COURT OF APPEAL.HECTOR YAPA, J.KULATILAKE J.
C.A. NO. 6/99.
H. C. KURUNEGALA 102/9610th NOVEMBER, 1999.
Murder – Penal Code S. 296 and S. 297 – Common intention S. 32 and S.314 – Prevention of Crimes Ordinance S. 5 and 6 – Dock statement – Dyingdeposition – Evidence Ordinance S. 32(1) – Post mortem Report – Notproperly admitted – Motive
The accused – appellant was indicted on two counts, one under S. 296read with S. 32 and the other under S. 314. He was found guilty ofculpable homicide not amounting to murder in respect of the 1st countand guilty on the 2nd count. Since the accused – appellant had previousconvictions, in terms of S.6 of the Prevention of Crimes Ordinance afurther sentence of 2 years R. I was also imposed, to operate after theaccused-appellant has served the sentence passed on the 1st and 2ndCounts.
It was contended that –
The High court Judge has misdirected himself in not admitting thedying deposition in the manner required by law.
Ihat the High Court had not approached the case, considering thequestion whether the accused-appellant with the other two personsentertained a common intention to cause injury or whether there wasindividual liability on their part.
(Ill) That the post mortem Report (PMR) was not properly admitted.Held:
(1) It is clear that Court has not considered the words spoken to bythe deceased as a dying deposition. However that material was legallypermissible to be led at the trial in terms of S. 32(1) of the EvidenceOrdinance.
Jayasooriya v. State
(.Hedor Yapa, J.)
The failure on the part of court to treat the words spoken to by thedeceased as a dying deposition subject to the infirmities, has not causedprejudice to the accused-appellant, for the reason that there is also otherevidence from which an inference of guilt could be drawn by court.
It appears that court has not considered the individual liability ofthe accused-appellant on the basis that the other two persons mayhave participated in the attack. However one cannot disregard thewords spoken to by the decased and the evidence given by Sisira Kumara,which clearly show that the accused-appellant had been the assailant.Basically, the dock statement, other than denying the allegation againsthim, did not provide any material to suggest that any other personsattacked the deceased.
It appears that the Counsel who appeared for the accused – appellantin the High Court has not raised any objection to the manner in whichthe medical evidence and the PMR were admitted at the trial the Doctorwho performed the post mortem examination and the Doctor whoprepared the PMR were not called.
Appeal from the Judgement of the High Court of Kurunegala.
Dr. Ranjith Fernando with Ms Anoja Jayaratne and Ms SandamaliMunasinghe for accused – appellant.
Ms Priyadharshani Dias assigned.
Ms Prasanthi Mahindaratne S.C. for Attorney General.
_Cur. adv. vult
November 10, 1999.
HECTOR YAPA, J.The accused-appellant in this case was indicted under twocounts. In the first count he was charged with two othersunknown to the prosecution, for the commission of the murderof R. A. Sarathchandra on 17.01.1992, an offence punishableunder Section 296 read with Section 32 of the Penal Code. Inthe second count, the accused-appellant was chargedwith having caused hurt to R A Sisira Kumara, an offencepunishable under Section 314 of the Penal Code. After trialbefore the High Court Judge sitting without a jury, theaccused-appellant was found quilty of culpable homicide notamounting to murder in respect of the 1st count, (on the basisof knowledge) under Section 297 of the Penal Code. He wasalso found quilty on the second count. Thereafter learned HighCourt Judge sentenced the accused-appellant to a term of 10yeaifs rigorous imprisonment on the 1st count and one yearrigorous imprisonment on the second count and made order
Sri Lanka Law Reports
(20011 2 Sri L.R.
that the said sentences were to run concurrently. Since theaccused-appellant had previous convictions against him,learned High Court Judge acting in terms of Section 6 of thePrevention of Crimes Ordinance imposed on him a furthersentence of 2 years rigorous imprisonment and directedthat this sentence of two years should operate after theaccused-appellant has served the sentences passed on the 1stand 2nd counts. In addition the accused-appellant was orderedto be under police supervision for a period of 4 years.
