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D I G E S T
Page
PENAL CODE – Murder – Section 294 – exception 4 – Section 296 – No 236
defence of grave and sudden provocation taken up – should the trial
Judge consider such a plea?
Gamini Vs. Attorney General
PENAL CODE – murder – Section 296 – Conviction based on circum- 240
stantial evidence – Inference to be drawn? – Evidence Ordinance
– Section 114 (g) – Ellenborough principle – only when a strong
prima facie case has been made out?
Kusumadasa Vs. State
(Continued in Part 10)
SUPREME COURT RULES, 1990 – Compliance of Rule 8 is imperative – 225
Rule 40 – Application for extension of time for the purpose of Rule 8(3)
– Procedure
Attanayake V. Commissioner General Of Elections
(Continued from Part 9)

Attanayake V. Commissioner General Of Elections
SC (Dr. Shirani A. Bandaranayake, CJ.) 225
Learned Senior State Counsel referred to the long line
of cases, which had clearly stated the need to follow the
Supreme Court Rules, when invoking the jurisdiction of
this Court and drew our attention to the position taken by
Tennekoon, C.J. in C. Coomasaru v M/s Leechman and Co.
Ltd. and others(1)referred to in Nicholas v O.L.M. Macan Markar
Ltd. and others(2)
“Rules of procedure must not always be regarded as mere
technicalities which parties can ignore at their whim and
pleasure.”
Several other judgments commencing from K. Reaindren
v. K. Velusomasunderam(3) were referred to in support of
the position that non-compliance with Rule 8(3) of the
Supreme Court Rules, 1990 would result in the dismissal of the
application for special leave to appeal.
Learned President’s Counsel for the 4th respondent
associated himself with the submissions of the learned
Senior State Counsel and referred to several judgments of
this Court, which indicated the need to give notice to the
respondents in terms of Supreme Court Rules of 1990.
Learned Counsel for the petitioner contended that
although the learned Senior State Counsel for 1st to 3rd and
28th respondents and the learned President’s Counsel for the
4th respondent had raised the preliminary objection that the
petitioner has not complied with Rule 8(3) of the Supreme
Court Rules, 1990 that such errors could be rectifed and
that justice would be denied if the application is dismissed on
such minor mistakes. In support of this contention, learned
Counsel for the petitioner referred to Rule 30 of the Supreme

226 Sri Lanka Law Reports [2011] 1 SRI L.R.
Court Rules and stated that the said Rule 30 is mandatory
as the consequences of its non-compliance is specifcally
stated in the said Rule. Learned Counsel for the petitioner
contended that the Supreme Court Rules do not indicate such
consequence with regard Rule 8(3) and therefore if the peti-
tioner has taken steps to communicate that an application is
pending before this Court to other parties, then the require-
ment of the provisions in Rule 8(3) could be fulflled. In such
circumstances, learned Counsel for the petitioner stated that,
any non compliance of Rule 8(3) of the Supreme Court Rules
would be rectifable. In support of his contention, learned
Counsel for the petitioner relied on, the decisions in Union
Apparals (Pvt.) Ltd. v Director-General of Customs and others (4),
Piyadasa and others v Land Reform Commission(5), Kiriwan-
the and another v Navaratne and another(6), Priyani Soysa v
Rienzie Arsecularatne(7) and Bank of Ceylon v The Ceylon Bank
Employees’ Union (on behalf of Karunatilake)(8).
Having stated the submission made by all learned
Counsel, let me now turn to consider the legal position with
regard to the preliminary objection that was raised before
this Court.
The contention of the learned Counsel for the petitioner
is that although Rule 8(3) of the Supreme Court Rules, 1990
had laid down provisions that are mandatory, the non-com-
pliance of such mandatory provision does not result in a
dismissal of the application, as it is possible to cure that
defect and the petitioner had taken such steps in order to
rectify the mistake. He referred to the applicability of Rule 30
in support of this contention.
Rule 8(3) of the Supreme Court Rules is contained in
part I(A) of the said Rules, which deals with special leave to
appeal applications. The said Rule 8(3) is as follows:

Attanayake V. Commissioner General Of Elections
SC (Dr. Shirani A. Bandaranayake, CJ.) 227
“The petitioner shall tender with his application such
number of notices as is required for service on the
respondents and himself together with such number of
copies of the documents referred to in sub-rule (1) of
this rule as is required for service on the respondents.
The petitioner shall enter in such notices the names and
addresses of the parties, and the name, address for service
and telephone number of his instructing Attorney-at-law,
if any, and the name, address and telephone number, if
any, of the Attorney-at-law, if any, who has been retained
to appear for him at the hearing of the application, and
shall tender the required number of stamped addressed
envelopes for the service of notice on the respondents by
registered post. The petitioner shall forthwith notify the
Registrar of any change in such particulars.”
It is to be noted that Rule 8(3) of the Supreme Court
Rules, 1990, clearly provides for the need to tender the
relevant number of notices along with the application for
special leave to appeal. The said Rule also specifes the details
that should be entered in such notices, with the requirement
that stamped addressed envelopes for the service of such
notices on the respondents also should be tendered along
with the said notices. A careful examination of Rule 8(3)
clearly shows that the purpose of the said Rule is to ensure
that the respondents are given notice through the Registrar
of the Supreme Court that there is a special leave to appeal
application lodged in the Supreme Court. This position is
clearly enumerated by the fact that it is stated in Rule 8(3)
that in the event if there is any change in the particulars
given by the petitioner along with the notices which were
tendered, changes in such particulars has to be forthwith
notifed to the Registrar.

