016-SLLR-SLLR-1998-V-3-CHANDRASENA-AND-OTHERS-v.-MUNAWEERA.pdf
94
Sri Lanka Law Reports
[1998] 3 Sri LR.
CHANDRASENA AND OTHERS
v.MUNAWEERA
COURT OF APPEALJAYASURIYA J..
A. NO. 30-32/83
M.C. TISSAMAHARAMA 10844
DECEMBER 18, 1997.
Code of Criminal Procedure Act – S.165, 203, 306(1) – Reasons belatedlypronounced – Failure to analyse and evaluate the evidence – Burden of provingan ingredient of the charge.
Held:
The learned Magistrate has found the accused guilty on 27.10.82, thereasons were delivered belatedly on 6.12.82.
Per Jayasuriya J.,
"In the circumstances the reasons belatedly pronounced and signed by thelearned Magistrate long after the imposition of the sentence are illegal andvitiated in law. They are pronounced in contravention of the law as they havenot been pronounced within a resonable time or forthwith".
The mere outline of the prosecution and defence without reasons beinggiven for the decision is an insufficient discharge of duty cast upon a judgeby the provisions of S.306(1).
O
The weight of authority is to the effect that the failure to observe theimperative provisions of S.306 is a fatal irregularity.
The onus was on the prosecution to discharge its burden to establish that.the accused unlawfully and without right entered upon the land in occu-pation of the complainant.
Cases referred to:
Ibrahim v. Inspector of Police, 59 NLR 235.
Thusaiya v. Pathihamy – 15 CLW 119.
Verupadian v. Sollamuttu – 1901 1 Brown's Repost 384.
Amsa v. Weerawagu – 1933 Vol. 1 Times Law Reports 50.
Wellakan Kani v. Amadoris – 1915 3 Balasingham Reports 64.
CAChandrasena and others v. Munaweera (Jayasuriya, J.)95
Henricus v. Wijesooriya.
Thiagarajah v. Annaikoddai Police, 50 NLR 109.
Muttusamy v. David (S.l. Police) 50 NLR 432.
Tissera v. Daniels – 49 NLR 162.
Rex v. Davoodulebbe – 50 NLR 274 (D-B Contra).
K v. Deonis – 52 NLR 547.
Rex v. Marshall – 51 NLR 157.
Damayanu v. Regina – 73 NLR 61.
Yohanis v. State – 67 NLR 8.
Gunasiri v. State – 1990 2 SLR 265.
Muthukuttige Siriwardane v. A.G – CA 70/91.
Rex v. H.S.R. Fernando – 48 NLR 257.
APPEAL from the Judgment of the Magistrates Court of Tissamaharama.
S. Wijesinghe PC., with Ms. Dhammika Dharmadasa for Accused Appellants.
Ranjith Abeysuriya, PC., with Ms. Priyadharshani Dias for ComplainantRespondent.
Cur. adv. suit.
December 19, 1997.
JAYASURIYA, J.
have heard both learned President’s counsel appearing for theaccused-appellants and learned President's counsel appearing for thecomplainant-respondent.
The learned Magistrate in a very sparse and scanty judgment hasfailed to analyse and evaluate the evidence that was led before him,particularly in regard to the evidence given by the complainant andthe first accused in relation to the issues that arose in the case whetherthe accused had entered and cut trees on the land belongingexclusively to Atenekkege Hamine or exclusively to U.A.W,Munaweera, the complainant. It is in evidence that the fence betweenthese two lands was not interfered with at all. In those attendantcircumstances it was the paramount duty of the learned Judge to haveanalysed the evidence and closely evalauated the evidence on thesepoints. There is a manifest failure to indulge in such a process orto give reasons having upheld one of the competing versions andin regard to his finding as to the identity of the land in question.
