045-SLLR-SLLR-1998-V-3-AMARASEKERE-v.-ATTORNEY-GENERAL.pdf
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AMARASEKERE
v.ATTORNEY-GENERAL
COURT OF APPEALISMAIL, J„
DE SILVA, J.
C.A. NO. 53/96
H.C. GAMPAHA NO. 41/95
NOVEMBER 11 AND 21, 1997.
Murder – Code of Criminal Procedure Code – S. 203, S. 283 (1) – Trial withouta Jury – Verdict – Duty to give reasons.
The accused-appellant was indicted with the murder of his brother before theHigh Court Judge sitting without a jury – Accused was sentenced to death aftertrial.
It was contended in appeal that the trial judge had erred in law by failing toindicate in his order that he had considered all the relevant and material points,and further failed to indicate in his judgment that he was in fact alive to the pointsof law requiring determination.
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Held:
This was a trial without a jury and hence the trial judge was not requiredto lay down the law as in the case of a trial before a jury.
The trial judge in a trial without a jury had to record a verdict giving hisreasons as provided for under S. 203 Criminal Procedure Code.
Having regard to the principles set out above, it appears that the trial judgehas complied with the provisions of S. 283. Crfmind Procedure Code.
APPEAL from the judgment of the High Court of Gampaha.
Cases referred to:
Thiagaraja v. Annakoddai Police – 50 NLR 107 at 111.
Haramanis Appuhamy v. IP Bandaragama – 66 NLR 526.
Ibrahim v. IP Ratnapura – 59 NLR 235.
Karunaratne v. The Queen – 69 NLR 10 at 17.
Mukhtiar v. State of Punjab – 1995 Supreme Court cases (Cri) 296.
State of Andra Pradhesh v. Gowthu Ranghunayakulu and others – 1995Supreme Court cases (Cri) 540.
Dr. Ranjit Fernando with Ms. Anoja Jayaratne for accused-appellant.
Kapila Waidyaratne, SSC for AG.
Cur. adv. vult.
December 15, 1997.
ISMAIL, J.
The accused-appellant was indicted with the murder of his brotherGaneachi Pathirannehelage Upasena on 12th July '92 at Happitya andwas tried before the High Court Judge sitting without jury in the HighCourt, Gampaha. The trial commenced on 5.3.96. The witnesses forthe prosecution were Jayakody Aratchilage Heya Nona, the agedmother of the deceased; Ganeachi Pathirannehelage Nandasena, abrother of the deceased; SI Thilakasiri Perera, the investigating officer;and Dr. N. A. Gunatilleke, who performed the. post-mortem exami-nation. The accused did not give evidence or make a statement fromthe dock. He was found guilty and was convicted of the charge. Hewas sentenced to death. The reasons have been set out by the trialjudge in his judgment dated 1.4.96. This appeal is against the saidconviction and sentence.
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The deceased is a younger brother of the accused. They are twoof seven sons in the family. Their father died several years ago. Theeldest son had died of natural causes while the youngest of themhad also been killed earlier. The deceased was engaged in paddycultivation with another brother in Rajangana but he had come backto look after their 93-year old mother Heya Nona, the only eyewitnessto this killing.
Heya Nona lived separately in a hut with her deceased son inthis land planted with coconut trees. The land was undivided and wasjointly owned by them. The accused and his family occupied theparental house which was about 100 yards away. Heya Nona hadvacated this house due to certain differences with him.
Heya Nona appears to have been active for her age because onthe evening of the date of this incident she had gone out alone tothe boutique to buy tea leaves and sugar and had returned at about5 pm. The deceased son Upasena had returned earlier after workat about 4 pm. He was lying down on an improvised bed in the huttalking to his mother who was seated on the floor. The bed on whichthe deceased was lying could be seen from outside the hut. The timewas about 6.30 pm. The evidence of Heya Nona is that she sawthe accused walking across the compound. She spoke to him but hewent without replying her. She stated that the deceased Upasena too,had asked him why he was going without speaking. About threeminutes later the accused came into the hut and in her presence cutthe deceased who was lying down several times. He then went away.The deceased had not spoken and appears to have died immediately.The mother Heya Nona came out of the hut and raised cries. Shecried out towards the house beyond the field where her son Nandasenawas living.
Dr. Gunatilleke who did the post-mortem examination found thefollowing injuries on the body of the deceased:
7" long 1 1/2" deep 1/2" wide cut, which extended from theleft side of the forehead backward on the left aspect of the headabove the ear cutting the scalp, skull and brain matter.
6 1/2" long 1 1/2" deep 1/2" wide cut, running parallel and1/2" 1/2" below the injury No. 1 cutting the scalp, bone andbrain matter.
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3.8" long 2“ deep (at the centre) and 1“ wide cut parallel and
1" below injury No. 2 extending from the mid nose on the leftaspect of the face backward cutting the ear at the middle, theskull and brain matter.”
