantcircumstances of this case would not in any way warrant us toexercise our discretion in favour of the accused-appellant. Hencewe dismiss the appeal of the accused-appellant and affirm theconviction and the sentence imposed by the learned High CourtJudge.
The learned Counsel who appeared for the accusedappellant submitted that the accused-appellant is a youthfuloffender, hence this Court should order a respite. We are of theview that it is a matter for the relevant authorities forconsideration in terms of Section 286 of the Code of CriminalProcedure Act No, 15 of 1979.
HECTOR YAPA, J. (P / CA) – I agree.
NISSANKA v. THE STATE