019-SLLR-SLLR-2010-V-2-DHARMASIRI-vs.-REPUBLIC-OF-SRI-LANKA.pdf
Dharmasiri vs. Republic of Sri Lanka
241
CA
DHARMASIRI VS. REPUBUC OF SRI LANKACOURT OF APPEALSISIRA DE ABREW, J.
BASNAYAKE, J.
CA 17/04
HC HAMBANTOTA 44/99JUNE 17, 2008
Penal Code – Section 296 – Murder – Identification of accusalbeyond reasonable doubt9Information Book -Is it for the Judge toperuse mime? In what circumstancesP – Credibility of a witness -Matter for trial Judge – Belated witness – Could the Court act ona belated witnessP
Three accused were indicted for murder. After trial the 1** and 2ndaccused were convicted of the offence of murder. The 3rd was acquitted.
In appeal it was contended that the identity of the accused-appellantwas not proved beyond reasonable doubt and it was further contendedthat witness M was a unreliable witness, and invited Court to comparehis evidence with his statement made to the Police and to reject hisevidence on the basis of certain omissions which had not been broughtto the notice of Court.
Held
The Appellate Court has no authority to peruse statement ofwitness recorded by the Police in the course of their investiga-tion (statement in the Information Book) other than those properlyadmitted in evidence by way of contradiction or otherwiseSection 122 (3) of the Criminal Procedure Code which enablessuch statements to be sent for to aid a Court is applicable only toCourt of Inquiry or trial.
Per Sisira de Abrew, J.
“Court of Appeal has power to peruse the Information Book onlywhen contradiction or omission was brought to the notice of thetrial Court, and this power too should be exercised in order to
242
Sri Lanka Law Reports
[2010] 2 SR1L.R.
check the correctness of the omission of contradiction markedat the trial and not to come to a conclusion with regard to hiscredibility upon the contents of this statement made to thePolice.”
Credibility of a witness is mainly a matter for the trial Judge, Courtof Appeal will not lightly disturb the findings of a trial Judge withregard to the credibility of a witness unless such findings of trialJudge are manifestly wrong.
Because the witness is a belated witness, Court ought not to rejecthis testimony on that score alone. Court must inquire into thereason for the delay and if the reason for the delay is plausibleand justifiable the Court could act on the evidence of the belatedwitness.
APPEAL from a judgment of the High Court of Hambantota.
Cases referred to
Keerthi Bandara vs. Attorney General – 2000 – 2 Sri LA 249 at 258
Muniratne and others vs. The State 2001 – 2 Sri LR 382
Punchi Mahathaya vs. The State 76 NLR 567 (SC)
Fradd vs. Brown & Company Ltd – 20 NLR 282
Alwis vs. Piyasena Fernando – 1993 – 1 Sri LR 119
Sumarasena vs. A. G. – 1999 – 3 SLR 137
Ranjith Abeysuriya PC with Thanuja Rodrigo for accused-appellant.
Gihan Kularatne SSC for respondent.
June 17th 2008SISIRA DE ABREW J.
Three accused were indicted for the murder of a womannamed Arabuda Gamage Nandawathie and after trial the3rd accused was acquitted of the charge but the 1st and 2ndaccused were convicted of the offence of murder. The 2ndaccused died in prison. The present appeal is in respect of theappeal filed by the 1st accused.
CA
Dharmasiri vs. Republic of Sri Lanka
(Sisira De Abrew, J.)
243
The facts of this case may be briefly summarized asfollows :-
On the day of the incident around 9.00 p.m. when thedeceased, her son Maduranga, her mother Kusumawathe andanother relation were at home, the 1st accused, 2nd accusedand another person entered the house of the deceased andthe 2nd accused fired a shot at the deceased and thereafterthe 1st accused fired another shot at the deceased. Thisincident was witnessed by Kusumawathe and Maduranga.
