Law-Report-Part-14.pdf

Editor-in-Chief : L. K. WIMALACHANDRA
Additional Editor-in-Chief : ROHAN SAHABANDU
PUBLISHED BY THE MINISTRY OF JUSTICE
Printed at M. D. Gunasena & Co. Printers (Private) Ltd.
Price: Rs. 25.00
D I G E S T
Page
PENAL CODE SECTION 102, 113A – Opium and Dangerous Drugs 382
Ordinance Section 54 (A) d – amended by Act 13 of 1984 Importation
–traffcking – Heroin – Defence of Alibi – Dock statement – Assessment
of evidence on a wrong premise? – Ellenborough principle – Applicability
– Evidence ordinance – Section 114(f)
Fernando and 5 others vs. State
(Continued in Part 15)
PENAL CODE- Section 300, Section 383 – Identifcation – Delay in hold- 365
ing – Unlawful detention in Police custody? – Evidence Ordinance
Section 27, Section 54, Section 114(d) – Dock statement – Evalua-
tion – Can a conviction be sustained under a section which does not
create an offence – Best Evidence Rule – Constitution Article 13 (3)
Roshan Vs. The Attorney General
(Continued from Part 13)

Roshan Vs. The Attorney General
CA (Sarath De Abrew, J.) 365
(2) Offending item of bad character evidence has crept into the record
and formed part of the proceedings. This is extremely prejudicial to
the interest of the accused, and would adversely affect the right of
an accused to a fair trial. The nature of the bad character evidence
admitted has a direct bearing on the question of the accused
having a violent disposition and being branded as a notorious
criminal.
(3) The trial Judge has made no effort to make a genuine judicial
analysis of the contents of the dock statement and give cogent
reasons for rejecting same in his endeavour to determine whether it
it would create a reasonable doubt in the prosecution case.
(4) The trial Judge has failed to elicit from the Doctor whether the
injuries on the complainant constituted a very great antecedent
probability of death as opposed to a mere likelihood of causing
death, which is a sine qua non in maintaining a charge of attempt-
ed murder under Section 300.
Per Sarath de Abrew.J
“The robbery charge is defective as Section 383 is not a section that
creates an offence. The State Counsel and the learned trial Judge
have neglected to amend this charge appropriately to be read with
Section 380”.
AppeAl from the judgment of the High Court of Gampaha.
Cases referred to:-
1. A.G. vs. Viraj Apponso – SC 24/2001
2. Nissanka v. State – 2001 – 1 Sri LR 78
3. Keerthi Bandara v. A.G. – 2002- 2 Sri LR 245
4. AG vs. W.J. Aloysius and others – CA 1700/84- CAM 3.9.1992
5. Regina vs. Turnbull and another – 197- QB 224 at 228
6. W.A. Fernando vs. Queen 76 NLR 265
7. Wijepala vs. A.G.- 2001 (1) Sri LR 46
8. A.G. vs. K.M. Premachandra and two others- CA 39-41/97
9. In Re Gunarathna Banda – Law of Evidence E.R.S.R. Coomaras-
wamy Vol.1

366 Sri Lanka Law Reports [2011] 1 SRI L.R.
10. Heenbanda vs. Queen – 1969 SC – 113/68
11. Perera vs. Naganathan 66 NLR 438
12. Coomaraswamy vs. Meera Saibo – 1940 SLLJ 68
13. R vs. Ranasinghe- Sc 45/1975- SCM 14.8.1975
14. Gunapala and others vs. Republic of Sri Lanka- CA 23/26-92
15. AG vs. Somadasa- CA 32/78
16. J.P.A. Sri Kantha and 5 others vs. A.G.- CA 42-47/97
17. Wickramaratne vs. Chandradasa – 67 NLR 150
18. L.C. Fernando vs. Republic of Sri Lanka – 79 (2) NLR 313 at 377
Rienzie Arsecularatne PC for accused-appellant
Vijith Malalgoda DSG for respondent.
September 14th 2011
SArAth De Abrew, J.
The accused-appellant was indicted in the High Court of
Gampaha on the following counts:
(1) Causing injury to P.P. Amarasena which is suffcient
to cause death in the ordinary course of nature on or
before 11th March 1998 and thereby committed an offence
punishable under section 300 of the Penal Code.
(2) Robbery of a van bearing Registration No.56-5591 from
the custody of P.P. Amarasena whilst being armed with
a deadly weapon and thereby committed an offence
punishable under section 383 of the Penal Code. After
trial without a jury the learned trial Judge had con-
victed the appellant on both counts on 28.10.2004 and
sentenced him to 20 years rigorous imprisonment and

Roshan Vs. The Attorney General
CA (Sarath De Abrew, J.) 367
a fne of Rs. 10,000 on each count. Being aggrieved of
the aforesaid conviction and sentence, the appellant had
preferred this appeal to this Court.
The prosecution case rested mainly on the evidence of
the complainant, the only eyewitness, and his identifca-
tion of the accused. The medical offcer who attended to the
injuries on the complainant was not called, but the DMO,
Wathupitiwela Hospital, who subsequently examined the
injured and submitted the medico-legal Report (P5) was called
to give evidence. This was followed by offcial witnesses who
conducted and participated at the Identifcation Parade held
on 06.08.98 exactly 50 days after the incident. Police wit-
ness who conducted investigations, arrested the accused and
recovered the van have given evidence for the prosecution
followed by the evidence of the owner of the van and that of
the interpreter mudaliyar of the Attanagalle Magistrate Court
with regard to the non-summary inquiry. After the conclu-
sion of the prosecution case the accused had not called evi-
dence but confned his defence to lengthy exculpatory dock-
statement where he has taken up the position that he was
arrested by the Mirigama Police on 15.03.98, before the date
of the alleged offence, and kept in Police custody till 24.03.98
without being produced before a Magistrate and that he was
pointed out to the complainant whilst in custody before the
identifcation parade.
The facts pertaining to this case are briefy as follows:
The complainant Amarasena was a hiring driver of van
bearing registered No. 56-5591 belonging to one Jayaratne.
On the day in question, 17th March 1998 morning, as usual,
he had taken the van to the vehicle park in Giriulla town
where the alleged accused and another person had hired his