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Sri Lanka Law Reports
[1998] 3 Sri L ft
A perusal of the contents of the Journal entries disclosed that on27-10.82, the learned Magistrate of Tissamaharama had arrived at afinding that the charges preferred against the accused had beenproved and he proceeded to convict the three accused in respect ofcounts 1, 2, and 3 of the charge sheet and he had postponed thepronouncement of the reasons and sentence for 15.11.82. On 15.11.82,he had further postponed the pronouncement of sentence and reasonsfor 29.11.82. On 29.11.82, he had proceeded to impose sentenceson the three accused and he had ordered the first accused to paya sum of Rs. 500 as state costs and imposed a fine of Rs. 250 payableby the second as well as the third accused. He has given them timeto pay the state costs and fines till 6.12.82. The reasons for theconviction appear at page 67 of the type written brief and reasonshave been belatedly delivered and signed by the learned Magistrateon 6.12.82. Since the conviction took place on 27.10.82 the reasonshave been delivered belatedly at a point of time in contravention ofthe law. Vide provisions of section 165 of the Code of CriminalProcedure Act. In the circumstances the reasons belatedly pronouncedand signed by the learned magistrate long after the imposition of thesentences are illegal and are vitiated in law. They are pronouncedin contravention of the law as they have not been pronounced withina reasonable time or "forthwith". Vide section 165 in regard to theMagistrate's Court Pocedure and section 203 of the said CriminalProcedure Act in regard to the High Court Procedure.
In Ibrahim v. Inspector of Policethe Supreme Court emphasisedthat the mere outline of the prosecution and defence without reasonsbeing given for the decision but embellished by such phrases as "Iaccept the evidence of the prosecution and I disbelieve the defence"is by itself an insufficient discharge of duty cast upon the Judge bythe provisions of section 306(1) of the Criminal Procedure Code. Videalso the decision in Thusaiya v. Pathaimany(2> by Nihill J – Accordingto the presently applicable section 283(1) of the Code of CriminalProcedure Act No. 15 of 1979, the Judgment shall contain the pointor points for determination, the decision thereon and the reasons forthe decision. In Verupadian v. SollamuttuP* the Supreme Court stressedthat the object of the statutory provision is to enable the SupremeCourt to have before it the specific opinion of the Judge in the lowerCourt on the question of fact, so that it may enable the Court toascertain whether the finding is correct or not. The weight of authorityis to the effect that the. failure to observe the imperative provisions
CAChandraserta and others v. Munaweera (Jayasuriya, J.)97
of this section (see 306) is a fatal irregularity and that even in a simplecase that the provisions of this statute must be complied with. VideAmsa v. Weeravaguw Wellekankani v. AmadorisP1 Henricus v.Wijesooriysi® Thiagarajah v. Annaikoddai Police!® per Nagalingam J;and Muthusamy v. David (S.l. Policeat 432 per Basnayaka, J;Tissera v. Daniels!9) Rex v. Davoodulebbe!'® (D.B-contra).
Further, the accused have alleged and asserted that the consentand permission of the complainant was obtained for the entry uponthe land. It is open to an accused person to make any assertion orallegation in Court with a view to throw doubt on any of the ingredientsof the offence which the prosecution is under a duty to prove beyondreasonable doubt. In such a situation the accused does not in lawincur a burden or a onus of proof. Vide King v. Deonist111 per Justice
H. T. Gunasekara. Rex v. Marshall'® Damayanu v. Regina!'®Yahonis v. State!'® Gunasiri v. State!'® – Muttukutige Siriwardena v.AG<16) Rex v. H. S. R. Fernando!'®. The onus was on the prosecutionto discharge its burden to establish that the accused unlawfully andwithout right entered upon the land in occupation of the complainant.In these circumstances it was a misdirection on the part of the learnedJudge to have held that the burden of proving an ingredient of thecharge is on the accused and that burden is required by law to bedischarged beyond reasonable doubt. He has clearly misdirectedhimself both in regard to the burden of proof and in regard to therequisite standard of proof in stating thus: 60o®9 ddS®e>0 cmokxxB6 a@De<£f <g>Q®eodzsf 2s^fi®0 e^®-8o@zsdj Ozaen Q SO SsfScs
SSzrf C3t@o>sf®dg zsd sewS^ed.
For the aforesaid reasons, I proceed to set aside the proceedings,findings, convictions and sentences imposed by the learned Magistrateand in the interests of justice I direct that a – de novo – fresh trialbe held before the present Magistrate of Tissamaharama. The appealsare allowed but a retrial is ordered.
Appeal allowed.
Retrial ordered.