Learned President’s Counsel on behalf of the 1st accused-appellant submitted that the identity of the accused-appellanthas not been proved beyond reasonable doubt. LearnedPresident’s Counsel submitted that Maduranga was anunreliable witness. He invites this court to compareMaduranga’s evidence with his statement made to the policeand to reject Maduranga’s evidence on the basis of certainomissions which had not been brought to the notice of thetrial Court. In support of his argument he cites the caseof Keerthi Bandara vs. the Attorney General 111 at 258 HisLordship Justice Jayasuriya observed thus:
“We lay it down that it is for the Judge to peruse theInformation Book in the exercise of his overall control of thesaid book and to use it to aid the Court at the inquiry or trial.When defence Counsel spot lights a vital omission, the trialJudge ought to personally peruse the statement recorded inthe Information Book, interpret the contents of the statementin his mind and determine whether there is a vital omissionor not and thereafter inform the members of the jury whetherthere is vital omission or not and his discretion on the lawin this respect is binding on the members of the jury. Thus
244
Sri Lanka Law Reports
[2010] 2 SRIL.R.
when the defence contends that there is a vital omission whichmilitates against the adoption of the credibility of the witness,it is the trial Judge who should peruse the Information Bookand decide on that issue. When matter is again raised beforethe Court of Appeal, the Court of Appeal Judges are equallyentitled to read the contents of the statements recorded inthe Information Book and determine whether there is a vitalomission or not and both Courts ought to exclude altogetherillegal and inadmissible opinion expressed orally by policeofficer (who are not experts but lay witnesses) in the witnessbox on this point”.
It is therefore seen from the said judgment that the trialCourt is given power to read the contents of the statementsrecorded in the Information Book only when a contradictionor omission is brought to the notice of Court. If an omissionor contradiction was marked at the trial then, the Court ofAppeal, according to the said judgment, will have the samepower to read the contents of the statements recorded in thePolice Information Book. This power has been given to thetrial Court, according to the said judgment, in order to testthe correctness of the contradiction or omission that wasbrought to the notice of court. Therefore if no contradictionor no omission was marked, according to the said judgment,Court of Appeal will not be entitled to peruse the InformationBook.
Learned President’s Counsel in the course of hissubmission also brought to the notice of court the judgmentof Muniratne and others vs. The State|2). He also brought tothe notice of Court page 395 and contended that the Court ofAppeal has the right to examine the police information book.
CA
Dharmasiri vs. Republic of Sri Lanka
(Sisira De Abrew, J.)
245
When we consider the argument of the learned President’sCounsel, it is also relevant to cite the judgment in the caseof Punchimahaththaya vs. The State^3}, His Lordship JusticeFernando (Samarawickrama, J. and Siva Supramaniam J.agreeing but Sirimane, J. dissenting) held thus:
“That the Court of Criminal Appeal (or the SupremeCourt in appeal) has no authority to peruse statementof witnesses recorded by the police in the course of theirinvestigation (i.e. statement in the information book)other than those properly admitted in evidence by wayof contradiction or otherwise. Section 122 (3) CriminalProcedure Code which enables such statements to besent for to aid a Court is applicable only to Court ofInquiiy or trial.”
This judgment was not brought to the notice of theirLordships who decided the above two cases. We considerPunchimahaththaya’s case (Supra) to be binding on us.
Considering these judicial decisions, I hold that the Courtof Appeal has power to peruse the information book only whencontradiction or omission was brought to the trial Court,and this power too should be exercised in order to check thecorrectness of the omission or contradiction marked at thetriad and not to come to a conclusion with regatrd to hiscredibility upon the contents of his statement made to thepolice.
Learned President’s Counsel invites this court tocompare the evidence of witness Madurainga with his state-ment made to the police and decide his credibility. In short heinvites this Court to come to am adverse finding against thewitness by adopting the said procedure. Leaimed President’s
246
Sri Lanka Law Reports
12010]2 SRIL.R.
counsel contends that there are omissions between hisevidence and his statement made to the police, but he tooadmits that these omissions were not brought to the notice ofthe trial court. In my view it is unfair for this Court to adoptthe above procedure and come to an adverse finding againstthe credibility of the witness since the witness had not beengiven an opportunity to explain the purported omissions.
