052-SLLR-SLLR-2002-3-ANIL-JAYANTHA-v.-THE-ATTORNEY-GENERAL.pdf
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Anil Jayantha v. The Attorney-General
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ANIL JAYANTHAv.
THE ATTORNEY-GENERAL
COURT OF APPEALFERNANDO, J„ ANDEDIRISURIYA, J.
CA NO. 34/2000HC BALAPITIYA NO. 84306JULY 09, 2002
Penal Code, section 296 – Capital charge – Duty of prosecutor to draw attentionto items of evidence which cast serious doubts – Intervention of court – CriminalProcedure Code, section 122 (3).
Held :
Though a prosecutor is not bound to expose every infirmity and weakness in hiscase yet when a person is brought up on a capital charge and there is someitem of evidence which casts serious doubts on his guilt, it is the duty of theprosecutor to draw the attention of the trial Judge to such evidence.
APPEAL from the judgment of the High Court of Balapitiya.
Cases referred to :
Fernando v. The Queen – 76 NLR 265 at 266.
Muthubanda v. The Queen – 73 NLR 8.
K. v. Cooray – 28 NLR 83.
Ranjit Abeysuriya, PC with Sharmane Gunaratne and Lanka de Silva foraccused-appellant.
Palitha Fernando, Deputy Solicitor-General for Attorney-General.
Cur. adv. vuit.
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September 09, 2002EDIRISURIYA, J.
In this case initially four accused were indicted for having on or oiabout 1995. 11. 07 caused the death of one Indunil Silva an offencepunishable under section 296 of the Penal Code. Since 1st and 4thaccused were dead the indictment was amended and trial against the2nd and 3rd accused was taken up before the High Court Judge ofBalapitiya without a Jury.
Widow of the decased Wickrama Nishanthi de Silva gave evidenceto the following effect: On 1995. 11. 07 her husband came home andleft the house in the morning saying that he was going to Colombo.She too walked with him carrying the little child in her arms. They 10walked along the railway track. She stopped near the crossroad.
Just at that time she saw 1st accused Sarath Prema de Silvaalias Sisira come running on the tarred road, from the direction ofC2f!c. Sisira attacked the deceased either with a sword or a manna.One blow struck the deceased’s left leg. The deceased fell down.She was about 40 feet away from where he lay fallen.
She was shocked by this incident and hid herself in the jungle.She did not have the strength to shout. Thereafter, the accusedLiyanage Anil Jayantha came and struck the deceased on the headwith an axe. At the same time Jayawardane and Anulawathie also 2°came. The 4th accused Jayawardane had a knife in his hand.
Professor Niriellage Chandrasiri who performed the post-mortemexamination on the deceased said that there were 17 external injurieson the body of the deceased. He said all the injuries taken togethercould cause death in the ordinary course of nature. He said that deathwas due to shock caused by bleeding from the injuries. He also saidthat he could not conclude that these injuries were caused with anaxe.
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Anil Jayantha v. The Attorney-General (Edirisuriya, J.)
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Jayawardane did not do anything. Sisira’s mother Anulawathieshouted ”®dafcD". Anulawathie attempted to prevent the witness from 20going to the police. The witness said that she made a complaint tothe police.
The learned High Court Judge has acquitted the 3rd accusedAnulawathie on the basis that there was no participatory presenceon her part. The 1st and 4th accused were dead at the time of thetrial.
The learned counsel for the 2nd accused-appellant submitted thatthis witness in her statement to the police just after the incident hasnot mentioned the name of the second accused as one of the personswho attacked her deceased husband or that he had a weapon in his 30hand. He further submitted that the defence counsel at the trial hasfailed to bring this material omission to the attention of court. However,the learned counsel for the appellant submitted that the learnedcounsel who appeared for the accused at the trial has stated inhis address that this witness has not mentioned the fact that thesecond accused attacked the deceased or that he had a weaponin his hand.
The learned counsel for the accused-appellant referred us to ajudgment of Sirimane, J. in Fernando v. The Oueen.(1) His Lordshiphas stated other two judges agreeing that: “Though a prosecutor is 40not bound to expose every infirmity and weakness in his case yetwhen a person” is brought up on a capital charge, and there is someitem of evidence which casts serious doubts on his guilt we thinkit is the duty of the crown to draw the attention of the trial judgeto such evidence. Had this been done as was pointed out by thiscourt in Muthubanda v. The Queen® the trial judge would undoubtedlyhave prominently placed this matter before the Jury and drawn theirattention to the serious discrepancy between the evidence in courtand the statements to the police.