228 Sri Lanka Law Reports [2011] 1 SRI L.R.
Rule 8 contains 7 sub-Rules and all of them deal with
the purpose of serving notice and the steps that have to be
taken by the petitioner, respondents and the Registrar of
the Supreme Court. The sequence of relevant steps would
commence with the tendering of notices with the relevant
details as referred to in Rule 8(3). This position is empha-
sized in Rule 8(5), which clearly shows the need to issue
notice in terms of Rule 8(3) of the Supreme Court Rules 1990;
wherein it is referred to the need that the petitioner should
attend at the Registry to verify whether notice has not been
returned undelivered and the steps that should be taken if
it had been so returned. Considering all these objections, in
Samantha Niroshana v Senarath Abeyruwan(9) it was clearly
stated that,
“… the purpose of the Supreme Court Rules is to ensure
that all necessary parties are properly notifed in order to
give a hearing to all parties and Rule 8 specifcally deals
with this objection.”
Learned Counsel for the petitioner contended that the
petitioner had fulflled the objective and discharged the
requirements of Rule 8(3), although it may not have been in
such compliance with Rule 8(3) of the Supreme Court Rules,
1990. A similar argument was taken by the learned Deputy
Solicitor General in Fowzie and others v Vehicles Lanka
(Pvt.) Ltd.(10), where it was stated that in the event an
applicant “fails to strictly, but manages to substantially
comply with a Rule, and in doing so causes no prejudice to
the respondent, this Court could examine the circumstances
surrounding such default and adopt a reasonable view of
the matter, in order to prevent an automatic dismissal of the
application.”

Attanayake V. Commissioner General Of Elections
SC (Dr. Shirani A. Bandaranayake, CJ.) 229
In support of the said submissions, several decisions
including the decision in Kiriwanthe v Navarathna (supra)
was cited by the learned Deputy Solicitor General in
Fowzie’s (supra)case. Considering the rationale inKiriwanthe’s
(supra) decision and the fact that Kiriwanthe’s case was
decided on 18.07.1990 on the basis of the Supreme Court
Rule of 1978, it was decided in Samantha Niroshana
(supra) the need to evaluate the provisions of the relevant
Rule, before considering the effect of any non-compliance.
Rule 8(3) as stated earlier clearly specifes that,
“The petitioner shall tender with his application such
number of notices as is required for service on the
respondents and himself …”
The petitioner has fled his petition and affdavit on
31.03.2011 and had moved this Court to list this matter on
one of the three (3) given dates. Admittedly there is no refer-
ence to the effect that the petitioner had tendered notices to
the Registry along with the petition and instead it appears
that the copies of the notices along with the documents were
sent to the respondents directly by the petitioner. The said
notice is as follows:
“I tender herewith my appointment as Attorney-at-Law
on behalf of the petitioner together with her petition,
affdavit, documents marked X1 and the documents
marked X2 which is the case record of the case num-
ber C.A. Writ 155/2011 will be fled in due course and
respectfully move that Your Lordships Court be pleased
to accept same and fle of record (sic).

230 Sri Lanka Law Reports [2011] 1 SRI L.R.
And I further respectfully move that Your Lordships Court
be pleased to list this matter on 26th April, 2nd May or
3rd May.
Copies of this motion together with the petition, affdavit,
marked documents were sent to the Respondent-Respon-
dents by Registered post and the postal article receipts
are annexed hereto.
Sgd.
Attorney-at-Law for the
Petitioner-Petitioner.”
It is therefore evident that the petitioner had not tendered
along with the application the required number of notices
to the Registry in terms of Rule 8(3) of the Supreme Court
Rules, 1990 to be served on the respondents. Instead, the
petitioner had sent the relevant documents by registered post
to the respondents.
There is another important aspect that is revealed through
the aforementioned motion. It is obvious that the said motion
is sent by the registered Attorney-at-Law for the petitioner,
who had fled the special leave to appeal application. In that
she had given 3 dates, convenient to the petitioner’s Counsel
for this matter to be taken for support. On the other hand,
if the petitioner had complied with the Supreme Court Rules
then she would have given these 3 dates to the Registry along
with the motion as to when the matter is fxed for support. It
is necessary at this point to take serious note of the fact that
there is a signifcant difference between the notice tendered
directly by a party to the others and the notice tendered by
the Registrar of the Supreme Court to the relevant parties.

