023-SLLR-SLLR-2002-V-1-JAYATUNGA-v.-THE-ATTORNEY-GENERAL-AND-ANOTHER.pdf
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Jayatunga v. The Attorney-General and Another
197
JAYATUNGA
v.THE ATTORNEY-GENERAL AND ANOTHER
SUPREME COURTFERNANDO, J.
ISMAIL, J. ANDYAPA, J.
SC APPEAL NO. 42/2001HC PANADURA NO. 4/99MC PANADURA NO. 2074818 JANUARY, 2002
Criminal Law – Three accused jointly charged for offences under sections 316and 317 of the Penal Code – Effect of acquittal of the 2nd accused on theconviction of the 1st accused apparently on the same evidence – Effect ofMagistrate's failure to consider the alibi offered by the 1st accused.
The 1 st accused (the appellant) and the 2nd and 3rd accused were charged jointlybefore the Magistrate on the basis of common intention with offences undersections 316 and 317 of the Penal Code. The virtual complainant was oneAbeydheera. The other witness to the incident was his aunt Nancy Nona whowith the help of Abeydheera was attempting to pluck a jak fruit. The prosecutioncase was that at that stage, 3rd accused arrived and told them not to pluck jakfruits as they did not own the jak tree. At that stage the 2nd accused arrivedwith a club and struck a blow on the arm of Abeydheera. Next the appellant camewith a Kathy and struck Abeydheera causing a grievous injury. The medicalevidence described the cut injury as grievous.
The defence of the appellant and the 2nd accused who testified at the trial wasan alibi. The 3rd accused said that when she objected to the plucking of jak,Abeydheera went to his house and returned with a sword. In self defence sheheld on to the sword when both of them fell and she sustained injuries. She couldnot explain the injury sustained by Abeydheera.
The Magistrate convicted the appellant on both counts. The 2nd accused wasacquitted on the 1st count (section 317, causing grievous hurt with a dangerousweapon) but he was convicted on the 2nd count (section 316 causing grievoushurt). The 3rd accused was acquitted on both counts. On appeal, the High Courtacquitted the appellant on the 2nd count but affirmed his conviction on the1st count; and acquitted the 2nd accused on the 2nd count. On appeal to the
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Held:
The acquittal of the 2nd accused on count 2 did not vitiate the convictionof the appellant on count 1 on the evidence of the same witnesses asit appeared that the acquittal of the 2nd accused on the 2nd count wasnot based on the ground of credibility of witnesses but on the absenceof injury caused by the alleged blow with a club. There had been somedoubt in the mind of the High Court Judge whether in those circumstancesthe charge under section 316 was established. However, in the absenceof evidence of a common intention, the High Court Judge could have foundthe 2nd accused guilty of the lesser offence under section 314.
The failure of the High Court Judge to give due consideration to thedefence evidence is fatal to the conviction fo the appellant.
Cases referred to :
The King v. Tholis Silva – 30 NLR 267.
Chandrasena and Others v. Munaweera – (1998) 3 Sri LR 94 (CA).
APPEAL from the judgment of the High Court.
Ranjith Abeysuriya, PC with Sharmanie Gunaratne for appellant.
M. R. M. Hamza, State Counsel for Attorney-General.
Cur. adv. vult.
February 25, 2002
HECTOR YAPA, J.
The accused-appellant was charged along with two other accused in 1the Magistrate's Court of Panadura under two counts. The firstcount alleged that on 21. 02. 1993 these accused voluntarily causedgrievous hurt to Jayantha Abeydheera with a katty and therebycommitted an offence punishable under section 317 read with section32 of the Penal Code. In the 2nd count it was alleged that in thecourse of the same transaction they voluntarily caused hurt to thesaid Jayantha Abeydheera with a club and thereby committed an
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offence punishable under section 316 read with section 32 ofthe Penal Code. After trial the learned Magistrate convicted the 10accused-appellant on both counts. The 2nd accused was acquittedon the 1st count and was convicted on the 2nd count. The 3rd accusedwas acquitted on both counts.
