Keerthi Bandara v. Attorney General (Jayasnriya, J.)
Judges would be prevented from looking at the InformationBook even for the limited purpose of ascertaing whether thereis in fact an omission on a vital point in the case. No one wouldgrudge pleaders arrogating to themselves the powersconferred on the trial Judges as there are officers of Courtassisting the Court to arrive at the truth and a correctadjudication in the interests of justice. But, would anycontention which has the necessary effect of thwarting theexercise of the Judge’s rights in the interests of justice and. precluding him from perusing statements recorded in theInformation Book for the limited purpose of determining andascertaining whether there is an omission on a vital point, beever adopted and accepted?
If the trial Judge has an undoubted right to do so, certainlythe Judges in the Court of Appeal hearing an appeal would alsohave the undoubted right to peruse such statements for suchlimited purpose in the interest of justice and in determiningwhether there is an omission on a vital point or not. The Judgeswould in this exercise only be concerned with the issue of thecredibility of the witness and they would not in that exercisebe using the contents of the statement as substantive evidenceto arrive at an adjudication on the main issues in the case.That is the significant distinction between the processindulged in by the High Court Judge in Sheela Sinharage’scase and the issue that arises upon this appeal relatingexclusively to the province of credibility.
Learned Additional Solicitor General has submitted thathe is relying on the evidence given by witnesses – Somawathieand Sunethra – at the identification parade held on the 10th ofApril 1990 before the Additional District Judge/Magistrate ofHorana to corrobate their testimony at the trial that the firstaccused has previously visited their house on the 30lh of March1990 and thereby advance their consistency and credibility.He contended that the evidence led in the identification paradewhich was produced and marked at the trial as Yl. witnessesSomawathie in particular and Sunethra have clarified details
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with regard to the date of the previous visit by the first accusedand have given description in regard to the first accused who.visited their home on the 30th of March 1990 and on the 7th ofApril 1990. Evidence elicited at the identification parade :
When learned President’s Counsel initially contended thatlearned Additional Solicitor General was not entitled in lawto use the aforesaid evidence to advance the credit of thewitnesses in regard to their testimony before the High Court,the learned Additional Solicitor General has very relevantlydrawn the attention of this Court to a judgment of the SupremeCourt of India in the decision in Rainratnam vs the State ofRajasthan(8) at 426 Justice Wanchoo delivering the SupremeCourt judgment observed “The argument is that thecorroboration that is envisaged by Section 157 of the EvidenceOrdinance is that of the statement of the witness in Court, thathe had told certain things to the person corroborating thewitness’s statement, and if the witness did not say in Court thathe had told certain things to that person, that person cannotstate that the witness had told him certain things immediatelyafter the incident and thus corroborates him." We are of theopinion, that this contention is incorrect Having regard to the
Sunethra in her statement to the police (ASP Tudor Dias)made on 06. 04. 90.

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provisions of Section 157, it is clear that there are only twothings which are essential for this Section to apply. First thatthe witness should have given testimony with respect to somefact. The second is that he should have made the statementearlier with respect to the same fact at or about the time whenthe fact took place or before any authority legally competent toinvestigate the fact. If these two things are present the formerstatement can be proved to corroborate the testimony of thewitness in Court. The former statement may be in wtiting ormay be made orally to some person. That person would becompetent to depose to the former statement and corroboratethe testimony of the witness in Court. There is nothing inSection 157 which requires that before a corroboratingwitness deposes to the former statement, the witness to becorroborated must also say in his testimony in Court thathe had made the former statement to the witness who iscorroborating him. But. in our opinion it is not necessary inview of the words of Section 157 that in order to makecorroborative evidence admissible, the witness to becorroborated must also say in his evidence that he had madesuch and such a statement to the witness who is to corroboratehim. It is not necessary that the witness corroborated shouldalso say in his evidence in Court that he made some statementto the witness who is to corroborate him. We are therefore ofthe opinion that the decisions in Mt Misri vs Emperor191 andNazar Singh vs The State1'01, were cases wrongly decided.
During the subsequent stages in his argument learnedPresident’s Counsel was compelled to admit that the correctlegal position has been laid down by Justice Wanchoo inRamaratnam’s case.
The evidence of Somawathie in particular and of Sunethrain their evidence at the identification parade have sufficientlydescribed, that the reference to the Sinhala expressions“qidadeo g®3sz>f and “eS^zsT were references to the visit made onthe 30th of March and they have sufficiently described in detailparticularising regard to the accused-appellant as the person
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who came both on the 30th of March and on the 7,hof April 1990. When all these matters are taken intoconsideration for the limited purpose of determining whetherthere is an omission on a vital issue, it is crystal clear that thereis no such omission in the statements made by these witnessesto the police and in the evidence given by these two witnessesat the identification parade. We also hold the testimony incourt of Somawathie and Sunethra is corroborated by theevidence given by them at the identification parade. In thesecircumstances, we are compelled to hold that there is no meritin the contentions urged on this score by learned President'sCounsel.