Attanayake V. Commissioner General Of Elections
SC (Dr. Shirani A. Bandaranayake, CJ.) 231
That is the difference, which is clearly stipulated through the
provisions of the Supreme Court Rules in order to streamline
and regulate the Court Procedure dealing with applications
before the Supreme Court.
The importance of adhering to the several steps that
has to be taken in tendering notices is emphasized by the
provisions contained in Rule 40 of the Supreme Court Rules,
1990. In terms of Rule 40, where there is an application for
extension of time for the purpose of Rule 8(3), the Registrar
cannot entertain such an application, but he should submit
it to a single Judge, nominated by the Chief Justice, in
Chambers to decide on such grant of extension of time.
“An application for a variation, or an extension of time, in
respect of the following matters shall not be entertained
by the Registrar, but shall be submitted by him to a
single Judge, nominated by the Chief Justice, in
Chambers:
(a) tendering notices as required by rules 8(3) and 25(2);
….
(d) furnishing the address of a respondent as required by
rules 8(5) and 27(3);
….”
It is not disputed that at the time of the fling of the
application, the petitioner had not issued notices on the
respondents through the Registrar of the Supreme Court. It
is also not disputed that the petitioner had not made any
application in terms of Rule 40 for an extension of time.
It is also common ground that only after the frst date of

232 Sri Lanka Law Reports [2011] 1 SRI L.R.
support the petitioner had served notice to the 4th respon-
dent through the Registry. Therefore this matter had come up
on two occasions for support without issuing notices to the
other respondents and when it came up on 21.06.2011, the
5th to 27th respondents were absent and unrepresented and no
notices had been issued on them.
It is therefore clearly evident that the petitioner had not
complied with Rule 8(3) of the Supreme Court Rules, 1990.
The petitioner contended that even though the petition-
er had not complied with Supreme Court Rules, since the
respondents were notifed, that the defect in not serving
notices through the Registry had been rectifed.
A careful perusal of Supreme Court Rules 8(3) and 40
indicates that the petitioner should tender notices to the
Registry of the Supreme Court along with his application and
in the event if there is a need for an extension of time to
tender such notice that it should be done following the
procedure laid down in terms of Rule 40 of the said Rules.
The decisions in Union Apparels (Pvt.) Ltd. v Director-
General of Customs and others (supra), and Piyadasa and
others v Land Reform Commission (supra) were based on
the preliminary objections raised in terms of Rule 30 of the
Supreme Court Rules of 1990. In Priyani Soysa v Rienzie
Arsecularatne (supra) the question arose clearly with
Rules 2,6 and 8(6) of the Supreme Court Rules. In Bank of
Ceylon v The Ceylon Bank Employees’ Union (on behalf of
Karunathilaka (supra), the preliminary objection was based
on the failure of the respondents to fle a Caveat and had
not considered the tendering of notices in terms of Rule 8(3).

Attanayake V. Commissioner General Of Elections
SC (Dr. Shirani A. Bandaranayake, CJ.) 233
Accordingly for the purpose of the preliminary objection
based on this application, the petitioner cannot rely on the
said decisions.
The provisions laid down in Rule 8 clearly deal with
the need to issue notice on the respondents through the
Registry and had set out clear guidelines to ensure that steps
are taken at several stages to ensure that the respondents
are so notifed. The guidelines are given not only for the
petitioner, but also for the Registrar of the Supreme Court
and even for the respondents to see that the application
is properly instituted, notices are correctly tendered and
relevant parties are properly notifed. It is in order to follow
the said procedure that it is imperative for a petitioner to
comply with Rule 8 of the Supreme Court Rules, 1990.
As clearly referred to in L. A. Sudath Rohana v Mohamed
Cassim Mohamed Zeena (11),
“Rules of the Supreme Court are made in terms of Ar-
ticle 136 of the Constitution to regulate the practice and
procedure of this Court. Similar to the Civil Procedure
Code, which is the principal source of procedure which
guides the courts of civil jurisdiction, the Supreme Court
Rules thus regulate the practice and procedure of the
Supreme Court.”
It is not disputed that even at the date the preliminary
objection was raised, no notices were tendered to the Registry
in terms of Rule 8(3) for service on the respondents.
Through a long line of cases decided by this Court, a
clear principle has been enumerated that where there is
non-compliance with a mandatory Rule, serious consid-

234 Sri Lanka Law Reports [2011] 1 SRI L.R.
eration should be given for such non-compliance as such
non-compliance would lead to a serious erosion of well
established Court procedure followed by our Courts through-
out several decades. (K. Reaindran v K. Velusomasundaram
(supra), N.A. Premadasa v The People’s Bank(12), Hameed v
Majibdeen and others(13), K. M. Samrasinghe v R.M.D.
Ratnayake and others(14), Soong Che Foo v Harosha K. De
Silva and others(15), C.A. Haroon v S.K. Muzoor and others(16),
Samantha Niroshana v Senerath Abeyruwan (supra), A.H.M.
Fowzie and two others v Vehicles Lanka (Pvt.) Ltd. (supra)
and Woodman Exports (Pvt.) Ltd. v Commissioner-General of
Labour (17).
The Supreme Court Procedure laid down by way of
Supreme Court Rules made under and in terms of the
provisions of the Constitution cannot be easily disregarded as
they have been made for the purpose of ensuring the smooth
functioning of the legal machinery of this Court. When there
are mandatary Rules that should be followed and when there
are preliminary objections raised on non-compliance of such
Rules, those objections cannot be taken as mere technical
objections.
As correctly referred to by Dr. Amerasinghe,J., in
Fernando v Sybil Fernando and others (18),
“Judges do not blindly devote themselves to procedures
or ruthlessly sacrifce litigants to technicalities, although
parties on the road to justice may choose to act
recklessly.”
If a party so decides to act recklessly it is needless to say
that such a party would have to face the consequences which
would follow in terms of the relevant provisions.