368 Sri Lanka Law Reports [2011] 1 SRI L.R.
vehicle and gone from place to place to several houses till
afternoon. They had appeared to the complainant to be men
collecting money from houses to send people abroad. A third
person too had joined them later and around 3 p.m. that
afternoon, the other two persons had alighted from the van
leaving only the alleged accused with the complainant driver.
On the request of his assailant, the complainant had driven
the van to a desolate area in a coconut estate close to the
Wathupitiwela Hospital. On the request of his assailant, who
was then seated in the front seat to stop the van to answer a
call of nature, the complainant had responded and stopped
the van. Whereupon, the assailant had suddenly started
stabbing the driver repeatedly with a knife. The complainant
had grabbed the blade of the knife and struggled with
his assailant to ward off the blows. The assailant had jumped
out from the left front door of the van and run round the
vehicle followed by the complainant to escape further injury.
Thereupon the assailant had got into the van to the drivers
seat and driven the van away leaving the bleeding complainant
stranded. The complainant had staggered off to an offcer near
a water tank in close proximity and sought help whereupon he
was rushed to Wathupitiwala Hospital for treatment where the
bleeding was arrested and his wounds sutured by the medical
staff. The complainant had been later examined by the
D.M.O, Wathupitiwala who had submitted the medico-legal
report (P5) based on the notes of the medical staff without
reopening the sutures and described 09 non-grievous stab
injuries on the front, left and right side of the body while
stating that injuries Nos. 1 and 2 were suffcient in the
ordinary course of nature to cause death if medical treatment
was not made available speedily. While at the Hospital, the
complainant had made a statement to Nittambuwa Police

Roshan Vs. The Attorney General
CA (Sarath De Abrew, J.) 369
describing his assailant as a fair person with curly hair, of
around 5 feet 4 inches in height and of normal build.
According to the prosecution, the accused had been
arrested by the Mirigama police on 20.03.98 in connec-
tion with other matters and on recording his statement
subsequently on 24.03.98, the knife (P2) allegedly used to
commit the offence was recovered on an Evidence Ordinance
section 27 statement. The ash coloured dolphin van 58-5591
was recovered in Pannala police area on 18.03.98 afternoon,
the day after the incident, having gone off the road and
turned turtle, with no occupants. The accused was produced
before an Identifcation parade 50 days after the incident on
06.05.98 conducted by the Attanagalle acting Magistrate and
was identifed by the complainant, followed by dock identif-
cations at the non-summary inquiry on 04.07.2000 and at
the High court trial on 22.09.2004.
The accused made a lengthy 12 page detailed dock
statement denying complicity. The accused took up the
position that on 15.03.98 when he went to a shop close
to the Mirigama Police Station to meet his girl friend, he
was dragged inside the Police Station by one P.S. Sujeewa
whereupon he was beaten up and kept in police custody,
statements forcibly obtained from him and taken to Nittam-
buwa and Negombo police stations and pointed out to several
complainants with regard to other offences. The complainant
van driver too, with injuries on his hand and forehead, was
brought to the Mirigama Police Station by a sub-inspector of
Nittambuwa Police and was shown the accused and questioned
whether he could identify the accused to which the complainant
replied “fï jf.a ;uhs ” thereafter the police took the accused to
his residence and spent half an hour there and returned the

370 Sri Lanka Law Reports [2011] 1 SRI L.R.
accused to the police station. Finally, according to the
accused he was produced before a doctor and produced in
courts. On a proper evaluation, the main features of the dock
statement of the accused were that the accused could not
have committed the alleged offence on 17.03.98 as he was by
then already in police custody, which in effect tantamount to
a defence of alibi, and also that the accused was pointed out
to the complainant at the Mirigama police station well before
the identifcation parade held on 05.06.98.
The learned Counsel for the appellant has raised 13
grounds of appeal listed (a) to (m) in the written submissions
adduced on behalf of the appellant, which could be broadly
categorized as follows:
(1) The long delay in holding the Identifcation Parade and
the improper constitution of the parade itself generating
a reasonable doubt as to the question of proper identif-
cation.
(2) The unlawful detention in police custody of the accused
from 20.03.98 to 24.03.98 and its legal implications as to
the production of a valid detention order.
(3) Improper admission of inadmissible evidence of bad
character and its legal implications impacting on the
propriety of the conviction and the right to a fair trial.
(4) Legal implications of the Evidence Ordinance Section 27
recovery of the knife and its evidentiary value on failure
to make written notes regarding the recovery.
(5) Legal implications arising out of the failure to call in
evidence the doctor who attended on the injuries of