It must be observed that the evidence given by Sunethraat pages 191 to 192 of the record and the evidence given byRanjini at pages 95, 195 and 150 of the record in regard to theprocess of the search indulged in by the police party on thatday, by proceeding to all the rooms and looking for RobiesSingho, has not been challenged, impugned or assailed in anymanner by learned counsel who appeared for the accused atthe trial.
Dr. Jean Marita Perera, Assistant Judicial Medical Officerwho had examined the prosecutrix on 08.04. 90 at 2 p.m., hasstated convincingly and in clear terms that there had been arecent rupture of her hymen and that there was an injury inthe vaginal passage and having regard to the redness and theswelling in the surrounding areas she was able to say that itwas a recent rupture and that prior to that rupture Ranjini hadbeen a virgin. These injuries in the hymen and the vaginalpassage, according to the medical expert, could have beencaused by the insertion of some object into the vaginal passageand hence could have been caused by sexual intercourse andpenetration. The medical expert has described that there wereinjuries on Ranjini’s buttocks which, testimony substantiatesthe evidence of Ranjini when she stated that the subsequentacts of rape committed on her by other members of the policeparty were, after placing her on a concrete slab. The aforesaid
Keerthi Bandara v. Attorney General (Jayasuriya, J.)
evidence of the medical expert has not been impugned orassailed at all at the trial. The position of the defence beingthough Ranjini may have been raped, that the charges againstthe accused were a frame-up and a fabrication and that theaccused has no hand whatsoever in the acts of rape which werecommitted on Ranjini on the 7,h of April, 1990.
Learned President’s Counsel has complained in the courseof his argument before this Court that the learned trial Judgehas utilized the evidence given by witnesses Somawathie andSunethra at the identification parade held on the 10th of April1990 as substantive evidence and referred this Court to pages596 to 599. 600. 609 and 612 where and 612 where extractsof the judgment appear. He relied on the judgment in Queen vsJulisin particular, he relied on the judgment pronouncedby Chief Justice Basnayake, wherein the learned Judge hasstated thus:
“Both Judge and Counsel appear to have lost sight of thefact that the identification of the accused at a parade heldbefore the trial is not substantive evidence at the trial. Thefact that the witness has been able to identify the accusedat an identification parade is only a circumstancecorroborative of the identification at the trial. The jurymay act only on the evidence given before them. There isno section of the Evidence Ordinance which declaresproceedings at an identification parade to be evidence ofthe fact of identity. The principal evidence of identificationis the evidence of a witness given in court as to how andunder what circumstances he came to pick out aparticular accused person . . .".
It appears that Chief Justice Basnayake was dealing withthe adduction of proceedings at an identification parade beingadduced as substantive evidence at the trial. Certainly such acourse is not warranted and the proceedings and evidence atthe identification parade could only be used to corroborate thewitness who gives evidence at the trial under Section 157 of theEvidence Ordinance.
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The question arises whether a witness at the trial couldstate before the trial Court that he identified the accused atthe parade. Such testimony, bereft of the contents of theproceedings and evidence led at the identification parade,would it be substantive evidence?
Senior Puisne Justice Weerasooriya in Queen vsJulis(supra)at 525 discussing this issue observed that:
“Evidence relating to the identification of an accused at anidentification parade by a witness who is subsequentlycalled at the trial and gives evidence implicating thataccused would be relevant under Section 9 of the EvidenceOrdinance as a fact establishing the identity of the personwhose identity is relevant.”
In so far as Justice Weerasooriya referred to the relevancyof such evidence under Section 9 of the Evidence Ordinance,it is implicit in that pronouncement that His Lordship was ofthe view that evidence relating to the identification of anaccused at a parade by a witness is substantive evidence,establishing the identity of the person concerned, as Section6-55 of the Evidence Ordinance inclusive of Section 9 relate tothe adduction of substantive evidence before a Court of Lawwhilst Section 157 of the Evidence Ordinance relates to theadduction of evidence to corroborate the witness and thereby,show consistency on the part of the witness and therebyadvancing his credibility. This pronouncement by JusticeWeerasooriya is a pointer to the fact, that evidence given by thewitness at the trial relating to his identification of the accusedat a parade is substantive evidence establishing identity interms of section 9 of the Evidence Ordinance. But certainly theproceedings of the identification parade, including theevidence given at the parade by the witnesses would only beadmissible to establish consistency on the part of the witnessand thereby advance his credibility in terms of Section 157 ofthe Evidence Ordinance.