Prosecution in this case led the evidence of Dr. Ratnayake,Sisira Kumara, Siiisena and Police Sergeant Karunaratne.Witness Sisira Kumara who was staying about 10 yards awayfrom the house of the deceased, gave evidence and stated thaton 17.01.1992 around midnight, he heard the cries of thedeceased and therefore he ran to the house of the deceased.Having gone there, he had observed a bottle lamp burning inthe house and the deceased fallen there in a prostrate positionand the accused-appellant standing one foot a wayfrom the deceased with a club in hand. Thereupon theaccused-appellant had attacked the witness Sisira Kumarawith a knife and further had given him two club blows and leftthe place. Thereafter Sisira Kumara had taken the deceased tohis house and had made arrangements to dispatch the de-ceased to hospital. Sisira Kumara further stated that when hequestioned the deceased, he had told the witness that he wasattacked by the accused-appellant who had come to rob hischain. The other witness Sirisena, father of Sisira Kumara,stated that on 17.01.1992 around midnight he heard the criesof the deceased and when he got up, he had observed threepeople running away on the road. After the arrest ofthe accused-appellant on 27.04.1992, there had beenan identification parade held on 04.05.1992, where theaccused-appellant had been identified by witness SisiraKumara. Dr. Ratnayake gave evidence on the post mortemreport prepared by J. M. O. Colombo from the notes made byDr. (Mrs) N. R. Mahajuedeen Asst. J. M. O. Colombo, at theexamination of the deceased body on21.01.1992. According to
Jayasoortya v. State
(Hector Yapa, J.)
the post mortem report marked P2, the deceased had sevenInjuries. The injury No. 4, a superficial laceration 1 1/2" x 1/2" on the top of the head which had caused damage to thd&deceased’s brain was fatal. Other injuries were three abra-sions, one contusion, one bruise and a sutured incised woundclose to injury No. 4. The cause of death had been due tocranio-cerebral injuries caused by blunt trauma. The prosecu-tion also produced a broken club which was in three piecesmarked as P1A, P1B and PIC respectively recovered from thescene of the incident. According to the police officer whoarrested the accused-appellant, he had been absconding afterthe commission of the offence.
After the close ®f fhe prosecution case, when the learnedHigh Court Judge cafi&d for a defence, the accused-appellantmade a dopk statement denying the allegation and stated thatafter he^was arrested by the police, he was assaulted andshowr^to the person who identified him at the identificationpar'xfle.
At the hearing of this appeal learned Senior Counsel fortB'^accused-appellant submitted that the learned High CourtJudge has misdirected himself in not admitting the dyingdeposition of the deceased, in the manner required by law. Assubmitted by Counsel, it would appear from the judgment ofthe High Court Judge, that he has not treated the evidencegiven by vfttness Sisira Kumara relating to the words spokento by the deceased as to the manner he came to be injured, asa dying deposition. Learned High Court Judge has merelyreferred to what has been stated by the deceased to SisiraKumara, namely* tnat he (deceased) was attacked by theaccused-appellant. It was contended by Counsel that the HighCourt Judge should have treated this material coming fromthe deceased as a dying deposition, eliciting from the witnessthe very words (verbatim) as spoken to by the deceased. Inaddition learned High Court Judge should have given his mindto the infirmity, that the deceased has not been subjected tocross-examination and further he should have considered itsafe to look for corroboration. As stated above, it is clear thatthe High Court Judge has not considered the words spoken toby the deceased as a dying deposition in this case. Howeverthis material was legally permissible to be led at the trial in
Sri Lanka Law Reports
terms of Section 32(1) of the Evidence Ordinance. Thereforethe failure on the part of the High Court Judge to treat theVords spoken to by the deceased as a dying deposition subjectto the infirmity referred to by Counsel has not in our view,caused prejudice to the accused-appellant, for the reason thatthere is also the evidence of Sisira Kumara from whichan inference of guilt on the part of the accused-appellantcould be drawn by the Court. Further if corroboration wasrequired regard to the words spoken to by the deceased, suchcorroboration was available from the evidence given by witnessSisira Kumara. It should also be noted that the learned trialJudge was satisfied with the testimonial trustworthiness ofthe witness Sisira Kumara.'