Roshan Vs. The Attorney General
CA (Sarath De Abrew, J.) 371
the complainant as regards the best evidence rule and
the assessment whether the injuries constituted a very
great antecedent probability of death resulting from the
injuries as opposed to a mere likelihood of causing
death.
(6) Legal implications of improper evaluation of the dock
statement and consequent misdirection on the part of the
trial Judge.
(7) Misdirection in the evaluation of absence of fngerprints
or failure to obtain fngerprints from the van recovered.
(8) Legal implications of the defective count 02 under
section 383 of the Penal Code whether a conviction can be
sustained under a section which does not create an
offence.
(9) This is not a ft and proper case to order a retrial, in view
of Attorney General Vs Viraj Aponso (1)
The learned Deputy Solicitor General for the Respon-
dent sought to counter the aforesaid arguments adduced on
behalf of the appellant by submitting oral and written
submissions relying on Nissanka Vs State(2).
Having perused the entirety of the proceedings, the
impugned judgment of 28.10.2004 of the learned trial
judge and written submissions of Counsel I now proceed to
examine the several grounds of appeal urged on behalf of the
appellant.
The frst ground of appeal is the question of proper
identifcation of the accused by the complainant as the
assailant who stabbed him and robbed his van. The
incident took place on 17.03.98 and the 1st identifcation

372 Sri Lanka Law Reports [2011] 1 SRI L.R.
parade held belatedly on 06.05.98 (P1) was effected 50 days
later. The 2nd identifcation was a dock identifcation at the
non-summary inquiry over two years later on 04.07.2000.
The 3rd identifcation too was the dock identifcation at the
High Court trial 6 ½ years later on 22.09.2004. The assailant
was a total stranger with whom the complainant had only
about 04 hours contact while driving the van on the day of
the incident. The complainant has admitted in evidence that
he had described the assailant to the police as a person of fair
complexion with curly hair and of normal build around 5 feet
4 inches in height. The evidence given by the only eyewitness
at the trial relating to his identifcation of the accused at the
parade is substantive evidence establishing identity in terms
of section 9 of the Evidence Ordinance. (Vide Keerthi Bandara
Vs. Attorney General (3)) The acting Magistrate, Attanagalle,
who conducted the identifcation parade has given evidence
and produced the parade notes. (P1).
Before evaluating the approach of the learned trial Judge
to the question whether the accused had been properly iden-
tifed as the perpetrator beyond reasonable doubt, the follow-
ing salient features have to be noted.
(a) The identifcation parade, if it is to be of value,
must be held at the earliest opportunity, so that the
impression of the witness remains fresh in his mind
and he does not have the chance of comparing notes
with others.
(b) The accused should not be pointed out to the witness
nor his photograph be shown before the parade.
(c) The accused should be afforded the right to be rep-
resented by Counsel to safeguard his interests at the
parade.

Roshan Vs. The Attorney General
CA (Sarath De Abrew, J.) 373
(d) The identifcation parade itself should be properly and
fairly constituted with regard to the age, sex, number
of participants and mode of dress in order to obvi-
ate any unfair disadvantage to the accused and an
unfair advantage to the witness, the responsibility for
which devolves on the Magistrate or acting Magistrate
who conducts the parade and not on the court police
offcer who selects and hustles in the frst available
persons at random as participants at the parade.
(e) The witness must be questioned and his descrip-
tion according to his recollection of the perpetrator
extracted and recorded before he is invited to examine
the parade and point out the perpetrator.
(f) In view of the provisions in Article 13(3) of the
Constitution recognizing the right of an accused
person to a fair trial by a competent court, evidence
of improper identifcation must be excluded if court is
of the view that its admission would have an adverse
effect on the fairness of the proceedings.
(Vide: The Attorney-General Vs. W.J. Aloysius and
others(4), Even though an identifcation parade is
held at a pre-trial stage, the admission of evidence of
identifcation as substantive evidence at the trial
would enable such proceedings to come within the
ambit of Article 13(3) of the Constitution.
In the backdrop of the above requirements to ensure
fairness to the accused, it is now left to examine the ground
situation on the question of identity with regard to the facts
of this case.

374 Sri Lanka Law Reports [2011] 1 SRI L.R.
(1) The parade had been held belatedly 50 days after the
event. As the accused had been arrested on 20.03.98
and his statement recorded on 24.03.98, there is
no plausible reason adduced to delay the holding of
the parade till 05.06.98. The learned trial Judge had
failed to consider the impact of this unreasonable
delay on the ability of the complainant to make a
genuine identifcation.
(2) No proper weightage had been given to the consistent
allegation by the accused at the parade itself and his
subsequent detailed dock-statement of 04.10.2004
that he was pointed out to the complainant whilst
being in the custody of Mirigama police before the
parade.
(3) The accused had not been afforded the opportunity to
be represented by Counsel at the parade. (Page 123 of
the Record).
(4) The parade had been improperly and unfairly
constituted as to the age and mode of dress of the
seven participants who were 10 years to 47 years
in age and wearing either sarongs or long trousers
where the accused was easily distinguishable in a
pair of white shorts and blue long sleeve shirt. The
complainant could very well have been assisted in
his identifcation by being prompted to identify the
person in shorts.
(5) The acting Magistrate has not taken the precaution to
question and extract the description of his assailant
according to his recollection from the witness before
being invited to point out the assailant, in order to