Attanayake V. Commissioner General Of Elections
SC (Dr. Shirani A. Bandaranayake, CJ.) 235
For the reasons aforementioned, I uphold the preliminary
objection raised by learned Senior State Counsel for the 1st to
3rd and 28th respondents and the learned President’s Counsel
for the 4th respondent and dismiss the petitioner’s application
for special leave to appeal for non-compliance with Rule 8(3)
of the Supreme Court Rules, 1990.
I make no order as to costs.
RATNAYAKE,PC.,J. – I agree.
DEP,PC.,J. – I agree.
Preliminary objection upheld.
Application dismissed.

236 Sri Lanka Law Reports [2011] 1 SRI L.R.
GAMINI VS. ATTORNEY GENERAL
COuRT OF APPeAL
SISIRA De AbReW. J
CHITRASIRI. J
CA 227/2008
HC GAMPAHA 24/2002
DeCeMbeR 12, 2011
Penal Code – Murder – Section 294 – Exception 4 – Section 296 – No
defence of grave and sudden provocation taken up – Should the
trial Judge consider such a plea?
Held:
(1) Though the accused-appellant in his defence did not take up the
defence of grave and sudden provocation, the trial judge must
consider such a plea in favour of the accused- appellant if it
emanates from the evidence of the prosecution.
(2) Failure on the part of the petitioner or his Counsel to take up
a certain line of defence, does not relieve a judge of the
responsibility of putting to the jury such defence if it arises on the
evidence.
APPEAl from the judgment of the High Court of Gampaha.
Cases referred to:-
1. K vs. Bellanvithanage Withanage Edwin – 41 NLR 345
2. K vs. Albert Appuhamy 41 NLR 505
3. K vs. Withanalage Lanty – 42 NLR 317
Indika Malawarachchi for accused-appellant
Haripriya Jayasundara SSC for AG

Gamini Vs. Attorney General
CA (Sisira de Abrew J.) 237
December 12th 2011
SiSiRA DE AbREw J.
Heard both counsel in support of their respective cases.
The accused appellant in this case was convicted of the
murder of the man named Ranjith Premalal and was
sentenced to death. being aggrieved by the said conviction
and the sentence the accused appellant has appealed to this
court.
Facts of this case may be briefy summarized as follows:
On the day of the incident the deceased and his
brother-in-law Jayarathne after consuming liquor came
on to the road. The deceased whilst going on the road met
the brother of the accused Siriwardana and thereafter the
deceased started scolding said Siriwardana. After an
exchange of words between the deceased and Siriwardana for
about 10 minutes, Jayarathna who was with the deceased
started separating both Siriwardana and the deceased. As a
result of Jayarathna’s action Siriwardana was pushed and
he fell on the ground. The fght between Siriwardana and the
deceased took place for about two minutes. This incident has
taken place inside the land of the accused appellant. After the
fght between Siriwardana and the deceased, Jayarathna was
taking the deceased away from the place of fght. Just then
the accused who was inside his house came and stabbed the
deceased with a spear. He inficted only one injury. When
we consider all these matters we are of the opinion that the
accused has acted under grave and sudden provocation.
Although the accused appellant in his defence did not take
the defence of grave and sudden provocation, the trial judge
must consider such a plea in favour of the accused appel-
lant if it emanantes from the evidence of the prosecution.

238 Sri Lanka Law Reports [2011] 1 SRI L.R.
This view is supported by the judicial decisions. In King Vs.
Bellanavithanage Edwin(1) wherein the Court of Criminal
Appeal held thus:
“In a charge of murder it is the duty of the judge to put
to the jury the alternative of fnding the accused guilty of
culpable homicide not amounting to murder when there
is any basis of such a fnding in the evidence on record,
although such defence was not raised nor relied upon by
the accused”.
In King Vs. Albert Appuhamy(2) at 505 the Court of Criminal
Appeal held thus:
“Failure on the part of a prisoner or his counsel to take
up a certain line of a defence does not relieve a judge of
the responsibility of putting to the jury such defence if it
arises on the evidence.”
In King Vs. Withanalage Lanty(3) Court of Criminal Appeal
observed the following facts:
“There was evidence in this case upon which it was open
to the jury to say that it came within exception 4 to
section 294 of the Penal Code and that the appellant was
guilty of culpable homicide not amounting to murder. No
such plea, however, was put forward on his behalf. In the
course of his charge the presiding judge referred to this
evidence as part of the defence story but not as evidence
upon which a lesser verdict possibly be based”.
Held that “It was the duty of the presiding judge to have
so directed the jury and that in the circumstances, the
appellant was entitled to have the beneft of the lesser
verdict”.