Though Chief Justice Basnayake has relied on thejudgment pronounced by Lord Moulton in Rex vs Christie1121 at
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159 (H.L.). I have discovered that on a reading of thatjudgment, it does not support the proposition that theevidence, of a witness at the trial Court is not substantiveevidence but is only a circumstance corroborative of theidentification at the trial.
One must in this context draw a distinction between theevidence given by a witness at the trial that he identified theaccused at an identification parade and-the adduction inevidence of the proceedings of the identification parade,including the evidence given by the witness at the parade.
However, there is a cursus curiae emanating from theSupreme Court of India laying down the principle thatthe results of an identification parade do not constitutesubstantive evidence. Matru vs State of Uttar Pradesh!131-,Shinde vs State of Maharastra1141; State of Andhra Pradesh vsK.V. Reddy1151; C.P. Fernandes vs Union Territory Goal,6); Satya■Narain vs State1171.
Learned President’s Counsel appearing for the accusedappellant contended that the learned trial judge had overemphasized and stressed unduly the identification of theaccused at the identification parade held on the 10th of April1990. One must investigate the causes and factors whichinduced the learned trial Judge to lay much emphasis inregard to the identification at the said parade. Witness TudorDias, Assistant Superintendent of Police, on reading thestatement of Sunethra expressed his opinion as to theomission in the said statement. The learned trial Judge hadbefore him that particular answer. Nevertheless, he hadhimself perused that statement which was recorded in theInformation Book. All these matters related to the issue of thetestimonial trustworthiness and credibility of witness Sunethra.These matters did not pertain to the ingredients of the offenceor to the fact in issue and the relevant facts on which thefindings had to be reached by the trial Judge. Thus, dealingwith the question of credibility, he has discussed at length
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what took place at the identification parade and the evidencegiven by witnesses at the parade, to ascertain whether therewas a vital omission or not and whether the evidence given bywitness Sunethra at the identification parade, corroborated ornot her evidence in terms of Section 157 of the EvidenceOrdinance. Thus, the Judge's detailed analysis anddiscussion of the proceedings and the evidence elicited at theparade, was with a view to determining the credibility ofSunethra’s evidence. If there was such corroboration it woulddisclose consistency in her evidence and thereby help the trialJudge to arrive at a favourable finding in regard to hertestimonial trustworthiness and credibility. It is in thisbackground that the observations pronounced and thefindings of the learned trial Judge should be viewed. Nowherein the judgment has the learned trial Judge used the Sinhalaexpression (essteioS) which is a reference to substantiveevidence.
The learned trial Judge was at all times engrossed with theanswer given by the Assistant Superintendent of Police TudorDias, the conclusion he had reached on a perusal of thestatement of Sunethra and therefore he looked into theproceedings and evidence given at the identification parade,(produced and marked as Yl) to ascertain whether there wasan omission in those proceedings and whether that evidencedid corroborate or not Sunethra’s evidence at the trial.
Learned President Counsel was not j ustified in contendingthat the learned trial Judge had not reached a finding in regardto the testimonial trustworthiness and credibility of witnessSunethra. In his judgment at page 616, 580, 581 and 596there is a clear implied finding upholding the credibility andtestimonial trustworthiness of the evidence of witness Sunethra.Without arriving at such a finding the learned trial Judgecould not have arrived at his ajudication that the prosecutionhas proved beyond reasonable doubt the charge of rapeagainst the accused. The learned trial Judge in his judgmentby necessary implication arrived at the adjudication andfinding that witness Sunethra had given truthful evidence at
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the trial when she stated under affirmation that the accusedhad come to their house on the 30th of March 1990 and in theearly hours of the morning on the 7th of April 1990. In thecircumstances the contentions advanced by learned PresidentCounsel are unjustified and unsustainable.
Although the defence counsel at the trial has markedseveral other contradictions and omissions in an attempt toassail the credibility of the prosecution witnesses, learnedPresident Counsel who appeared for the appellant at theargument of this appeal, did not refer to such contradictionsand omissions except to those which I have so far specificallyenumerated in my judgment. In the circumstances we do notpropose to burden our judgment by recapitulating and advertingspecifically to those contradictions and omissions. But weobserve that the trial Judge in his judgment has adequatelyreferred to the aforesaid contradictions and omissionsand arrived at the conclusion that those discrepancies,contradictions and omissions do not relate to the core of theprosecution case which has been presented against theaccused.