Roshan Vs. The Attorney General
CA (Sarath De Abrew, J.) 375
test whether the appearance of his assailant was still
fresh in his mind.
Due to the above circumstances I am frmly of the view
that the learned trial Judge has misdirected himself in
admitting the evidence of identifcation at the parade which
would create a grossly adverse effect on the fairness pro-
ceedings in violation of the right to a fair trial enshrined in
Article 13(3) of the Constitution. The learned trial Judge has
called the Identifcation Parade a farce and still admitted this
improper evidence, while stating that an identifcation parade
was not at all necessary in view of the dock identifcations 02
years later at the non-summary inquiry and 6 ½ years later
at the High Court trial. However the learned trial Judge has
not endeavoured to reconcile the disparity in description of
the assailant initially by the complainant as a fair person
with curly hair, of normal build and around 5 feet 4 inches in
height as against the stark facts of the accused in the dock
being a taller person, darker in complexion and lacking curly
hair.
In this context the following may be noted. In the case of
Regina Vs. Turnbull and Another(5) one of the important guide-
lines set out was whether there was any material discrepancy
between the description of the accused given to the police
by the witness when frst seen by him and his actual
appearance. In Keerthi Bandara Vs Attorney General at 261
(supra) the right of the appellate court was recognized to
look into the statement of the witness to the police, not to
use it as substantive evidence, but to test the veracity of the
witness. The complainant too under cross-examination has
not only admitted the description given by him of his assailant
to the police, but also conceded the difference in appearance

376 Sri Lanka Law Reports [2011] 1 SRI L.R.
and complexion to some extent of the accused in the dock.
In W.A. Fernando Vs The Queen(6) it has been held that there
is a duty cast on the prosecution to draw the attention of the
trial Judge to an item of evidence which would cast serious
doubts as to the guilt or proper identifcation of an accused
person. This ancilliary right to information to prepare his
defence was one of the ingredients of a fair trial as recognized
by Mark Fernando J in Wijepala Vs Attorney General(7). Under
the above circumstances, the learned trial judge has misdi-
rected himself in not attaching proper weightage to this all
important discrepancy in appearance of the accused in the
dock and the appearance of the assailant described by the
complainant to the police.
Furthermore, while admitting the evidence of identifca-
tion at the parade, in the same breath, the learned trial judge
has remarked that the parade was not necessary due to the
subsequent dock identifcations at the non-summary
inquiry and the High Court trial. In Attorney General Vs K.M.
Premachandra and 2 others(8) F.N.D. Jayasuriya, J, citing the
unreported case of Gunaratne Banda(9) has endorsed the
view taken by Justice Wijesundera in that case against the
prudence and wisdom in proceeding against an accused
person in a criminal case on mere dock identifcation. Apply-
ing this dictum to the facts of this case, if there is a genuine
doubt whether the complaint could effect a valid identifca-
tion at a parade held 50 days after the incident, it would
be nothing but reasonable to assume that subsequent dock
identifcations several years later too would be impregnated
with serious doubts as to the genuiness of the identifcation
in the backdrop of the disparity in appearance of the descrip-
tion given to the police and the accused in the dock.

Roshan Vs. The Attorney General
CA (Sarath De Abrew, J.) 377
In all the circumstances in this case, I am of the view,
that in the absence of substantive evidence of identifcation
at a fair and properly constituted identifcation prarade held
without delay, in the backdrop of an acknowledged disparity
in the complexion and appearance of the accused at the trial
stage, the assailant being a total stranger to the complainant
who had a mere 04 hour visual contact with the assailant,
the evidence of subsequent dock identifcation several years
later would not eliminate the generation of a reasonable and
justifable doubt as to the veracity and genuiness of the
identifcation, unless there are other supervening and
compelling reasons to justify the contrary. In the event I
am inclined to uphold the 1st ground of appeal that it would
be unsafe to base a conviction on the aforesaid evidence of
identifcation in the absence of other independent evidence to
connect the accused to the crime. The situation would have
been possibly different if the investigating police offcers had
taken the trouble to obtain possible fnger prints from the van
when it was recovered and compared them with that of the
accused. In this context it must be added that the recovery
of the knife on a section 27 Evidence Ordinance statement
would not conclusively connect the accused to the crime.
Vide: Heenbanda Vs The Queen(10).
With regard to the 2nd ground of appeal as to the produc-
tion of a valid detention order, it would suffce to draw atten-
tion to the presumption under section 114(d) and the burden
of proof under section 106 of the Evidence Ordinance.
The 3rd ground of appeal is the legal implications of the
improper admission of inadmissible evidence with regard to
bad character under section 54 of the Evidence Ordinance.
At page 304 of the record, in his judgment, the learned

378 Sri Lanka Law Reports [2011] 1 SRI L.R.
trial Judge has stated “some evidence in regard to the bad
character of the accused has gone to the record. This evidence
was led by the defence lawyer himself and not the prosecu-
tion. In any case this court will not consider such evidence
to the prejudice or detriment of the accused.” On a perusal
of the evidence of S.I. Hemasundera, it would appear that
unrestrained bad character evidence had been inadvertently
admitted by the learned trial Judge on several occasions both
during the evidence in chief conducted by the prosecution
and also cross-examination by the defence counsel.
Page 169 – (Evidence in chief) —fuu ;eke;a;d oreKq .kfha
wmrdOlrefjla njg ,enqKq f;dr;=re u; w;awvx.=jg .ekSug
.sfha'˜
Page 177 – (cross-emamination) —ud by; lS mßÈ m%foaYfha
uxfld,a, yd ñkSuereï iïnkaOfhka lKavdhul kdhlhl=
jYfhka lreKq wkdjrKh jqKd'˜
Page 190 – —fujka wmrdOlrejl= lsisÈkl nia tll f.k hkafka
keye' /ljrKh we;sjhs f.khkafka˜'
Page 191 – 192 – In cross-examination, in response to
questions by the defence counsel, S.I. Premasundera has
adduced evidence regarding cases fled against the accused
by Mirigama, Divulapitiya and Veyangoda police stations.
Therefore it would appear, the learned trial Judge in
his judgment, confnes himself to evidence of bad charac-
ter led by the defence counsel in cross-examination and ig-
nores such evidence led by the prosecution in the evidence in
chief. Therefore the statement that such evidence will not be
considered is not exhaustive and there is no guarantee that
the totality of the offending evidence of bad character has

