ATTORNEY-GENERALCOURT OF APPEALIMAM, J.
SARATH DE ABREW, J.
CA 169/2003HC GAMPAHA 48/94MARCH 12, 2008APRIL 29, 2008JUNE 16, 2008
Penal Code – Sections 296, 297 – Code of Criminal Procedure Act, No. 15 of1979 – Sections 196, 207, 204 and 436 – Retrial – Failure to read out thecharge and record a plea – Is it fatal? – Constitution Article 138, Articles13(3),13(4) – Circumstances warranting a fresh trial? – Fair Trial – AFundamental Right?
The accused-appellant along with his brother were originally indicted forhaving committed the murder of one N. After trial without a jury, the trial Judgeconvicted the accused under Section 297 and acquitted his brother. Theappeal lodged by the accused-appellant was upheld and a retrial was ordered.
At the conclusion of the retrial – without a jury – the trial Judge convicted theaccused-appellant under Section 296 and sentenced him to death.
In appeal it was contended that (1) the indictment and the charge had not beenread out to the accused and a plea recorded at the second trial (2) the chargehad not been appropriately amended at the second trial, deleting the name ofthe other accused who had been acquitted (3) in view of the infirmities and theunsatisfactory nature of the only eye witness, the conviction could not stand.
On a plain reading of Sections 196, 197 and Sectionsl 98, 204 of the Code,in a High Court trial with or without a jury, it is abundantly clear that (1) theindictment containing the charge/charges shall be read over and explainedto the accused, irrespective of the fact whether he is defended by Counsel
the plea of guilty or not guilty shall be obtained and recorded, unless herefused to plea.
A retrial is not a continuation of the abortive first trial, but a distinct andseparate trial where the mandatory provisions of the Criminal ProcedureCode have to be adhered to.
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Compliance of the provisions of Section 196 of the Code at the trial does notdischarge or absolve the trial-judge from desisting in his duty to comply withthe mandatory provisions at the second trial.
Per Sarath de Abrew J.
“Section 436 of the Criminal Procedure Code and Article 138 of theConstitution cannot be regarded as a panacea for all ills especially where thefundamental mandatory provisions are blatantly disregarded which wouldoccasion a failure of justice."
It is a fundamental right of an accused to be entitled to a fair trial inaccordance with the procedure established by law in accordance withArticle 13(3) and Article 13(4) of the Constitution.
Section 207 of the Code provides for an accused to plead not guilty to thecharge presented in the indictment, but to plead guilty to a lesser offence;the non-compliance of Section 196 would have denied this opportunity tothe accused, which would become a failure of justice.
In view of the infirmities and the unsatisfactory nature of the evidence ofthe eye-witness the circumstances do not warrant a fresh trial; twentyyears have already elapsed since the incident in 1988. The appellant hadundergone the hazards of two High Court trials already.
Per Sarath de Abrew, J.
"As the appellant has already undergone eight years of incarceration, I amsatisfied that the ends of Justice have been already met".
APPEAL from the judgment of the High Court of Gampaha.
Dr. Ranjith Fernando with Ms. Chanya Perera for accused-appellant.
Palitha Fernando PC Addl. Solicitor-General with Rohantha Abeysuriya SSCfor Attorney-General.
December 5, 2008
SARATH DE ABREW, J.The present accused-appellant (2nd accused), along with hisbrother Amaratunga Arachchige Nihal Padmasiri (1st accused),originally were indicted before the High Court of Gampaha for havingcommitted the murder of one Wijesinghe Pedige Nimal on 13.05.1998at Halwatha, Keerithitha under Section 296 of the Penal Code. Aftertrial without a Jury, the learned High Court Judge acquitted the 1staccused and convicted the 2nd accused, the present accused-appellant, under Section 297 of the Penal Code for culpable homicide
QAAttorney-General (Sarath de Abrew, J.)37
not amounting to murder on the basis of sudden fight and sentencedthe Accused-Appellant to a term of 05 years imprisonment.