Credibility of a witness is mainly a matter for the trialJudge. Court of appeal will not lightly disturb the findingsof trial Judge with regard to the credibility of a witnessunless such findings are manifestly wrong. This is becausethe trial Judge has the advantage of seeing the demeanourand deportment of the witness. This view is strengthened bythe following judicial decisions.
In Fraad vs. Brown & Company Limited,4> Privy Counselstated thus:
“It is rare that a decision of a Judge so express, soexplicit, upon a point of fact purely, is over-ruledby a Court of Appeal, because the Courts of Appealrecognize the priceless advantage which a judge of firstinstance has in matters of that kind, as contrastedwith any Judge of a Court of Appeal, who can onlylearn from paper or from narrative of those whowere present. It is very rare that, in questions of veracityso direct and so specific as these, a Court of Appeal willover rule a Judge of first instance.”
In Alwis vs. Piyasena Femandd5). His Lordship JusticeG.P.S. de Silva C.J. stated thus:
“It is well established that findings of primary facts by atrial Judge who hears and sees witnesses are not to belightly disturbed on appeal.”
CA
Dharmasiri vs. Republic of Sri Lanka
(Sisira De Abrew, J.)
247
Considering all these matters I hold that the Court ofAppeal should not decide the credibility of a witness on thebasis of omission or contradictions not marked at the trial.Thus, the invitation of the learned President’s Counsel toperuse the Police Information Book to test the credibility ofthe witness Maduranga is untenable. For the above reasons,I reject the contention of the learned President’s Counsel.
Learned President’s Counsel contends that the trial Judgeshould have rejected Maduranga’s evidence on the groundof delay. Maduranga made a statement to the police threeweeks after the incident. He therefore contends Maduranga isnot a reliable witness. Should the evidence of the witness berejected on the ground of delay?
It this connection I would like to consider the judgmentin the case Sumanasena vs. Attorney General6*, wherein HisLordship Justice Jayasuriya stated thus:
“just because the witness is a belated witness Courtought not to reject his testimony on that score alone,Court must inquire into the reason for the delay and if thereason for the delay is plausible and justifiable the courtcould act on the belated witness.”
On a consideration of the principles laid down in theabove judicial decision, I hold that the evidence of the witnessshould not be rejected on the ground of delay itself if thedelay has been reasonably explained.
I must consider in the present case whether the delayhas been reasonably explained. Kusumawathie, at page 51 ofthe brief, says that after both accused shot the deceased, the1st accused aimed the gun at Kusumawathie and threatenedto kill her if she would divulge the incident to the police.
248
Sri Lanka Law Reports
[2010] 2 SR1LR.
At page 58 of the brief Kusumawathie says after the incidentMaduranga kept his ears closed until 8.00 a.m. on thefollowing day. He was apparently traumatized for witnessingthe tragic death of his mother. His father was killed in 1989.Maduranga was at that time a nine year old boy. Consideringall these matters, I hold the delay in making a statement tothe police by Maduranga has been well explained. I thereforehold that the.Maduranga’s evidence cannot be rejected on theground of delay. For the above reasons I reject the argumentof the learned President's Counsel. I have gone through theevidence of the Maduranga and I see no reasons to rejectMaduranga’s evidence. In my view, the conviction of the 1staccused-appellant can be affirmed only on the evidence ofMaduranga.
Learned President’s Counsel contends that Kusumawatieis an unreliable witness. He contends that the identificationparade, in this case, was held 410 days after the incident.