Gamini Vs. Attorney General
CA (Sisira de Abrew J.) 239
Applying the principles laid down in the said judicial
decisions, we hold that the learned trial judge should have
convicted the accused appellant for the offence of culpable
homicide not amounting to murder under section 297 of the
Penal Code on the basis of grave and sudden provocation.
For these reasons we set aside the conviction of murder and
the death sentence and substitute a conviction for culpable
homicide not amounting to murder which is an offence
under section 297 of the Penal Code under grave and sudden
provocation.
In passing the sentence we are mindful of the fact
that the incident took place inside the accused appellant’s
premises. Considering these matters and all the facts of the
case, we sentence the accused appellant to a term of six years
rigorous imprisonment and to pay a fne of Rs. 10,000/-. In
default of the fne we sentence him to a term of one year simple
imprisonment. Subject to the above variation of the convic-
tion and the sentence appeal of the appellant is dismissed.
We direct the Prison Authorities to implement the
sentence imposed by this court from the date of conviction
(01.08.2008).
The learned High Court Judge is directed to issue a
fresh committal indicating the conviction and the sentence
imposed by this court.
CHiTRASiRi, J – I agree.
Appeal dismissed.
Subject to Variation.

240 Sri Lanka Law Reports [2011] 1 SRI L.R.
KUSUMADASA VS. STATE
COuRT OF APPeAL
RANJITH SILvA. J
SISIRA De AbReW. J
LeCAMWASAM. J
CA 72/2005 (Db)
HC RATNAPuRA 95/2001
FebRuARY 2, 8, 2011.
Penal Code – murder – Section 296 – Conviction based on circum-
stantial evidence – Inference to be drawn? – Evidence Ordinance-
Section 114 (g) – Ellenborough principle – only when a strong
prima facie case has been made out?
The accused appellant was convicted of the murder of one J and was
sentenced to death. The case for the prosecution depended on circum-
stantial evidence.
In appeal
Held:
(1) In considering the force and effect of circumstantial evidence,
in a trial for murder, the fact that the deceased was last seen
in the company of the accused loses a considerable part of its
signifcance if the prosecution has failed to fx the exact time of the
death of the deceased.
(2) To apply the dictum of Lord ellenborough it is incumbent on the
prosecution to put forward a strong prima facie case. When the
prosecution has not put forward a strong prima facie case the
dictum of Lord ellenborough cannot be applied. It cannot be used
to give life to a weak case put forward by the prosecution.
(3) In a case of circumstantial evidence, if the proved facts are com-
patible with the innocence of the accused he cannot be convicted
of the offence. Further if the proved facts are not consistent with
the guilt of the accused he cannot be convicted for the offence.

Kusumadasa Vs. State
CA (Sisira de Abrew J.) 241
In a case of circumstantial evidence, it is the duty of the trial Judge
to tell the jury that such evidence must be totally inconsistent
with the innocence of the accused and must only be consistent
with his guilt.
(4) In the instant case, though there was some substance found
inside the bottle, this was not sent to the Government Analyst.
The substance found in the bottle was suppressed from Court.
This attracts the presumption under Section 114 (g) of the
evidence Ordinance.
(5) In order to base a conviction on circumstantial evidence, the jury
must be satisfed that the evidence was consistent with the guilt of
the accused and inconsistent – with any reasonable hypothesis of
his innocence.
Per Sisira de Abrew. J:
“The prosecution must prove that no one else other than the
accused had the opportunity of committing the offence. The
accused can be found guilty only and only if the proved items of
circumstantial evidence is consistent with their guilt and inconsis-
tent with their innocence.
”Per Sisira de Abrew, J:
“I hold that the prosecution has not proved the charge against the
appellant beyond reasonable doubt”.
APPEAl from the judgment of the High Court of Ratnapura.
Cases referred to:-
1. K vs. Appuhamy – 46 NLR 128
2. R vs. Lochrane and others – 1814 Guinness Report page 478
3. Podi singho vs. K – 55 NLR 49
4. K vs. Abeywickrama – 44 NLR 254
5. Emperor vs. Browning – 1918 – 18 CrLJ 482
6. Don Sunny vs. A.G. 1998 2 Sri LR 1
Indika Mallawaarachchi for accused-appellant
Gihan Kulatunga SSC for Attorney General

242 Sri Lanka Law Reports [2011] 1 SRI L.R.
October 03rd 2011
SiSiRA DE AbREw J.
The accused appellant in this case was convicted of the
murder of a woman named Katayagodage vineetha Jayas-
inghe and was sentenced to death. This appeal is against the
said conviction and the sentence.
Facts
The case for the prosecution depended on circumstantial
evidence. According to the prosecution, the appellant who
was having a love affair with the deceased woman, killed
her. On 18.4.94 around 2.30 p.m. the appellant and the
deceased left the house of the deceased to go on a trip to
Adam’s Peak. The appellant used to visit the deceased twice
a week. The appellant also used to visit her sister who was
living ½ a kilo metre away from the deceased’s house. Around
4.30 p.m. on 18.4.94, the deceased who was on the way to
Adam’s Peak came to the house of Sethuhamy, an aunt of the
deceased and put her things in a traveling bag which she took
from Sethuhamy. She also took her chain and a pair of ear-
rings from Sethuhamy. Sethuhamy says on this occasion the
appellant went to his sister’s house which was about 170
meters away from her house. There is no evidence to suggest
that the accused took a separate bag. The deceased when
going on the trip, had taken sweet meat, a can, two tooth
brushes, clothes etc with her. Dharmasena a relation of the
deceased had seen the appellant and the deceased boarding
a bus bound to Imbulamura on 18.4.94. However the
deceased did not return home. On 26th of April 1994 her
decomposed body was found in the Government forest
in Rukmalkandura in the Grama Sevaka division of
Imbulamura. vide pages 34 and 42 of the brief. Several parts