Another submission that was made by learned Counselfor the accused-appellant was that this case was ba^ed on theprinciple of common intention in that the accused-appellanthas been charged along with two other persons unknt,-^i tothe prosecution. Therefore, Counsel contented that the nialJudge has not approached the case on that basis, considersthe question whether the accused-appellant with other tCopersons entertained a common intention to cause injury tomedeceased or whether there was individual liability on theirpart. Counsel referred us to the evidence of Sirisena, whostated that soon after he heard the cries of the deceased, he gotup and found that his son had gone to the deceased’s houseand at that stage he saw three persons running away on theroad. Counsel pointed out that since there was a broken club(three pieces) at the scene and the fact that according towitness Sisira Kumara the accused-appellant was havinganother club in his hand, it may well be that the other twopersons also had taken part in the assault on the deceased. Inthe circumstances, Counsel contended that there was a dutycast on the High Court Judge to consider the individualliability on the part of the accused-appellant and the other twopersons. When one examines the judgment of the learned HighCourt Judge, it would appear that he has not considered theindividual liability of the accused-appellant on the basis thatthe other two persons may have participated in the attack onthe deceased. However on this matter one cannot disregard thewords spoken to by the deceased and the evidence given by
Jayasooriya v. State
(Hector Yapa, J.)
Sisira Kumara, which clearly show without doubt that theaccused-appellant had been the assailant In this case. Besides^the accused-appellant in his dock statement other than deny-ing the allegation against him, did not provide any material tosuggest that any other persons attacked the deceased. Furtheras submitted by learned State Counsel, since the presence ofthe accused-appellant at the scene of the crime had beenclearly established, even if the trial Judge considered thequestion of individual liability of the accused-appellant,still having regard to the available evidence in the case againsthim, it was not possible to reach a conclusion differentfrom what was reached by tha trial Judge, namely thatthe accused-appellant was guilty of culpable homicide notamounting to murder on the basis of knowledge. Besidesthe accused-appellantNias failed to explain away theincriminating circumstances proved against him by theprosecvidon.
Another point that was raised by learned Counsel for theKused-appellant was that the medical evidence and the postrt;<jtf:ern report in this case have not been properly admitted.Pemaps the reason being that the doctor who performed thepost mortem examination and the doctor who prepared thepost mortem report were not called as witnesses. However itwould appear from ihe proceedings in this case, that theCounsel uiho appeared for the accused-appellant before theHigh Court has not raised any objection with regard to themanner in which the medical evidence and the post mortemreport were admitted at the trial. If however such an objectionwas taken at the High Court trial, prosecuting Counsel mayhave taken action at least to call the J. M. O. Colombo, whoprepared the post mortem report. Besides it may be noted thatSection 414 of the Code of Criminal Procedure Act, No. 15 of1979, is wide enough to permit the procedure that was adoptedto admit the post mortem report in this case.
Finally, it was urged by learned Counsel for theaccused-appellant that, even assuming the finding that theaccused-appellant was guilty of culpable homicide notamounting to murder on the basis of knowledge is warranted,Counsel contended that the material in the case showed that
Sri Lanka Law Reports
12001] 2 Sri L.R.
the motive on the part of the accused-appellant in thisinstance had been to commit robbery. Further there wasevidence to show that the deceased himself was a person whohad previously faced a charge of murder and therefore therewas every likelihood that the deceased may have resisted thepresence of the accused-appellant and thereby making him(accused-appellant) to commit the said offence in order todefend himself. In these circumstances learned Counselsubmitted that the sentence of 10 years rigorous imprison-ment imposed on the accused-appellant in respect of countNo. 1, which is the maximum sentence provided by law, wasexcessive and moved the Ccur^ to consider a reduction in thesaid sentence.
We have carefully considered tii?fsubmission that wasmade by Counsel with regard to the sentence ofklO yearsrigorous imprisonment imposed on the accused-appellant bythe High Court Judge in respect of count 1. Having regp-rd tothe extenuating circumstances of this case, we are of the v^wcthat the ends of justice would be met in this case by reducu^the sentence of 10 years rigorous imprisonment imposed/? *the accused-appellant in respect of count 1, to a term of 8 yeSrsrigorous imprisonment. Further we affirm the sentenceimposed on the accused-appellant in respect of count 2, andmake order that the sentences imposed Qn count 1 and count2, which would run concurrently be operative and effectivefrom 23.03.1999, which was the date of the conviction.However we will not interfere with the sentence of 2 yearsrigorous imprisonment and the 4 years police supervision thathave been ordered by the High Court->Jj4dge in terms ofSections 5 & 6 of the Prevention of Crimes Ordinance. Thesentence of 2 years rigorous imprisonment and the four yearspolice supervision ordered in terms of the Prevention of CrimesOrdinance will be operative after the sentences imposed on the1st and 2nd counts in the indictment are served. Subject to theabove variation in the sentence in respect of count 1, wedismiss the appeal of the accused-appellant.
KULATILAKA, J.I agree.
Sentence VariedAppeal dismissed.