The 1st accused-appellant according to Kusumawathiewas living in her neighbourhood and as such she knewthe accused-appellant prior to the incident. Therefore, inmy view, there was no necessity to hold an identificationparade in this case. Learned President’s Counsel contends thatwitness Kusumawathie failed to mention the 1st accused-appellant’s name in the statement. She also failed to mentionthat second shot being fired at the deceased. In thesecircumstances he contends Kusumawathie to be an unreli-able witness. I shall now consider why she failed to mentionthe 1st accused-appellant’s name in the statement. As Ipointed out earlier, at page 51 of the brief, Kusumawathiesays that 1st accused aimed his gun and told her not todivulge the incident to the police. At page 55 of the brief, again
CA
Dharmasiri vs. Republic of Sri Lanka
(Sisim De Abrew, J.)
249
Kusumawathie says that the 1st accused-appellant aimed thegun at her and threatened to kill her if she would divulge theincident to the police. The deceased’s husband had earlierbeen killed on 2nd of July 1989. Vide page 42 of the brief.After she made a statement to the police she left the village.Vide page 81 of the brief. Considering all these matters, itappears that Kusumawathie entertained fear of death instilledby the l8t accused-appellant. Considering all these matters,failure to mention the 1st accused’s name in her statementis, in my view, justified. Learned President’s Counsel con-tends that Kusumawathie did not tell the names of the assail-ants to Rahjanie who went to the police station in that night.He therefore contends that Kusumawathie had not seen theincident. At page 76 Kusumawathie said Ranjani wasa school going child at that time. At page 53 of thebrief, she says that the person who went to the policestation with Ranjani was killed prior to the commencementof the trial. Thus, failure on the part of Kusumawathie tomention assailant’s name to Ranjani who was a school goingchild at that time is understandable. She failed to mentionthe second shot being fired. This failure will not rander herevidence unreliable in view of the fact that her evidence wascorroborated by Maduranga.
Learned President’s Counsel drawing our attention topage 148 of the brief (the doctor’s evidence) contends thatonly one shot was fired. But when we consider the evidence inpage 141 and 149, it is very clear that the doctor categoricallystated that two shots had been fired at the deceased. WhenI consider the evidence of the doctor and the post mortemreport it is clear that two shots had been fired. I thereforereject the said contention of the learned President’s Counsel.Learned President’s Counsel also contends that learned
250
Sri Lanka Law Reports
[2010] 2 SRI L.R.
Trial Judge, at page 225 of the brief, came to the conclusionthat the accused-appellant was absconding in this case. Thisappears to be a mistake. The incident in this case took placeon 31st March 1993. The 1st accused-appellant surrenderedto the police on 1st of August 1994. Vide page 154 of the brief.Conviction of the 1st accused-appellant was not based on thispoint. It was based on the evidence led at the trial. Consideringall these matters the mistake made by the learned trial Judgehas not caused any prejudice to the l8t accused-appellant.Learned President’s Counsel also brought to the notice ofCourt the observation made by the learned tried Judge atpage 215 of the judgment. Learned trial Judge came to theconclusion that Nuegegawa Lokumeihaththaya (^©cicoaa©eostacsD) is the 1st accused in this case. This appears to be amistake Nugegawa Lokumeihaththaya (g®cstoo© ®eaz$ ©eostexaa)is the 2nd accused in this case. This mistake is appeirent fromthe observation again made by the leeimed tried Judge at theseime page. Learned tried at page 215 (last two lines) observedthat Nugegawa Lokumahaththaya (k)®«5c0d© ©rastexaa) isthe 2nd accused in this case. 1 therefore hold that this mistakehas not caused any prejudice to the Is* accused-appelleint.Considering edl these matters I eun unable to agree with thesubmissions made by the learned President’s Counsel and Iproceed to reject the said submissions.
For the reasons stated above, I find that the trial Court,after due consideration of the evidence led at the trial, hasrightly found the 1st accused-appellant guilty of the charge ofmurder and hence I dismiss the appeal as devoid of merits.
ERIC BASNAYAKE, J. -1 agree.
Appeal dismissed.