Roshan Vs. The Attorney General
CA (Sarath De Abrew, J.) 379
been disregarded by the learned trial judge in arriving at his
conclusions. There is a paramount duty cast on a trial judge
to exclude inadmissible evidence and prevent such evidence
creeping into the record. The resultant situation is such that,
these offending items of bad character evidence has now crept
into the record and formed part of the proceedings. This is
extremely prejudicial to the interests of the accused and
would adversely affect the right of an accused to a fair trial.
The nature of the bad character evidence thus admitted too
have a direct bearing on the question of the accused having
a violent disposition and being branded as a notorious crimi-
nal. In the context Article 13(3) of the Constitution, to ensure
that justice is not only done but should appear to be done,
the trial concerned should not only be fair but should mani-
festly appear to be fair.
In cases where there were no express statements by
the judge as to disregarding the bad character evidence, the
Appellate Court, in some cases have acquitted the accused (eg;
Perera Vs Naganathan(11) or ordered a retrial (eg; Coomaras-
wamy vs Meera Saibo(12). In trials by a Judge without a
jury, there have been acquittals even where the Judge has
positively stated that he was not considering the evidence of
bad character.
(Vide: R vs Ranasinghe(13))
In the present case as the express statement of the
learned trial judge apparently refers to the bad character
evidence that has surfaced under cross-examination and
there is no reference to such evidence led in evidence in
chief, I am of the view that, considering the nature of the bad
character evidence led in this case, and in the light of the

380 Sri Lanka Law Reports [2011] 1 SRI L.R.
right to a fair trial on admissible evidence, it would be more
appropriate to quash the conviction without ordering a re-
trial. Therefore the 3rd ground of appeal too would succeed.
In view of the above fndings with regard to the 1st and
3rd grounds of appeal stated above it may not be necessary to
deal with in detail the several other grounds of appeal urged
on behalf of the appellant. Dealing with the 6th ground of
appeal with regard to the dock statement, it would appear
that the learned trial Judge has made no effort to make a
genuine judicial analysis of its contents and give cogent
reasons for rejecting same in his endeavour to determine
whether it would create a reasonable doubt in the prosecution
case.(Vide Gunapala and others Vs Republic of Sri Lanka(14))
However in passing, it would be appropriate to deal with
the 5th ground appeal where the prosecution has failed to call
the doctor who treated the injuries on the complainant but
has relied on the evidence of the DMO, Wathupitiwela who
has based his evidence on the notes of the former doctor. The
learned trial Judge has failed to elicit from the doctor wheth-
er the injuries on the complainant constituted a very great
antecedent probability of death as opposed to a mere
likelihood of causing death, which is a sine qua non in main-
taining a charge of attempted murder under section 300 of
the Penal Code. (Count 01).
(Eg: Attorney General Vs Somadasa(15) and J.P.A. Srikan-
tha and 05 others Vs. Attorney General(16). In view of the
above too, the conviction on count 1 on the charge of
attempted murder too would be set aside.
The robbery charge in Count No. 02 too is defective as
section 383 of the Penal Code is not a section that creates an

Roshan Vs. The Attorney General
CA (Sarath De Abrew, J.) 381
offence. Both the learned State Counsel and the learned trial
Judge have neglected to amend this charge appropriately to
be read with section 380 of the Penal Code.
(Vide Wickremasekera Vs Chandradasa(17))
The infrmities in the visual identifcation and infux of
bad character evidence, the inadequacy of medical evidence
and the analysis of the dock statement are all circumstances
in favour of the accused. In a nutshell, where the learned
trial Judge emphasizes only the circumstances against the
accused and fails to grasp and evaluate material in favour of
the accused but prefers to turn a blind eye on such circum-
stances, the accused is deprived of substance of a fair trial.
The date of offence being 17th March 1998, almost 13
years have elapsed hence, and therefore, taking into consid-
eration other defciencies enumerated above, and the fact
that no purpose would be served in the complainant mak-
ing another dock identifcation of the accused, at a future
re-trial, I am of the view that there is no purpose in ordering a
re-trial. It is a basic principle of our criminal law that a retrial
is ordered only if it appears to court that justice so requires.
(Vide : L.C. Fernando Vs. Republic of Sri Lanka.(18)
Therefore, for the aforesaid reasons, I set aside the
conviction and sentence dated 28.10.2004 of the learned
High Court Judge of Gampaha on counts 1 and 2 and acquit
the accused.
Appeal is therefore allowed.
MArASinghe, J.- I agree.
Appeal allowed.