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Facts in the above case are as follows: The prosecution alleged sothat around midnight, the appellant had entered the house of thedeceased through the roof and struck both the deceased and his wifeMaria with a blunt weapon probably an iron rod.
The deceased succumbed to his injuries a couple of days later.
He and his wife were both over 70 years of age. There were no otherinmates of that house. Therefore, the prosecution case dependedmainly on the identification of the accused by Maria. She stated inher evidence that on hearing a noise she got up, lit a lamp and sawthe appellant striking a blow on her husband followed by a blow onher. She knew the accused. He had been their tenant for about six eomonths, and had left a few days before this incident after someunpleasantness having it is alleged uttered a veiled threat. Theprosecution relied on this fact as evidence of motive. His Lordshiphas stated that “If indeed he had been seen by Maria, she shouldhave no difficulty in identifying a person whom she knew so well".
The defence strongly challenged this evidence and placed beforethe Jury the deposition of the doctor who had examined Maria andher husband at about 10.00 am next morning. Both of them had toldhim that they were assaulted “by burglars". Since it appeared thatthe discrepancy was a very serious one Their Lordships who heard 70the appeal thought it necessary in the interests justice to ascertainwhat exactly the witness Maria and her husband had told the policeofficer who questioned them, undoubtedly with the primary object ofascertaining the identity of the assailant. The extracts from the PoliceInformation Book furnished to court showed that their statements wererecorded at 5.15 pm on the following evening. Both of them hadcategorically stated that they did not know who their assailant was.
In the above case Their Lordships were of the view that had thestatements of Maria and the deceased been placed before the Juryit was impossible to say that they would have returned a verdict 80adverse to the accused.
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Anil Jayantha v. The Attorney-General (Edirisuriya, J.)
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Also I think it is pertinent to consider the case of Muthubandav. The Queen (supra). In this case the accused who was chargedwith murder was convicted by a five to two verdict of the Jury ofculpable homicide not amounting to murder. A material question thatarose for consideration was whether the deceased had a gun withhim at the time he was attacked by the accused. If the deceasedhad a gun, it was not unlikely that the accused struck the deceasedwith a sword fatally in the exercise of the right of private defence.The two eyewitnesses for the prosecution stated in their evidencein chief that the deceased had sent away the gun shortly beforethe time of attack.
In cross-examination also they denied that the gun was with thedeceased at the attack. But, in their statements to the police soonafter the incident they had made no mention of the fact that thedeceased sent away the gun at any stage. This serious discrepancybetween their evidence in court and their statements to the policewas not brought to the notice of the trial judge by the Crown Counsel.
His Lordship Alles, J. held with other two judges agreeing that thiswas a case which required the intervention of the court in terms ofsection 122 (3) of the Criminal Procedure Code.
Again in the Divisional Bench Case, King v. CoorayS3) His LordshipGarvin, ACJ. dealing with the proper approach to the cross-exami-nation of witnesses from the statements recorded in the course ofa police investigation observed thus: “It may indicate lines of inquirywhich should be explored in the interests of justice, or may discloseto a judge that a witness is giving in evidence a -story materiallydifferent from the story told by him to the investigation after theoffence”. I
I think, therefore, in the instant case the learned trial judge shouldhave given his mind to the submission made by the counsel for theaccused that though the eye-witness testified in court that Anil attacked
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the deceased with a weapon she had not told the Police that he hadany weapon in his possession or that he attacked the deceased withit. It would appear that this line of defence was not taken up at thetrial except at the stage where the defence counsel delivered hisaddress.
Ajith Wijesooriya, a retired Inspector of Police, said the deceasedtold him that the first and the second accused attacked with a sword.
(0SCS. e£gS ®§o0efi 06×5 eateo).
This dying declaration does not support the evidence of Nishanthiewho has said the second accused attacked the deceased with an axe.Also her statement to the police states that he was at the scene butdoes not say that he had a weapon or that he attacked the deceased.Professor Niriellage Chandrasiri's testimony is that the injuries couldnot have been caused with an aXe.
Therefore, when one takes Nishanthi's evidence the conclusionone can come to is that the 2nd accused was merely present atthe scene. Had the trial judge considered this discrepancy inNishanthi's evidence it would have become clear that it was unsafeto convict the second accused-appellant on the evidence givenagainst him by Nishanthi.
In the attendant circumstances I quash the conviction for murder.Accordingly, I set aside the sentence of death imposed on the 2ndaccused-appellant and acquit him.
FERNANDO, J. – I agree.
Appeal allowed.
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