The Accused-Appellant (hereinafter sometimes referred to as theappellant) appealed to this Court against the conviction and sentenceand the Court of Appeal ordered a re-trial in CA No. 207/96, on thebasis that there had been a complete failure to elicit from the doctorwho gave evidence as to whether the injuries would constitute a greatantecedent probability of death resulting as opposed to a merelikelihood. At the conclusion of the re-trial by the Gampaha High CourtJudge without a jury, the learned trial Judge on 23.10.2003 convictedthe appellant under Section 296 of the Penal Code for the offence ofmurder and sentenced him to death. Being aggrieved of the above,
the Appellant has preferred the present Appeal against the above
conviction and sentence.
The facts pertaining to this case may be set out briefly as follows.This incident had occurred around 7.30 p.m. on 13.05.1998 atHalwatta, Keerithitha in Weliveriya Police Area. The Appellant Wimal,his younger brother Nihal (who was acquitted as the 1st accused inthe original trial) and their mother Yasawathi lived in close proximity tothe cadjan hut of the deceased, where the deceased Nimal, his elderbrother Sunil and elder sister Ranjani, who were witnesses for theprosecution and the husband and children of Ranjani were residing.According to the main witness Ranjani, elder sister of the deceased,on the day of the incident the appellant and the deceased have hadlunch together at Ranjani's house and both of them had gone togetherto have a bath. Towards evening that day, Ranjani, on hearing a noiseof a quarrel from the direction of the house of the appellant, hadrushed there to investigate. The accused-appellant (Lokka) and hisyounger brother (Rala) had been present there along with thedeceased. Ranjani had implored on them not to harm the deceased.Inspite of her pleas, the younger brother of the appellant (Rala) hadstabbed the deceased with a knife and as the deceased fell down, theappellant had repeatedly dealt blows on the deceased with a longknife like weapon. Thereafter a police jeep had arrived at the sceneand removed the deceased to the Gampaha Hospital where he waspronounced dead. Elder brother of the deceased, Wijesinghe PedigeSunil too had given evidence to the effect that on hearing cries ofRanjani that the deceased was being done to death, he too rushed to
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the scene to find his brother the deceased fallen on the groundopposite the house of the appellant with severe bleeding injuries,while the accused-appellant was standing there with a weapon like along knife or a katty. Thereafter the villagers had gathered there withtorches to dispel the darkness while Ranjani had wept embracing thefallen deceased.
Then Officer-in-Charge, Weliveriya Police Station retired Inspectorof Police Ratnayake had given evidence as to visiting the scene thefollowing day morning and recovery of the knife P2. I.P. Dharmadasa,then a Sub-Inspector attached to Weliveriya Police, on mobile dutythat fateful night, had given evidence to the effect that on receipt of amessage from the Police Station, he arrived at the scene by 10.30p.m. that night and removed the deceased in the jeep to GampahaHospital where the deceased was pronounced dead. Dr. AsokaPremaratne, then DMO Gampaha, had produced the Post-MortemReport and given evidence to the effect that there were 10 externalinjuries on the face and right side of the neck of the deceased out ofwhich 09 injuries were cut wounds. The Post-Mortem Report (P5) haddisclosed that the cause of death was due to shock and hemorrhagefollowing flow of blood to the brain due to multiple cut injuries.
After the closure of the prosecution case, the appellant has madea dock statement denying complicity to the effect that he returnedfrom Ambatale that evening around 11 p.m. having gone there forwork to give manual help for masonry work. On his return he went tothe house of his grandmother who had informed him that the thedeceased had attempted to rape his mother whereupon his youngerbrother had attacked the deceased. The mother Yasawathi, who hadgiven evidence for the defence to the above effect at the first trial, hadfailed to do so at the second trial.
The learned trial Judge had rejected the plea of alibi, and also themitigatory pleas of sudden fight and grave and sudden provocation,and convicted the appellant for the offence of murder under section296 of the Penal Code.