382 Sri Lanka Law Reports [2011] 1 SRI L.R.
FERNANDO AND 5 OTHERS VS. STATE
COURT OF APPEAL
RANJIT SILVA. J
ABEyRATNE. J.
CA 168-173/2006
HC NEGOMBO 105/2002
SEPTEMBER 30, 2010
OCTOBER 7, 13, 18, 19, 21, 27, 2010
NOVEMBER 3, 8, 2010
JANUARy 12, 2011
Penal Code Section 102, 113a – Opium and Dangerous Drugs
Ordinance Section 54 (A) d – amended by Act 13 of 1984 Importa-
tion – traffcking – Heroin – Defence of Alibi – Dock statement –
Assessment of evidence on a wrong premise? – Ellenborough
principle – Applicability – Evidence ordinance – Section 114(f)
The accused – appellants were indicted on 4 charges – possession of pure
heroin – (Section 54 (A)(d) – importation – Section 54 (A) c, traffcking
Section 54 A (b) – abetting and/ or conspiracy to import – Section 54 (A)
(b) read with Section 102, 113A Penal Code. All accused were found
guilty.
held
(1) Evidence in support of the defence of Alibi is evidence that tends
to show that by reason of the presence of an accused (1) at a
particular place (2) in a particular area at a particular time the
accused was not or was unlikely to have been at the place where the
offence is alleged to have been committed at the time of the alleged
commission.
(2) An alibi is not an exception to criminal lability, like a plea of private
defence or grave and sudden provocation. An alibi is nothing more
than an evidentiary fact which, like other facts relied on by an
accused must be weighted in the scale against the case of the
prosecution. The trial Judge has correctly analyzed the evidence
adduced on the defence of alibi.

Fernando and 5 others vs. State
CA (Upali Abeyrathne, J.) 383
(3) It is only where upon the facts the order is manifestly unreason-
able or plainly unjust that the appellate Court may infer that in
some way there has been a failure to exercise the discretion vested
in the trial judge. So long as the Court has exercised its discretion
judicially an appellate Court cannot and will not disturb and
interfere with such an order.
There is no substantial miscarriage of justice that had occurred by
mistakes made by the trial Judge.
(4) No person accused of crime is bound to offer any explanation
of his conduct or of circumstances of suspicion which attach to
him, but, nevertheless if he refuses to do so where a strong prima
facie case has been made out, and when it is in his own power to
offer evidence – if such exist, in explanation of such suspicious
circumstances which would show them to be fallacies and
explicable consistently with his innocence it is a reasonable and
justifable conclusion that he refrains from doing so only from the
conviction that the evidence so suppressed or not adduced could
interfere adversely to his interest – Ellenborough Principles – the
5th and 6th appellants did not offer any explanation.
AppeAl from the judgment of the High Court of Negombo.
Cases referred to:-
1. King vs. Marshal 51 NLR 157.
2. Gunapala and others vs. The Republic of Sri Lanka 1994 2 Sri LR
180
3. Wijewardane vs. Lenora 60 NLR 457 at 463.
4. Rohana vs. Shayama Attanayake & others 1990 3 Sri LR 381
5. R. Vs. Lord Cochrane and others 1814 Gurneys Reports 479
6. R. vs. Burdett 1820 4 B & Ald 161 at 162
7. Rajapaksa Devaga Somarathna Rajapakse and others vs. A. G.
SC 2/2002 TAB
K. Kulatunga for 1st and 3rd accused appellants
Anil Silva PC with Tony Fernando for 2nd accused appellant
W. Dayaratne PC for 4th accused appellant
Shanaka Ranasinghe for 6th accused – appellant

384 Sri Lanka Law Reports [2011] 1 SRI L.R.
June 02nd 2011
UpAli AbeyrAthne, J.
The Accused Appellants (hereinafter referred to as the
1st, 2nd, 3rd, 4th, 5th and 6th Appellant) were indicted in the High
Court of Negombo on 04 charges namely;
1. That 1st, 2nd and 3rd Appellants had in their possession
14.071 kilograms of pure heroin in contravention of
section 54(A)(d) of the Poisons, Opium and Dangerous
Drugs Ordinance as amended by Act No 13 of 1984.
2. That 1st to 6th Appellants did import the said quantity
of heroin in contravention of section 54(A)(c) of the
said Ordinance.
3. That 1st to 6th Appellants did traffck the said
quantity of heroin in contravention of section 54(A) (b)
of the said Ordinance.
4. That 1st to 6th Appellants did the offense of abetting
and/or conspiracy to import the said quantity of
heroin in contravention of section 54(A)(b) of the said
Ordinance to be read with section 102 and 113A of
the Penal Code.
After trial the Appellants were found guilty for the said
charges and sentenced to life imprisonment. Being aggrieved
by the said judgment dated 03.05.2006 the Appellants
preferred the instant appeal to this court.
The case for the prosecution is that on 10.04.2001
witness SI Jayalath had received information that the 1st
Appellant was bringing a quantity of heroin from India in
a trawler named Ave Maria or Christopher. Also the police

Fernando and 5 others vs. State
CA (Upali Abeyrathne, J.) 385
had received further information that importation would take
place on 18.04.2001. Accordingly a raid was organized on
the instructions of ASP Priyantha Jayakodi. Four groups
consisting of police offcers were deployed for the raid. On
21.04.2001 at about 1.45 am one of the police groups had
noticed a small green colour Suzuki Escudo jeep which
arrived from the direction of Negombo town parked on the
road near the Negombo lagoon close to the 92nd mile post.
Thereafter the 1st and 2nd Appellant got down from the jeep,
went near a boat which had stopped near the wooden plat-
form erected in the lagoon, looked at the sea and came back
and parked on the road near the Negombo lagoon and was
seen waiting. At about 2.30 am the trawler named Ave Maria
which arrived from deep sea had stopped near the wooden
platform. Thereafter the 1st and 2nd Appellants who were in
the jeep had proceeded near the boat Ave Maria. Thereaf-
ter the 3rd Appellant who was in the boat gave a parcel to
the 1st Appellant. The 1st Appellant took the parcel and came
to the jeep. The 3rd Appellant gave another parcel to the 2nd
Appellant. Thereafter the 3rd Appellant got down to the
wooden platform from the boat and held the parcel with the
2nd Appellant and came to the jeep. At that time IP Nimal
Fernando ordered IP Jayalath and other police offcers to
arrest the three Appellants. The two parcels which had been
brought to the jeep from the boat were found in the jeep.
At that time they noticed that the boat Ave Maria was
going back to deep sea. At that moment ASP Jayakodi had
ordered the police groups who were waiting at sea to arrest
the boat. Since the inmates of Ave Maria failed to obey the
orders of the police they had opened fre at the boat and
arrested it with 4th, 5th and 6th Appellants who were in the

