043-SLLR-SLLR-2005-V-2-KARUNARATNE-vs-ATTORNEY-GENERAL.pdf

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from the scene of crime towards Elpitiya wearing a red colour underwearat page 132 of the brief the witness has stated as follows :-

The witness Jayasuriya had stated he saw the accused – appellantrunning towards Elpitiya wearing only a red colour underwear, abusing infoul language. The accused-appellant in his dock statement had admitedthat he went to the deceased house on the day in question and both ofthem consumed a bottle of liquor, thereafter he left the house of thedeceased with the deceased, and went home in a different direction.
The wife of the accused – appellant Suneetha (called by the defence) ingiving evidence had stated, that on the day in question the accused-appellant left home around 2 p.m. dressed in a white shirt and a sarongand came back home around 4.30 p.m. When they were at home around7p.m. they heard that the deceased had been killed; but did not go out tosee the deceased. She knew that there existed an animosity between theaccused-appellant and the deceased, prior to this incident the accused-appellant had neither visited the house of the deceased, nor had consumedliquor with the deceased.

(at page 134)
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Karunaratne vs Attorney – Genera/ (Ba/apatabendi J.)
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At the hearing of the appeal the following grounds were urged by thecounsel for the accused – appellant.
Whether one person could have possibly caused all the injuries(24 injuries) single handed.
Evidence of the witnesses Josalin and Somapala as to the placewhere they made the statements to the police, contradict thepolice officer’s evidence who recorded their statements, andalso belatedess of their statements to the Police.
Arrest of another suspect named Gunaratne by the Police andremanded in connection with the case.
There was no record made, that the Judgement was pronounced
on 16.11.2000, by the trial judge, thus violating the provisions ofthe sections 279 and 283 of the criminal procedure Code.
Now I would like to deal with the principles governing the evidence ofcircumstantial nature. Circumstantial evidence may be used to establishthe facts in issue in the absence of direct evidence or to supplement andcorroborate direct evidence when doubt is cast on it or when the effect ofdirect evidence, standing by itself is too slender to enable proof of the factin issue (Vide, Law of evidence by Coomaraswamy)
The primary advantage of circumstantial evidence, is that the risk ofperjury is minimized since it is unlike direct evidenced, does not emanatefrom the testimony of a single witness. It is therefore more difficult tofabricate circumstantial evidence, than it is to resort to falsehood in thecourse of giving direct evidence.
Thus, there is no principle of the law of evidence which precludes aconviction in a criminal case based entirely on circumstantial evidence.
There are no uniform rules for the purposes of determining the probativevalue of circumstantial evidence. This depends on the facts of each case.
In the case of State of U.P vs Dr. Ravindra Prakash Mittal(1) it was
held that the essential ingredients to prove guilt of an accused person bycircumstantial evidence are >
1)The circumstances from which the conclusion was drawn shouldbe fully proved :
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The circumstances should be conclusive in nature;
All the facts so established should be consistent with thehypothesis of guilt and inconsistent with innocence;
The circumstance should; to a moral certainty, exclude thepossibility of guilt of any person other than the accused.
In the case of Podi Singho vs. King (2) it held that “in a case ofcircumstantial evidence it is the duty of the trial judge to tell the jury that#such evidence must be totally inconsistent with the innocence of theaccused and must only be consistent with his guilty. In the case of KingVs. Appuhamy(3) Keuneman J. held that in order to justify the inferenceof guilt purely on circumstantial evidecnce, the inculpatory facts must beincompatabie with the innocence ot the accused and incapable ofexplanation upon any other reasonable hypothesis than that of his guilflnthe case of State of Tamil Nadu vs Rajendran(4) justice Pittanaik observedthat “ In a case of circumstantial evidence when an incriminatingcircumstances is put to the accused and the said accused either offers noexplanation or offers an explanation which is found to be untrue, then thesame becomes an additional link in the chain of circumstance to make itcomplete”
It is to be noted that the following items of circumstantial evidenceavailable in this case.
The Accused – Appellant having a animosity with the deceased, visitedthe deceased on the day in question with a bottle of liquor and consumedit with the deceased. Thereafter Accused- Appellant left the house of thedeceased with the deceased on a bicycle.
The Witness Josalin Saw two people fallen on the road, one persondressed in a white shirt and a sarong in a seated position moving his handup and down in a stabbing motion, thereafter she saw the accused -appellant clad in a red colour under wear running towards Elpitiya-passingher house.
– The witness Somapala saw the deceased going with the accused -‘ Appellant on a bicycle when he was near the well of his house, and about15 to 30 minutes later accused-appellant running away clad in a red colourunderwear from the place of incident where the deceased was fallen dead.
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Karunaratne vs Attorney – General (Balapatabendi J.)
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The witness Jayasuriya has also seen the Accused-Appellant runningtowards Elpitiya clad in red colour underwear, abusing in foul language.The evidence of the wife of the accused-appellant as to the existedanimosity between them, and for the first time the accused-appellant visitingthe house of the deceased on the day in question and had consumedliquor with the deceased.
The medical evidence revealed that the deceased had twenty four (24)stab injuries on the body, and the injuries 8,9 and 10 were necessarilyfatal injuries (at page 43 of the Brief). •
The Doctor in his evidence had stated as follows :

