011-SLLR-SLLR-2010-V-2-CHUTIMALLI-AND-ANOTHER-vs.-STATE.pdf
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CHUTIMALLI AND ANOTHER VS. STATECOURT OF APPEALSISIRA DE ABREW. JABEYRATNE. JCA 100/2005
H.C. HAMBANTOTA 66/2001
Penal Code – Murder – Convicted – Contradictions marked – Is theprosecution or defence entitled in re-examination to mark theother portions of the statement to remove wrong impression?Reasonable doubt as to identity?
The two accused – appellant were convicted of the murder of one D andwere sentenced to death.
In appeal it was contended that the wife of the decease failed to identifythe two accused.
Held
Where, however a witness has been contradicted by certain partsof his former statement the prosecution or the defence as thecase may be is entitled in re-examination to put to him other por-tions of his statement which have not been put to him, in order torebut the inferences likely to be drawn and thereby indirectly tocorroborate him.
Contradiction gives the impression that the witness has notmentioned the names of two accused persons in her statementmade to the Police, if the witness has mentioned the names ofthe two accused persons in a statement prosecuting Counselbecomes entitled to mark the said portion of the statement when theabove contradiction is marked – when V3 is considered it creates areasonable doubt in the identity of the accused-appellant.
APPLICATION from the judgment of the High Court of Hambantota.
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ChutimalU and another vs. State
(Sisira de Abrew, J.)
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Cases referred to:-
Fox vs. General Medical Council – 1960 1 WLR 1017 at 1025
R vs. Roberts -1942 – 28 Cr. A.R. 102
R. vs. Bengamin -1918 – 8 Cr. A.R. 146
Ranil Samarasuriya for 1st accused-appellant.
Chatura Galena for 2nd accused-appellant.
S. Thurairajah DSG for AG.
December 04th 2008SISIRA DE ABREW, J.
Heard both Counsel in support of their respective cases.
The two accused-appellants were convicted of themurder of a man named Kodituwakku KankanamlageDharmasena and were sentenced to death.
Both Counsel for the accused-appellants take-up theposition that the identity of the both accused-appellants hasnot been established beyond reasonable doubt. In substanti-ating the arguments they draw our attention to contradictionmarked “V3’ at page 92 where, Indrani, the wife of thedeceased, had told the Police that, at the time of the incident,two people ran away from the scene of offence.
According to the prosecution case two accused-appellantscame near the bed of the deceased and attacked the deceasedwith weapons and thereafter they ran away from the bed roomof the deceased.
Learned Counsel for the 1st accused-appellant, harpingon the said contradiction, is trying to contend that thewitness Indrani, the wife of the deceased, failed to identify the
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two accused. Although the learned defence counsel markedthe said contradiction he has failed to mark an omissionthat witness Indrani failed to mention the two names of theaccused-appellants in her statement made to the Police. Thissuggests that the two names had been mentioned by witnessindrani in her statement. But, unfortunately learnedprosecuting State Counsel, failed to draw the attention of thetrial Court to the other parts of her statement. ContradictionV3 gives the impression that the witness has not mentionedthe names of two accused persons in her statement made tothe Police. If the witness has mentioned the names of the twoaccused persons in her statement, prosecuting State Counselbecomes entitled to make the said portions of the statementwhen the above contradiction is marked.
This view is supported by the following legal literature.“Where, however, a witness has been contradicted by certainparts of his former statement, the prosecution or the defenceas the case may be, is entitled in re-examination to put tohim other portions of his statement which have not been putto him, in order to rebut the inferences likely to be drawnnd thereby indirectly to corroborate him. This represents theinvariable practice of our Courts and is based of fair playand justice, since the contradictions only paint a part of thetrue picture”. See Fox vs. General Medical Counsel(1) at 1025,Rex vs. Roberts?' and Law of Evidence by E.R.S.R.Coomaraswamy volume 2 book 2 page 773.
Applying the principles laid down in the above legalliterature, I hold that when a contradiction is marked with aformer statement of a witness, the prosecution or the defenceas the case may be, is entitled in re-examination to markthe other portions of his statement to remove the wrongimpression created by the contradiction. But the prosecution
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or the defence can’t adopt this procedure to corroborate thewitness with his former statement.
Considering all these matters, I am of the view that thelearned Prosecuting State Counsel should have markedthe order portions of the statement to remove the wrongimpression created by the contradiction.
In my opinion, there is evidence' that should beconsidered by a trial Court. However, the Prosecuting StateCounsel has failed to do his duly as stated above. When V3’is considered, it creates a reasonable, doubt in the identity ofthe accused-appellants. Therefore, we are unable to permitthe conviction to stand.
In these circumstances, we set aside the conviction andthe death sentence and order a re-trial.
Since the offence is alleged to have been committed inthe year of 1998, we direct the learned High Court Judge ofHambantota to expeditiously hear and conclude this case.
UPALY ABEYRATHNE, J. – I agree.
appeal allowed.
Trial de Novo ordered.