At this stage I would advert to the evidence given by theaccused in the witness box under affirmation. The accused inthe course of his evidence denied that he ever visited the houseof Robies Singho on any day and specifically asserted that hehad not gone to this house on the 30th of March 1990 and onthe 7th of April 1990. The accused has further stated that onthe 8th of April 1990, he was summoned by Tudor Dias to theAssistant Superintendent’s office, when he was recording astatement and that he came into that office dressed in civilclothing, as he had suffered an injury about one year prior tothe alleged incident referred to in the indictment.
Under cross-examination he has stated that he had nottaken part in any official duty or investigation while he wasattached to the Horana police station in relation to Robies. Hehas specifically stated in evidence that prior to the 10th of April1990 that he has never proceeded on any occasion to the house
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occupied by Robies, Sunethra and the other members ofRobies’s family. He persisted in stating that in regard to anyofficial investigations or duty that he has never proceeded tothe house of Robies situated at Kindelpitiya, Millewa. He hasfurther stated that prior to his being summoned to theAssistant Superintendent’s office, he had not ever knowneither in person or by name, either Robies, his children or anymember of Robies’s house and that he does not know whereRobies’s house is situated. At that stage he was confrontedwith a portion of the statement which the accused had madeto Police Inspector Dharmasena. That part of the statementreads as follows:
“I have on several occasions searched Robies’s house oninformation received that he was distilling kassippu. Incarrying out these search operations I came to knowthe witnesses who have given evidence in regard to theincident referred to in the indictment”.
When the accused was confronted with this statementwhich was inconsistent with his evidence at the trial, he deniedmaking any such statement and at that juncture the aforesaidstatement was marked as 22 to contradict his testimony in.Court.
The accused further, in his evidence stated that prior tothe alleged incident narrated by the prosecution witnesses,that he had never known a person called Robies. At that stagethe accused was confronted with a part of the statement hehad made to Inspector Dharmasena which reads as follows:
“I can remember that he (Robies) had been arrested andtaken into custody”.
When he was confronted with this part of the statement,the accused stated even if it has been so recorded in thestatement that he would not accept the correctness of the factso recorded. At this stage the relevant portion of his statement
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referred to by me was marked as 23 to contradict his testimonyin Court.
At page 394 of the record the accused gave his reason forwitnesses Somawathie and Sunethra identifying him at theidentification parade. Thereafter at page 395 the accusedstated under affirmation that there was no animosity ordisaffection towards him on the part of Robies or the membersof his family. He further proceeded to state that there was noreason or cause attributable to animosity or disaffection whichinduced the witnesses to identify him at the identificationparade. At this stage the accused was confronted with a partof his statement he had made to the Inspector of PoliceDharmasena. That statement reads as follows:
“I think the witnesses who identified me at theidentification parade did identify me because thewitnesses and Robies were harbouring feelings ofanimosity and disaffection towards me."
When the accused denied ever making such a statementthis part of his statement was marked as 24 to contradict histestimony at the trial. These contradictions which greviouslyimpair the credibility of the accused, have induced the learnedtrial Judge to reject the accused’s version.
The accused has referred to the fact the on the 4th of May1989 that he had suffered from a gun shot injury near theHorana police station at the hands of insurgents. He had beenin hospital for six months and thereafter had reported for dutyon the 4th of November 1989. The accused stated that he wasput on light duty and entrusted with administrative duties andthat he had donned the police official uniform on the 3nl of April1990. The accused has stated in the course of his evidence thathe made an oral application for authorisation to be dressedin civil clothing and that an oral order was made by theSuperintendent of Police permitting him to work dressed incivil clothing.
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The learned trial Judge has commented on the fact that noquestions were put to Assistant Superintendent of PoliceTudor Dias in cross-examination to elicit such authorisationto engage in official duty whilst being dressed in civilclothing. The learned trial Judge has observed that if theSuperintendent of Police had granted such authorisation,such a communication having regard to the normalofficial routine would have been communicated by theSuperintendent of Police to the Assistant Superintendent ofPolice and thereafter transmitted to the Inspector of Police andin the circumstances, the version of the accused in regard tothe oral authorisation is inherently improbable, having regardto the proved attendant circumstances. No questions havebeen put to Assistant Superintendent of Police Tudor Dias asto whether the accused when summoned to the AssistantSuperintendent’s office on the 8th of April, came to that officedressed in civil clothing. Learned Additional Solicitor-Generalsubmitted that the evidence discloses that the accused wasclad in trousers and that he wore shoes on all occasions andin the circumstances, learned Solicitor General queried – whatwas the impediment to the wearing of khaaki trousers onaccount of a previous injury to the thigh bone? He contendedthat material facts which were interwoven with his defence hadnot been put to witness Tudor Dias in cross-examination, atthe first opportunity that presented itself and therefore thebelated version of the accused that he wore civil clothing on the30lh of March 1990, certainly does not satisfy the Test ofspontaneity/promptnes. The material part of the accused'sevidence appears at page 391 of the record and the learnedtrial Judge indulges in an evaluation of the accused's evidencein his judgment at page 588.