The contention of the Deputy Solicitor General was that, the accused -appellant may have got the deceased drunk, and could have caused fewinjuries to incapacitate the deceased, thereafter when the deceased felldown caused the other injuries. Further, the evidence in the case revealedthat though there were twenty four (24) stab injures, there was no evidenceto connect an involvement of another person other than the accused -appellant to the incident. Also, there had been no doubt created that oneperson could have inflicted 24 stab injuries.
For the reasons mentioned above I disagree with the contention of thecounsel for the accused – appellant that one person could not have possiblycaused all the injuries single handed.
2 – CM6558
It had been revealed that the injuries on the deceased could be causedeither with one weapon or with two weapons, at page 57 doctor had statedas follows : –

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The evidence revealed that the witness Alpi Nona had made a statementto the Police on the 25th at 2 p.m. (the following day of the incident) andthe witness Somapala had made a statement to the Police on the 26th at10.30. a.m.
The witness Alpi Nona had stated in evidence that she did not comeforward to give evidence at the inquest held by the Acting Magistrate nearthe scene of crime as the Acting Magistrate was her lawyer who appearedfor her in Court when she was charged for possession of illicit liquor andfurther she had stated she did not make a prompt statement on the sameday of the incident, as no one came forward to give evidence when herhusband was killed, thus the explanation given by her, why she did notmake a statement to the police on the same day in the evening could beaccepted as a reasonable explantion.
The second ground of appeal urged by the counsel was that, thewitnesses Josalin and Somapala had stated that they made the statementsat the Police Station, where as Inspector Silva had stated statements ofthese two witnesses were recorded at their residences. Thus, the evidenceof these two witnesses is open to suspension and unworthy of being actedupon.
I do not agree with his cotention, as it was not an important factor todisbelieve the evidence of these two witnesses completely; with the lapseof time, (over 6 years) may affect the memory of the witnesses, as to theplace where they made the statements to the Police.
In the case of state of U.P Vs M. K. Anthony<5) it was held that “Whereevidence is generally reliable, much importance should not be attached tothe minor discrepancies and technical errors."
The third ground of appeal urged by the counsel for the accused-appellantwas that, an another suspect by the name Gunaratne had been arrestedand remanded in connection with this case, and the prosecuting counselor the learned High Court Judge not elicited an explanation from the policewitness as to why an additional suspect had been arrested, this factorhad created a doubt and mystery in the prosecution version.
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Karunaratne vs Attorney – General (Balapatabendi J.)
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It behove this Court in the interest of justice to ascerfain thecircumstances that led to the arrest and remand of an another suspectnamely one Gunaratne, only on perusal of “B” reports filed in theMagistrate’s Court. The “B’ reports dated 27.6.94 and 08.08.94 indicatethat, investigations had revealed, that the suspect Gunaratne being thebrother of the accused-appellant had met the accused-appellant on theway and taken him home after the incident, he was never charged at anystage of the proceedings in this case, as there was no evidence againsthim in connection with the incident. Hence the above contention of thecounsel for the accused-appellant should fail.'
In the case of King Vs Seeder Silva Howard CJ observed that “A”strong prima facie case was made against the appellant on evidence whichwas sufficient to exclude the reasonable possibility of someone else havingcommitted the crime, without an explanation from the appellant the jurywas justified in coming to the conclusion that he was guilty”
Thus, in my opinion, the circumstantial evidence available against thisaccused – appellant were so strong and incriminating; incompatible andinconsistent with the innocence of the accused-appellant and consistentwith his guilt, the only conclusion that could be arrived at on such evidenceis that the accused-appellant is guilty of the offence charged.
The fourth ground urged by the counsel was that, there was no recordmade, that the judgment was pronounced on 16.11.2000, by the trial judge,thus violating the statutory provisions of the sections 279,283 of the CriminalProcedure Code.
It is apparent from the proceedings on 16.11.2000 after the conclusionof the address by both counsel the allocutus had been recorded, thereafterthe verdict and the sentence was passed on the accused-appellant. Thelearned High Court Judge on the same day (16.11.2000) has recorded asfollows :-

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The contention of the Deputy Solicitor General was that, the abovefactors indicate that the learned High court judge on the 16.11.2000 mayhave dictated the judgment in Open Court to the stenographer, and thestenographer had typed it later, eventhough the date of the judgement
appears as 2000.11 the judgment had been signed by the Leaned
High Court Judge.
In support of his contention he has cited the decision in the case ofIqbal Ismail Sadawala vs Registrar High Court Bombay(6) It has beenheld that failure of presiding Judge to date and sign the judgement at thetime of pronouncing it is only procedural irregularity curable under section436 of the Criminal Procedure Code.
Hence, the Deputy Solicitor General submitted that, in the instant casefailure to date the Judgement is only a procedural irregularity curable undersection 436 of the Criminal Procedure Code.
I agree with the contention of the Deputy Solicitor General, that it wasan irregularity curable under section 436 of the criminal Procedure Code,which had not occasioned a failure of justice.
At the outset the counsel for the accused-appellant conceded the factthat who ever who killed deceased has rendered himself to be found guiltyof the offense of murder and nothing less, as the deceased had 24 stabinjuries caused by a knife of which 8th, 9th and 10th injuries were necessarilyfatal.
For the reasons aforesaid, the grounds of appeal urged by the counselfor the accused-appellant are of no merit. I am of the view that the leanedtrial judge has rightly found the accused-appellant guilty of the offencecharged. Appeal is dismissed.
Further the journel entry on 16.11.2000 written by the learned High

Court Judge himself states as follows
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Sisira de Abrew, J. I agree,
Appeal dismissed.