Kusumadasa Vs. State
CA (Sisira de Abrew J.) 243
of her body were eaten by wild animals. To reach the place
where the body was found one has to go on Imbulamura-
Depamulla village Council road for ¾ of a mile, 200 yards on
a foot path and thereafter about 10 yards on a hillock. The
mother of the deceased on 21.4.94 went to the appellant’s
house in Rukmalkandura but did not fnd the appellant
although she met the brother of the appellant. vide pages 73
and 74 of the brief. She did not inform the brother that the
deceased had not returned home. Prosecution had failed to
lead any evidence with regard to the distance between the
place where the dead body was found and the accused’s
house. On 21.4.94 Nihal Jayasinghe the brother of the
deceased met the appellant in the appellant’s sister’s house
but did not inform that the deceased was missing. The
appellant who was arrested on 3.5.94 in his dock statement
denied the allegation and said both of them with a crowd
went to Adam’s Peak in the month April. On their way back
from Adam’s Peak he got down at a place called Soragune
to go to his mine where he worked. He further informed the
deceased that he would come back to her house if he would
not fnd work but would stay back if he would fnd work. He
surrendered to the police when his mother informed him that
the police were looking for him.
items of circumstantial evidence relied upon by the
prosecution
When one considers the submission of learned SSC it
appears that he was relying on the following items of circum-
stantial evidence.
1. The love affair between the appellant and the deceased.
2. The fact that the appellant and the deceased left together
on 18.4.94 and the fact that both of them left alone.

244 Sri Lanka Law Reports [2011] 1 SRI L.R.
3. The body of the deceased was found in the accused’s
home town.
4. The recovery of a pair of shorts belonging to the appellant
from the place where the dead body was found.
5. The appellant and the deceased were seen boarding a bus
to Imbulamura on the 18th of April 1994.
6. The appellant was seen at the house of the sister of the
appellant on 24th of April which was near the deceased’s
house (half a kilo meter from the deceased’s house – 170
meters away from the deceased’s aunt’s house).
7. The appellant was seen on the 26th of April where the
dead body was recovered.
8. The fact that the mother of the deceased went to the
house of the appellant in search of the deceased.
9. The appellant did not help or assist in search of the
deceased.
10. Failure of the appellant to visit the deceased’s house
after leaving for Adam’s Peak.
11. On 18th of April prior to leaving for Adam’s Peak the
appellant avoided being seen by the others.
12. Non recovery of the watch, chain and earrings of the
deceased. SSC tried to contend that it was possible for
the appellant to steal them after killing.
13. The appellant was unemployed and did not have money.
14. His reluctance to get married to the deceased.
Analysis of circumstantial evidence.
Learned SSC, on the evidence of Dharmasena, tried
to contend that the appellant and the deceased were seen

Kusumadasa Vs. State
CA (Sisira de Abrew J.) 245
on 24th of April 1994. According to Dharmasena about fve
days prior to the news of death of the deceased, he met the
appellant and the deceased at balangoda bus stand and they
boarded a bus bound to Imbulamura (page 133-134). The
news of death was on 26th. Learned SSC therefore contended
that this day should be 21st of April. but this contention is
negated by the suggestion of the learned prosecuting State
Counsel that this date was 18th of April. This suggestion was
admitted by Dharmasena. This evidence therefore suggests
that the appellant and the deceased were seen boarding a
bus to Imbulamura on 18th of April 1994.
Prosecution tried to lead some evidence with regard to
a message alleged to have been kept with a boutique owner
on the 21st of April. boutique owner was not called to give
evidence. I will not consider this evidence as this is hearsay
evidence. Learned SSC contended that the deceased was last
seen with the appellant. The doctor who conducted the post
mortem examination (PMe) on 28.4.94 says that the death
had taken place about one week prior to the PMe. This shows
that the death was on 21st of April 1994. Thus the fact that
the deceased was last seen with the appellant on 18.4.94
does not strengthen the prosecution case.
Although the learned SSC contended that the dead body
was found in the accused’s home town, there was no evidence
about the distance between the appellant’s house and the
place where the dead body was found. Mudiyanse a villager
who saw the dead body does not talk about the appellant’s
house. The Grama Sevaka too does talk about the appellant’s
house. Therefore the fact that the dead body was found in the
home town of the appellant (the third item relied upon by the
SSC) cannot be considered against the appellant.