386 Sri Lanka Law Reports [2011] 1 SRI L.R.
boat. Thereafter at about 4 am a police team headed by ASP
Priyantha Jayakodi had gone to the residences of the 1st and
2nd Appellants and had conducted a search operation of the
two residences.
At the hearing of this appeal the learned counsel for the
1st and 3rd Appellants submitted that the 1st Appellant was
taken into custody whilst he was sleeping in his residence
with his family at Thoduwawa. I now advert to the said
submission of the learned counsel. The 1st Appellant gave
evidence and called his wife, daughter, father and the
gramasewaka of the area as witnesses in support of his posi-
tion. It is apparent from the said evidence that the wife of the
1st appellant had informed her father in law Norbert on the
same night that her husband and the vehicle was taken away
by a person called Priyantha Jayakodi. In contrast to this
position the Gramasewaka who was called as a witness on
behalf of the 1st Appellant had testifed that Norbert who was
the father of the 1st Appellant complained to him that his son
had been abducted by an unknown group at about 4 am and
his vehicle too had been taken away by the same group. It is
also apparent from the said evidence that the said complaint
to the Gramasewaka has been made for future reference only.
Norbert in his evidence had stated that he did not reveal the
name of Priyantha Jayakodi to the Gramasewaka although
he was informed by the wife of the 1st Appellant that her
husband had been taken away by Priyantha Jayakodi. It is
very strange to note that none of the said witnesses has made
any complaint to the police.
The learned counsel for the 1st and 3rd Appellants
further contended that reporting the matter to the 1stappellant’s
father and his complaint to the gramasevaka on the following
afternoon give credence to the defence story that the arrest

Fernando and 5 others vs. State
CA (Upali Abeyrathne, J.) 387
was made not in Negombo but at Thoduwawa from the 1st
Appellant’s residence. He further contended that the defence
of alibi is well and truly corroborated by the evidence of the
1st Appellant’s wife daughter and father.
On behalf of the 3rd appellant the learned counsel
submitted that if the evidence of alibi is accepted it ensures
to the beneft of the 3rd appellant as there is no divisibility of
credibility.
The 3rd Appellant made a very short dock statement. He
did not call any witnesses on his behalf. In his dock state-
ment he stated that he came to Negombo with the other three
persons on 20.04.2001 in order to leave for the job. They got
some ice, a few provisions for their meals and fuel and pro-
ceeded to deep sea in the night on 20.04.2001. He further said
that while they were sailing in the deep sea the police arrested
them. Thereafter they were taken to Colombo. They did not
go to the job on 18.04.2001. On the contrary the prosecution
witnesses testifed that there was no ice in the cold room of
the boat and no fsh in the boat. There was a unused fsh-
ing net in packing in the boat. There were no contradictions
marked or omissions highlighted in the said evidence of the
prosecution.
I have carefully considered the evidence led on behalf of
the 1st and 3rd appellants and also the submission made by
the learned counsel. I am also mindful of the nature of the
defence of alibi. Evidence in support of the defence of alibi is
evidence that tends to show that by reason of the presence of
an accused;
• at a particular place or
• In a particular area at a particular time

388 Sri Lanka Law Reports [2011] 1 SRI L.R.
the accused was not, or was unlikely to have been, at the
place where the offence is alleged to have been committed
at the time of its alleged commission. Hence in its essence
a defence of alibi is nothing more than a plea of not guilty,
because the accused was not present at the place where the
offence was committed on the occasion indicated.
In considering the evidence in support of the defence of
alibi on the above premise, if the court accepts the evidence
in support of the defence of alibi, then the court must re-
cord a verdict of not guilty if the court fnds that these times
just do not allow for this accused to have committed the acts
alleged.
Also if the court does not accept the evidence in support
of the defence of alibi, but it creates a reasonable doubt about
the prosecution case, then the court must record a verdict of
not guilty.
In the case of the King vs. Marshal (1) Dias J. stated that
“An alibi is not an exception to criminal liability, like a plea of
private defence or grave and sudden provocation. An alibi is
nothing more than an evidentiary fact, which, like other facts
relied on by an accused, must be weighed in the scale against
the case of the prosecution. If suffcient doubt is created in
the minds of the jury as to whether the accused was present
at the scene at the time the offence was committed, then the
prosecution has not established its case beyond reasonable
doubt and the accused is entitled to be acquitted.”
In the case of Gunapala and Others vs. The Repub-
lic of Sri Lanka(2) it was held that “an alibi is the plea of an
accused person that he was elsewhere at the time of the alleged

Fernando and 5 others vs. State
CA (Upali Abeyrathne, J.) 389
criminal act. It is an evidentiary fact by which it is sought to
create a doubt whether the accused was present at the time
the offence was committed. In a case where the defence is
that of an alibi an accused person has no burden as such
of establishing any fact to any degree of probability. An alibi
is not an exception to criminal liability like a plea of private
defence or grave and sudden provocation. A direction to the
jury that an alibi must be proved on a balance of probability
is a misdirection on the law in regard to the burden of proof
and an error in law causing grave prejudice to the accused."
In the light of the said judicial pronouncements when I
consider the said evidence I am of the view that the learned
trial Judge has correctly analysed the evidence adduced on
behalf of the 1st and 3rd appellants and has reached a right
conclusion rejecting the defence of alibi.
The learned counsel for the 2nd Appellant made his
submission on the following basis:
• The learned trial Judge did not analyze the evidence
to fnd whether the 1st and 2nd Appellants went to the
boatyard on 18.04.2001.
• From whom was the information received.
• Was the raiding party acting on the basis that the 1st
and 2nd Appellants were the master minds behind this
alleged traffcking?
• The improbabilities of the defence version as stated
by the learned Deputy Solicitor General.
• Items of circumstantial evidence favourable to the
the 2nd Appellant.