The cause of death in the opinion of Dr. Gunatilleke was cranio-cereberal injuries caused by a sharp cutting weapon.
Learned counsel for the accused-appellant submitted that the trialjudge had erred in law by failing to indicate in his order that he hadconsidered all the relevant and material points on the facts arisingfor and needing determination. It was submitted that the trial Judgehad failed to determine the probative value of the unsupported evidenceof the sole witness with failing faculties in the light of her hostilitytowards the accused. It was pointed out that the accused himself hadmade no attempt to abscond and that he was arrested in the samegarden a few hours later. However, it appears from his judgment thatthe trial Judge had no hesitation in accepting the evidence of HeyaNona. Although she has given her age as 93 at the time she gaveevidence she has withstood the lengthy cross-examination by thedefence counsel. She has been consistent in her evidence. Herevidence has been corroborated to a great extent by the evidenceof her son Nandasena. He confirmed that his mother raised cries andthat when he went there, that she had told him that the accused,his brother Amarasekere, had attacked the deceased several times.The defence has failed to give any convincing reason as to why the93-year old mother of the accused would want to implicate him inthe murder of another son.
It was also submitted that the trial judge had failed to addresshis mind to the significance of Nandasena's evidence. It was pointedout that Nandasena had failed to tell the police that his mother HeyaNona had told him that the accused Amerasekera had attacked hisbrother. The evidence of Nandasena is that he had heard from twopersons named Bandula and Wasantha that his mother had raisedcries that Amerasekera had attacked the deceased. Nanadasena wentthere a little while later at about 8 pm when it was dark, taking withhim a torch and a manna knife, possibly for his protection. Nandasena
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was consistent in his evidence and stated that he did not see theincident but confirmed that his mother told him when he went therethat his brother Amerasekera had attacked the deceased. His failureto disclose to the police that his mother had told him that Amarasekeraattacked the deceased cannot be a factor which could be used todiscredit the evidence of either his mother or himself. It appears fromthe judgment that the trial judge has evaluated and analysed theprincipal points in the evidence of the main witnesses and thesubmission in this regard by the defence counsel cannot thereforebe accepted.
The next submission was that the trial judge erred in law by failingto indicate in his judgment that he was in fact alive to the points oflaw requiring determination, thereby failing to comply with theprovisions of section 283 (1) of the Code of Criminal Procedure Act.This was a trial without a jury and hence the trial judge was notrequired to lay down the law as in the case of a trial before a jury.The trial judge in this instance of a trial without a jury had to recorda verdict giving his reasons as provided for in section 203 of the Codeof Criminal Procedure Act. The Code does not define a judgment butin interpreting the provisions of section 283 (1) of the Code dealingwith judgments of trial courts, the need to set out the reasons fora decision has been emphasized in several judgments. – seeThiagarajh v. Annakoddai Police at 111; Haramanis Appuhamy v.IP Bandaragamef2) Ibrahim v. IP RatnapuraPK
T.S. Fernando, J. in Karunaratne v. The Queeri4) at 17, observedthat; "in a case of importance to persons charged and prosecutionalike, and a bribery case is invariably one such, a trial judge owesa duty to the parties to address himself with care to all the pointsparticularly those on which an appeal lies to this court".
Learned counsel for the accused-appellant has also cited two Indiandecisions, the first being Mukhtiar v. State of Punjab®, in which thejudgment of the trial court was not sustained for the following reasons:
"The trial court appears to have been blissfully ignorant of the
requirements of section 354 (1) (b) CPC. Since, the first appeal
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lay to the Supreme Court, the trial court should have reproducedand discussed at least the essential parts of the evidence of thewitnesses besides recording the submissions made at the bar toenable the appellate court to know the basis on which the 'decision'is based. A 'decision' does not merely mean the 'conclusion' -it embraces within its fold the reasons which form the basis forarriving at the 'conclusions’. The judgment of the trial court containsonly the conclusions and nothing more. The judgment of the trialcourt cannot, therefore, be sustained".
In the other Indian case of State of Andhra Pradhesh v. GowthuRanghunayakutu and otherd6>, the Sessions Judge had perfunctorilycome to the finding that the prosecution has failed to prove its casebeyond doubt, without a proper appraisal and marshalling of theevidence. It was held that: "in the absence of a proper formulationof the points for decision, the examination of evidence and specificpointwise finding, the judgment was not in accordance with section354 and not proper".
Having regard to the principles set out above and upon a carefulconsideration of the judgment in the present case, it appears to methat the trial judge has complied with the provisions of section 283of the Code of Criminal Procedure Act. He has set out the chargeand has dealt with the evidence of the principal witnesses in relationto it and has set out the reasons for his decision in finding the accusedguilty. The submissions of defence counsel cannot therefore beaccepted.
The conviction and the sentence are affirmed. The appeal isdismissed.
DE SILVA, J. – I agree.
Appeal dismissed.