246 Sri Lanka Law Reports [2011] 1 SRI L.R.
Finding a pair of shorts belonging to the appellant near
the dead body
This was one of the strong items relied upon by the
learned SSC. In considering this item one should not forget
that both of them being lovers left for Adam’s Peak together.
Therefore it was possible for the appellant to have put his
clothes in the bag of his girl friend. One should not forget
here that that there were two tooth brushes near the dead
body. Anura Kumara, the Grama Sevaka says that the bag
had been ransacked. He noticed this when he went to the
scene. vide page 43 of the brief. IP Kodithuwakku says so
many items such as clothes of the deceased, a pair of shorts
of a male, two tooth brushes, a tube of tooth paste, a cup and
a can etc were strewn near the dead body. This suggests that
at the time of the death or soon after the death the assailant
of the deceased had ransacked the bag. It is not possible to
say that it was done by the wild animals since they would be
more interested in decomposed fesh than the clothes. The
appellant knew that his pair of shorts was in the bag. If the
appellant is the assailant would he keep his pair of shorts
near the dead body and go? This question has to be answered
in the negative. If the appellant committed the murder of
the woman he would have noticed his pair of shorts when
the bag was ransacked. Then would he leave the scene after
noticing his pair of shorts? I say no. I therefore hold that
fnding of a pair of shorts belonging to the appellant at the
scene is compatible with the innocence of the appellant and
not consistent with the guilt of the appellant. Further the
above observation raises a very serious doubt in the truth-
fulness of the prosecution story. In a case of circumstantial
evidence if the proved facts are compatible with the inno-
cence of the accused he must be acquitted. Further if the

Kusumadasa Vs. State
CA (Sisira de Abrew J.) 247
proved facts are not consistent with the guilt of the accused
he must be acquitted. For these reasons I hold that item num-
ber four relied upon by the prosecution is not in favour of the
prosecution but in favour of the appellant. The appellant
must be acquitted on the above facts alone.
I shall now advert to the 6th item relied upon by the
learned SSC. The appellant was seen at Kusumawathi’s house
(sister of the appellant) on 24th of April 1994. Kusumawathi’s
house was only half a kilometer away from the deceased’s
house. Gnanawathi, the mother of the deceased says that
very often appellant visits Kusumawathi’s house. Therefore it
is seen that the appellant visiting Kusumawathi’s house was
a normal thing. Further if the appellant killed the deceased
few days prior to 24th of April, would he come and spend time
in the house of Kusumawathi which was ½ a kilometer away
from deceased’s house. Would he give an opprotunity for the
members of the deceased’s family to come and question him
if he killed the deceased? I can’t answer this question in the
affrmative. It has to be noted here that on 24th of April Nihal
Jayasinghe the brother of the deceased spoke to the appel-
lant at Kusumawathi’s house and he did not tell the appel-
lant that the deceased was missing although he knew that
his sister together with the appellant went on a trip to Adam’s
Peak. When I consider all these matters, I hold the view that
6th item relied upon by the learned SSC cannot be considered
against the appellant. At this stage it is pertinent to consid-
er 10th item relied upon by the learned SSC. That is to say
failure of the appellant to visit the deceased’s house after
leaving for Adam’s Peak. Learned SSC strongly contended
that the appellant being the boy friend of the deceased should
have made inquiries about the deceased. It has to be noted
here that Nihal Jayasinghe did not inform the appellant that

248 Sri Lanka Law Reports [2011] 1 SRI L.R.
the deceased was missing when he spoke to the appellant
on 24th of April at Kusumawathi’s house. (vide page 55 and
61 of the brief). Then how can one argue that the fact that
the deceased was missing was within the knowledge of the
appellant. When the deceased’s mother went to the
appellant’s house on 21st of April she did not meet the
appellant. Then it appears even on 24th of April the fact that
the deceased was missing was not within his knowledge.
under these circumstances one cannot say failure of the
appellant to visit the house of the deceased was because
he killed the deceased. Therefore 10th item relied upon by
the learned SSC is not a strong item of evidence against the
appellant.
I now advert to 7th item relied upon by the learned SSC
which is as follows: “The appellant was seen on the 26th
when the dead body was found”. The evidence shows that the
appellant went to see the dead body. Gnanawathi says that
his son Nihal Jayasinghe went to see the dead body on 26th
of April. She says that the appellant too went to see the dead
body on this day. Nihal Jayasinghe says when he went to
see the dead body in the jungle of Rukmalkadura, police
offcers were present. Then it is seen when the appellant
went to see the dead body police offcers were present at the
scene. Therefore it appears that the appellant, like the other
members of the deceased’s family, had gone to see the dead
body. When all these matters are considered 7th item relied
upon by the learned SSC cannot be considered as an item of
evidence against the appellant.
Learned SSC contended that the appellant did not help or
assist in search of the deceased. This was the 9th item relied
upon by him. It appears from the evidence of the prosecu-
tion that the appellant after 18th had come to the deceased’s