Thereafter, the following sentences were imposed on the accused-appellant. On the 1st count he was ordered to pay a fine ofRs. 1,000, with a default term of three months' imprisonment. Further,he was sentenced to a term of six months' rigorous imprisonmentwhich was suspended for a period of three years. On the 2nd counthe was ordered to pay a fine of Rs. 1,000 with a default term ofthree months' imprisonment. The 2nd accused who was convicted on 20the 2nd count was ordered to pay a fine of Rs. 1,000 with a defaultterm of 3 months' imprisonment.
The accused-appellant and the 2nd accused appealed to theHigh Court from the said convictions and sentences. The learned HighCourt Judge after hearing the appeal found the accused-appellantguilty only on the 1st count and thereafter ordered him to pay a fineof Rs. 2,500 and sentenced him to a term of 6 months' rigorousimprisonment which was suspended for a period of 5 years.
The 2nd accused was acquitted on the 2nd count.
The accused-appellant lodged an appeal in the High Court against 3°the said conviction and sentence and sought leave to appeal to theSupreme Court. The learned High Court Judge granted leave on thefollowing questions of law :
Whether the accused-appellant should have been given thebenefit of a reasonable doubt that arose in the prosecution casehaving regard to the strong evidence given by the accused.
This being a criminal case, whether the defence evidence shouldhave been subjected to evaluation as required by law.
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The case for the prosecution rested on the evidence of two eye-witnesses, namely the injured Jayantha Abeydheera and his aunt 40Nancy Nona. According to their evidence on the day in question,while Nancy Nona was plucking jak fruits, the plucking stick (kekka)got stuck and therefore she had sought the help of her nephewJayantha Abeydheera to recover the plucking stick. When her nephewwas attempting to free the entangled stick, the 3rd accused had comethere and told them not to pluck jak fruits as they (witnesses) didnot own the tree. At that point of time, the 2nd accused had comearmed with a club and struck a blow which alighted on the arm ofAbeydheera. Immediately thereafter, the accused-appellant hadcome armed with a katty and struck a blow on Abeydheera causing sogrievous injury to his forearm. According to the medical report markedP1, there was a cut injury on his left forearm which was describedas a grievous injury.
When the defence was called the accused-appellant and the othertwo accused gave evidence. The accused-appellant and the 2ndaccused in their evidence took up the position that they were not atthe scene when this incident took place and that they came to knowabout it later. According to the evidence of the 3rd accused, whenAbeydheera (injured) and Nancy Nona came to pluck jak fruits froma tree which was co-owned, she (3rd accused) had told them not 60to pluck any jak fruits. At that stage Abeydheera (injured) had runto his house and had come armed with a sword. Fearing that he wouldattack her, she had held on to the sword, when both of them felland as a result she sustained injuries. However, she was unable tosay whether Abeydheera had suffered any injury.