At the hearing of the Appeal, the learned Counsel for the appellantraised the following grounds in support.
(1) The indictment and the charge had not been read out to theaccused and a plea recorded at the second trial.
CAAttorney-General (Sarath de Abrew, J.)
The charge on the indictment had not been appropriatelyamended at the second trial, deleting the name of the 1staccused in the first trial, who had been acquitted.
(a) The evidence of the main witness Ranjani was unreliableas she had categorically told the police that the deceased wasattacked with a club (V4) and at the first trial too she had statedthe same (V1).
Witness Sunil too had told the police that his sister Ranjanihad told him that deceased was attacked with a club (page217).
I.P. Ratnayake had recovered a blood stained piece offirewood (P4), which had not been sent to the GovernmentAnalyst.
Ranjani had also testified that the brother of the presentappellant, (who had been acquitted at the first trial) who hadgiven the first information to the police about the incident, toohad attacked the deceased with a bread knife. Therefore thedefence contended that the evidence of the prosecutionwitnesses were unsatisfactory as to the vital aspect as to thenature of the weapon used.
The alibi adduced by the appellant had not been given dueconsideration by the learned trial Judge.
In any event the conviction for the offence of murder was notjustifiable as the evidence disclosed mitigatory pleas of graveand sudden provocation and/or sudden fight.
I have carefully perused the Information Book Extracts, the totalityof the proceedings and the written submissions adduced by bothsides. I now propose to examine the main contention adduced onbehalf of the appellants as to the failure to read out the charge to theaccused-appellant and record a plea at the commencement of thesecond trial which would have a conclusive effect in deciding thisappeal.
The mandatory provisions of Section 196 (Trial without a Jury) andSection 204 (Trial bv Jury) of the Code of Criminal Procedure Act. No.15 of 1979 with regard to the arraignment of accused persons at thecommencement of a trial before the High Court read as follows:-
40Sri Lanka Law Reports[2008) 2 Sri L.R
"When the Court is ready to commence the trial the accused shallappear or be brought before it and the indictment shall be read andexplained to him and he shall be asked whether he is guilty or notguilty of the offence charged."
Section 197 of the Code further provides that “If the accusedpleads guilty and it appears to the satisfaction of the Judge that herightly comprehends the effect of his plea, the plea shall be recordedon the indictment and he may be convicted thereon."
Section 198 of the Code also provides that "if the accused does notplead or if he pleads not guilty, he shall be tried."
On a plain reading of the above provisions of the CriminalProcedure Code, in a High Court trial with or without a Jury, it isabundantly clear that the following mandatory requirements have tobe fulfilled before a verdict is entered. The use of the word shall inSection 196 of the Code, to my mind, is not merely directory butmandatory, and confers jurisdiction to try the accused only aftercompliance of this mandatory provision.
The indictment containing the charge or charges should beread over and explained to the accused, irrespective of the factwhether he is defended by Counsel.
His plea of guilty or not guilty should be obtained andrecorded, unless he refused to plead.
A perusal of the proceedings of 15.10.1999, 22.02.2000,24.07.2000, 21.06.2001,12.11.2001, and finally 29.09.2003 on whichdate the second trial commenced before the High Court of Gampahadisclose that the learned trial Judge had failed to comply with themandatory provisions of Section 196 of the Code as stated above.(Pages 182-187 of the Record). It is most unfortunate that the learnedtrial Judge had failed to perform his sacrosanct duty in this regard.
The learned Additional Solicitor-General endeavoured tocircumvent this procedural disaster by taking refuge under the provisoto Article 138 of the Constitution which reads as follows: "Providedthat no judgment, decree or order of any Court shall be reversed orvaried on account of any error, defect or irregularity, which has notprejudiced the substantial rights of the parties or occasioned a failureof justice. "The learned Additional Solicitor-General, though conceding
, Sarathchandra v
CAAttorney-General (Sarath de Abrew, J.)41
that the reading of the charge to the accused in the second trial wasnecessary, submitted that the failure to do so would constitute only aprocedural irregularity, as the accused was already familiar with thecharge as it had been read over to him at the abortive first trial, andtherefore it cannot be said that this irregularity caused materialprejudice to the accused which occasioned a failure of Justice.