Kusumadasa Vs. State
CA (Sisira de Abrew J.) 249
village only on the 24th on which day Nihal Jayasinghe failed
to say anything about the deceased. On 26th the appellant too
went to see the dead body. Then it is only on 25th of April that
he did not do anything to search the deceased. even on 25th
no one knew that the deceased had died. Thus the 9th item
relied upon by the learned SSC is not a strong item of
evidence against the appellant.
I now advert to 11th item relied upon by the learned
SSC which is as follows: “On 18th of April prior to leaving
for Adam’s Peak the appellant avoided being seen by others.
Learned SSC contended when the deceased went to
Sethuhamy’s house to collect a travelling bag the appellant
did not go to this house. He therefore contended that the
appellant avoided being seen by others. but Sethuhamy
herself says that the appellant went to his sister’s house
(Kusumawathi’s house) which was only 170 meters away
from Sethuhamy. In my view it was quite natural for him to
meet his sister before going to Adam’s Peak. Then one cannot
say that the appellant avoided being seen by others. When
making submission on this point learned SSC lost sight of the
fact that the appellant was spending time at the deceased’s
house from morning of 18th of April until they left for Adam’s
Peak (page 68 and 80 of the brief). For these reasons I hold
that the contention of the learned SSC to be untenable and is
rejected as devoid of merit.
I shall now advert to 12th item relied upon by the learned
SSC which as follows: “Non recovery of the watch, chain and
earrings.” His contention was that it was possible for the
appellant to steal these items after killing her. In my view non
recovery of these items should be considered in favour of the
appellant and not against him. I reject the said contention as
devoid of merit.

250 Sri Lanka Law Reports [2011] 1 SRI L.R.
I shall now advert to the 13th item relied upon by the
learned SSC which is as follows: “The appellant was unem-
ployed and did not have money.” The deceased was working in
a factory. even for the trip it appears that it was the deceased
who had spent money. Thus it appears that the appellant was
benefted by the deceased. Then why should he kill her.
Therefore 13th item cannot be considered against the
appellant.
I now consider 14th item relied upon by the learned SSC
which as follows: “The appellant’s reluctance to marry the
deceased.” Somewhere prior to the incident (no evidence
has been led about the period) the appellant had taken two
rings and the wrist watch of the deceased for his mother to
attend a wedding ceremony. When the appellant failed to
return them an inquiry, on a complaint made by her, was held
by the police. At the inquiry he told that he could not marry
her until he would fnd a job. There is no evidence about
the date on which he said this. but even after this incident
the appellant continued to visit the deceased’s home and the
deceased decided to go on a trip to Adam’s Peak. Accord-
ing to Sethuhamy they were behaving like a married cou-
ple (page 87 of the brief). Therefore it appears that the
deceased had accepted him even after he expressed his re-
luctance to marry her. Therefore 14th item is not an item
that can be considered against the appellant. I have earlier
discussed 3rd, 4th, 6th, 7th, 9th to 14th items and expressed
the opinion that they cannot be considered against the
appellant. Prosecution is therefore left only with 1st, 2nd,
5th and 8th items. It has to be noted here even though the
appellant and the deceased were seen boarding together
a bus bound to Imbulamura on 18th of April, death was,

Kusumadasa Vs. State
CA (Sisira de Abrew J.) 251
according to the doctor, on the 21st. Therefore the value of
this item of evidence is very much less. In this connection I
am guided by the judgment of the Court of Criminal Appeal
in The King Vs Appuhamy(1) wherein His Lordship Justice
Keunemen held: “In considering the force and effect of
circumstantial evidence, in a trial for murder, the fact that the
deceased was last seen in the company of the accused loses
a considerable part of its signifcance if the prosecution has
failed to fx the exact time of the death of the deceased.” When
I consider the items of circumstantial evidence led at trial, I
am of the opinion that the prosecution had not put forward
a strong case against the appellant. In my view the case put
forward by the prosecution against the appellant is very weak. It
is necessary to consider whether prosecution case attracts the
dictum of Lord ellenborough. In Rex Vs Cochrane and others(2)
Lord ellenborough remarked:
“No person accused of a 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 power to offer evidence, if such exist, in
explanation of such suspicious circumstances which would
show them to be fallacious and explicable consistent 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 would operate
adversely to his interests.”
To apply the dictum of Lord ellenborough it is incumbent
on the prosecution to put forward a strong prima facie
case against the accused. When the prosecution has not
put forward a strong prima facie case the dictum of
Lord ellenborough cannot be applied. Dictum of Lord

252 Sri Lanka Law Reports [2011] 1 SRI L.R.
ellenborough cannot be used to give life to a weak case
put forward by the prosecution. I therefore hold that in the
instant case dictum of Lord ellenborough cannot be applied.
Finding imitation bangles of the deceased in a bush near
the dead body.
P.S Wijesinghe found an imitation bangle of the deceased
in a bush near the dead body. This was identifed by the
mother of the deceased as that of the deceased (page 181 of
the brief). If this bangle got thrown to the bush when the body
was being eaten by wild animals, then one would expect to
fnd at least small pieces of decomposed fesh in this bangle.
Therefore it is diffcult to conclude that the bangle got thrown
to the bush when the body was being eaten by wild animals.
The appellant had associated with the deceased for about
fve years as her lover. Therefore the appellant should know
that this bangle was an imitation one. If the deceased died
as a result of violence then one can come to the conclusion
that her assailant had thrown imitation bangle and taken her
wrist watch, chain and earrings. If the appellant killed the
deceased and took away the said items then it was not neces-
sary for him to throw the bangle because he knew that it was
an imitation one. Police failed to recover the said items. These
facts raise a reasonable doubt in the truth of the prosecution
case. The above facts are compatible with the innocence of
the appellant and are not consistent with his guilt. If these
facts were considered the appellant could not have been
convicted of the offence of murder. The learned trial judge
has not considered these matters.
In a case of circumstantial evidence, if the proved facts
are compatible with the innocence of the accused he cannot