At the hearing of this appeal, learned President's Counsel for theaccused-appellant made the submission that the acquittal of the 2ndaccused by the learned High Court Judge necessarily cast a doubton the credibility of the two prosecution witnesses who stated thatthe 2nd accused had dealt a blow on the injured Abeydheera with ?oa club and the blow alighted on his arm. Further, it was these two
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witnesses who deposed to the fact that the accused-appellant inflictedthe cut injury on the arm of the injured Abeydheera. Therefore, counselcontended that when the High Court Judge declined to act on theevidence of these two prosecution witnesses with regard to the allegedclub blow by the 2nd accused, their evidence lost its cogency andin the result such evidence should not have been used to base theconviction of the accused-appellant. However, a close examination ofthe reasoning of the High Court Judge would show that his decisionto acquit the 2nd accused was not on the basis that he disbelieved sothat part of the evidence given by the two witnesses, but for two otherreasons. Firstly, in view of the evidence of the injured, who statedthat he received no injury as a result of the club blow given by the2nd accused. Secondly, there was no medical report before the Courtto show that any injury had been caused as a result of the said clubblow. In other words, there has been some doubt in the mind of theHigh Court Judge on the question whether there was any injury causedas a result of the club blow to establish the second count undersection 316 of the Penal Code. It may be that the club blow wasa light blow or that the said club blow had not properly alighted on 90the body of the injured so as to cause any injury. Hence, the learnedHigh Court Judge has concluded that the material was not sufficientto establish the 2nd charge against the accused-appellant and the2nd accused. However, in the absence of any evidence to establisha common intention in this case, the learned High Court Judge couldhave found the 2nd accused guilty of the lesser offence of causinghurt under section 314 of the Penal Code, since it was the evidenceof the injured Abeydheera that the club blow of the 2nd accusedcaused him bodily pain even though there was no injury as such.Under these circumstances, it cannot be said that the High Court 100Judge had disbelieved the evidence of the injured Abeydheera andhis aunt Nancy Nona, when they said that the 2nd accused attackedthe injured with a club. The learned High Court Judge has thoughtit best to give the 2nd accused, the benefit of the evidence givenby the injured who said that even though the club blow alighted onhis hand he was not injured and the fact that there was no medical
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evidence to support a club injury under section 316 of the Penal Code.However, he has failed to address his mind in regard to the possiblelesser offence that has been disclosed. For the above reasons, I amunable to agree with the submission of learned President's Counsel nothat the learned High Court Judge had disbelieved the two prosecutionwitnesses on this point.
The other submission that was made by learned President's Counselwas the failure of the learned High Court Judge to consider the defenceevidence, specially the evidence given by the accused-appellant,before he decided to sustain the conviction of the accused-appellant.Counsel contended that there was complete failure by the High CourtJudge to consider the evidence given by the defence. In support ofthis submission, learned Counsel cited the case of The King v. TholisSilva,m where it has been held that it is the duty of a Court to scrutinize 120the defence put forward in a case and if it is rejected, to give reasons
therefor. Counsel also referred to the case of Chandrasena and Others
(2)
v. Munaweera, where the need for a Judge to analyse and evaluatethe evidence of both the prosecution and the defence with reasonshas been highlighted and commented upon.
In this case, it is to be observed that the learned High Court Judgemakes no reference at all to the defence evidence in his judgment.
The failure to consider the defence evidence was a serious injusticedone to the accused-appellant who had taken up the position thathe was not at the scene, when the attack on the injured took place. 130It is to be remembered that when evidence is presented by anaccused person in his defence, it is the duty of the Judge to considerit however weak that defence may be, before deciding whether theprosecution has succeeded in proving the case against the accused.
On the other hand, if the High Court Judge decided to reject theevidence of the defence (accused-appellant) he should say so, givingreasons. Therefore, as submitted by learned President's Counsel, thefailure of the learned High Court Judge to give due consideration tothe defence evidence is fatal to the conviction of the accused-appellant in this case.140
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For the aforesaid reasons, I answer the second question of lawraised in this appeal in the affirmative and in view of my final order,
I refrain from answering the first question of law as it would now bea matter for the learned Magistrate to decide. Accordingly, I set asidethe conviction and the sentence imposed on the accused-appellant.However, in the interests of justice, I direct that a – de novo – freshtrial be held against the accused-appellant before the presentMagistrate of Panadura on the count he was found guilty. I haveseriously considered the question, whether it would be right to placethe accused-appellant in peril for the second time after a lapse of150several years, but the circumstances of this case do not warrant meto take any other view. Therefore, the appeal is allowed but a retrialis ordered.
FERNANDO, J. – I agree.
ISMAIL, J. – I agree.
Appeal allowed.
Retrial of the appellant on count 1, by the Magistrate directed.