390 Sri Lanka Law Reports [2011] 1 SRI L.R.
• Has there been an abdication of the learned trial
judge’s duties to the prosecuting state counsel.
• The learned trial judge has failed to consider the
dock statement of the 2nd Appellant and the evidence
adduced on his behalf.
I have carefully considered the dock statement of the 2nd
appellant and also the evidence of his wife Jacqueline Fer-
nando. It is important to note that at the time of taking her
oath before the commencement of her evidence Jacqueline
Fernando had declared she is unmarried. In his short dock
statement the 2nd Appellant had stated that on 20.04.2001
whilst he was sleeping with his son and daughter, on 21st
morning his son informed him that somebody wants to speak
to him. When he opened the door he saw two persons were
standing there. They asked are you Vernon? We want to
record a statement. Thereafter he was taken to Colombo in a
van. He further said that I did not go on that particular day. I
was sleeping. Nimal and Jayalath are lying. I was taken away
by some other two persons. That is all the 2nd Appellant had
stated in his dock statement.
Although the wife of the 2nd Appellant Jacqueline
Fernando had testifed that on 20.04.2001 she was at home
with her husband the 2nd Appellant and son and daughter
Munnakkaraya, the 2nd Appellant in his dock statement did
not reveal that his wife was at home. What he said was that
on 20.04.2001 he was sleeping with his son and daughter.
Can a court of law believe this type of unsupporting
evidence? The answer is ‘no’ . Therefore it is safe to conclude
that the 2nd Appellant has failed to create a doubt in the
evidence of the prosecution.

Fernando and 5 others vs. State
CA (Upali Abeyrathne, J.) 391
With regard to the fact that whether the 1st and 2nd
accused appellants went to the boatyard on 18.04.2001
it is my frm view that the prosecution has proved beyond
reasonable doubt that the 1st and 2nd Appellant went to the
boatyard near Negombo lagoon on 18.04.2001. No doubt has
been created on the evidence that the 1st and the 2nd appellants
who arrived at Negombo lagoon by a Suzuki Escudo jeep went
near the Ave Maria boat and with the help of the 3rd appellant
carried the two parcels of heroin to the jeep. There were no
contradictions marked or omissions highlighted in the said
evidence of the prosecution. Therefore it is crystal clear that
the 1st, 2nd, and 3rd Appellants were present at the crime scene
and were active participants in committing the crime. Hence I
reject the said submission of the learned counsel.
The learned counsel further submitted that the learned
trial judge had assessed the evidence on a wrong prem-
ise and there by a miscarriage of justice had occurred. He
further submitted that the learned trial judge has not read
the evidence at all. The trial judge in his narration of the evi-
dence where he has taken it verbatim from the written sub-
missions of the learned state counsel he does not mention
anything at all as to what was asked in cross examination.
The learned counsel further submitted that the learned trial
judge has failed to consider the dock statement of the 2nd
Appellant and to decide whether he is going to accept or reject
the dock statement. I am not in total agreement with the said
submissions of the learned counsel. I do not think that the
learned trial judge had made any glaring mistake in evaluat-
ing the evidence of the case. I must place on record that in
an appeal the Appellate Courts have to consider whether a
substantial miscarriage of justice has actually occurred by
such mistakes of the learned trial judge.

392 Sri Lanka Law Reports [2011] 1 SRI L.R.
In the case of Wijewardene vs. Lenora(3) at 463 Basnayake
C.J. stated that “ It is true that the learned Judge has not
discussed in his judgment the reason for not imposing a term
as to postponement of the trial when making the amendment.
Although it does not appear from the judgment or order of the
trial Judge how he has reached the result embodied in his
order, upon the facts the order is not manifestly unreason-
able or plainly unjust. It is only where upon the facts the
order is manifestly unreasonable or plainly unjust that the
appellate Court may infer that in some way there has been a
failure to exercise the discretion vested in the trial Judge”
In the case of Rohana vs. Shyama Attygala & Others(4)
Kulatilaka J stated that “ So long as the court has exercised
its discretion judicially this court sitting in appeal cannot
and will not disturb and interfere with such an order. On
the other hand, this court may do so if it appears that some
error has been made in exercising the discretion and that
the Judge has acted illegally, arbitrarily or upon a wrong
principle of law.”
When I consider the said several mistakes on which the
learned counsel drew our attention I am of the view that there
is no substantial miscarriage of justice which has actually
occurred by the said mistakes of the learned trial judge.
The learned counsel for the 2nd Appellant further submit-
ted that the learned trial judge has misapplied the presump-
tion under section 114(f) of the Evidence Ordinance. I have
carefully considered the relevant portion of the judgment in
this regard. A careful reading of the said portion of the judg-
ment clearly reveals that although the learned trial judge has
referred to the section 114(f) of the Ordinance he has not