I am unable to agree with the above contention of the learnedAdditional Solicitor-General for the following reasons.
A re-trial is not a continuation of the abortive first trial,but a distinct and separate trial where the mandatoryprocedural provisions of the Criminal Procedure Codehave to be adhered to. Compliance of the provisions ofSection 196 of the Code at the first trial does notdischarge or absolve the learned trial Judge fromdesisting in his duty to comply with this mandatoryprovision at the second trial. Further, this argumentcannot hold water as the accused is always informed ofthe charge at the Non-summary Inquiry, and this cannotbe regarded as an excuse for not reading out the chargeand recording his plea at the High Court trial.
Section 436 of the Code of Criminal Procedure, Act No.
15 of 1979 and the proviso to Article 138 of theConstitution quoted above cannot be regarded as apanacea for all ills, especially where the fundamentalmandatory procedural provisions are blatantlydisregarded which would occasion a failure of justice.
It is a Fundamental R ight of an accused person to beentitled to a fair trial in accordance with procedureestablished by law, in accordance with Article 13(3) and13(4) of the Constitution. In the absence of the chargebeing read out to the accused and his plea recorded, itis unfair and unreasonable to subject an accused personto a trial where he would be handicapped as to givingproper and necessary instructions to his defendingCounsel and preparing his defence. As this was a retrial,and not a fresh trial, there was no serving of theindictment on the accused, in which event, there is
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nothing on record to indicate that the accused wasaware of the details of the indictment.
Further Section 207 of the Code provides for an Accusedperson to plead not guilty to the charge presented in theindictment, but to plead guilty to a lesser offence. In thiscase, if the accused-appellant was willing to plead guiltyto the lessor offence of culpable homicide not amountingto murder under Section 297 of the Penal Code on thebasis of grave and sudden provocation or sudden fight,the non-compliance of the provisions of Section 196 ofthe Code would have denied this opportunity to theaccused, which would occasion a failure of justice.
In the present case, there was a duty cast on the learned trialJudge to delete the name of the 1 st accused who was acquitted in thefirst trial and amend the indictment accordingly and then comply withthe provisions of Section 196 of the Code and read out the amendedcharge to the present accused-appellant. I am satisfied that the failureto do so has occasioned a failure of justice. Non-compliance ofSection 196 of the Code is not a mere technical irregularity but afundamental defect which would vitiate the conviction and sentence.
I have also perused the totality of the evidence in this case and inview of the infirmities and unsatisfactory nature of the evidence of theonly eye-witness Ranjani, I am satisfied that the circumstances do notwarrant ordering a fresh trial. Twenty years have already elapsedsince the incident in 1988. The appellant had undergone the hazardsof two High Court trials already. As the appellant has alreadyundergone eight years of incarceration, l am satisfied that the ends ofjustice have been already met, taking into consideration all aspectsled in evidence in this case.
In view of the above the main contention adduced on behalf of theappellant should succeed. In the event, I do not propose to examinethe other contentions in detail, as it would be a futile exercise.
For the foregoing reasons, I allow the Appeal of the appellant andset aside the conviction for murder under Section 296 of the PenalCode and the consequent death penalty imposed on the appellant bythe learned High Court Judge of Gampaha dated 13th May 1998 andacquit the accused-appellant.
Romesh Cooray v
$cJavalath. Sub-Inspector of Police and others
The Registrar is directed to inform the Prison authoritiesaccordingly and to send a copy of this Judgment to the High Court ofGampaha forthwith.
IMAM, J.- I agree.
Conviction set aside.
SARATHCHANDRA v. ATTORNEY-GENERAL