Police officer Tillekeratne gave evidence for the defence atthe trial. His evidence was directed at dis-crediting theevidence already adduced by witnesses Sunethra andSomawathie in regard to the visit of the accused to Robies'shouse on the 30th of March and it was also directed at
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establishing that the accused was engaged in official workwhilst being dressed in civil clothing. Witness Tillekeratnestates that he left the Horana police station on 06th/ 07th Aprilat midnight and that he came back in a lorry to the policestation at 2 a.m. He has stated that the police party left on thatoccasion to make investigations in regard to a gun. Vide page432. He does not state that on this occasion that theyproceeded to Robies’s house. The evidence in the case is thatthe accused proceeded to Robies Singho's house and knockedat the door at 3.20 a.m. Hence the evidence ofTillekeratne doesnot establish any impediment to the accused proceeding to thehouse of Robies at 3.20 a.m.
Witness Tillekeratne has stated that he made an entiy inregard to his departure from the Horana police station on the30th of March in his diary. He has failed to support his oraltestimony by producing the diary in Court. Neither did he givea satisfactory explanation as to why he had failed to make anentry in regard to his departure in the official book maintainedat the Horana Police station. At page 448 of the record(ad Jinem) answering a question in cross-examination he hadgiven a palpably false answer that besides the 6th of April 1990that he has engaged in official police duties and functions withother officers without making any entries. The material part ofTillekeratne’s evidence commences at page 432 of the recordand the learned Judge having carefully analysed andevaluated the evidence of witness Tillekeratne has very rightlyrejected his evidence holding that his evidence does notsatisfy the Test of Probability and the Test of Interest andDisinterestedness of the witness whilst holding that he is apartial and partisan witness. He stated that witness Tillekeratnemade no entry anywhere in regard to his alleged official activityon the 6th of April but has falsely stated that he made an entryin regard to his departure from the Horana police station onthe 30lh of March in his diary. Vide page 437. He has also failedto produce his diary to support his bare oral statement to theCourt.
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The other defence witness who has given evidence isDananja Amarasena Walatara in whose house the accusedresided as a boarder. He has stated under affirmation that onthe 6th of April 1990 the accused did not depart from hisboarding house after 7.30-8.00 o’clock in the night. He hasstated that he slept in the hall and if the accused had thenecessity to go out, he would have had to proceed past himwhile he was sleeping in the hall. Although this witnessattempted to state that after the accused came to his boardinghouse on 06. 04. 1990 that he did not get out of his house till5 o’clock on the 7th of April, as the learned trial Judge has veryrightly observed, this witness was compelled to admit that itwas possible for the accused to have left the boarding houseunseen and un-noticed by the witness and that if a certainhighly confidential raid or detection had to be indulged in, thatthe accused would not have disclosed the fact of his leaving thehouse of the boarding master.
The learned trial Judge has applied theTest of Interest andDisinterestedness of a witness and proceeded to analyse andevaluate witness Walatara’s evidence. He has observed thoughthe witness was unable to recollect important events in hisown life and his business activities, that the witness evinceda recollection of events and incidents relating to the accusedand thereby, the learned trial Judge has applied the Test ofProbability and also arrived at the conclusion that he is aninterested and partisan witness. This witness had made abelated statement one month and seven days subsequent tothe arrest of the accused. In the circumstances, the learnedtrial Judge has applied the Test of Spontaenity/Promptnessand arrived at adverse findings in regard to his testimonialtrustworthiness. The learned trial Judge has commented thatin regard to the accused, the witness has admitted that he haskept in mind and recollected facts only after the accused wasarrested. This witness had attempted to state that he hadtaken special interest and devoted special attention to theaccused and therefore the accused could not have gone out onthe 6th of April 1990 at night without his knowledge and notice.
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The learned trial Judge has applied the Test of Probability andImprobability and has arrived at the conclusion that histestimony is replete with inherent and intrinsic improbability.He has observed though this witness was unable to rememberand recollect the day when he closed up his business, thewitness was able to recollect the day that this accused isalleged to have committed the offence and also the day he wasarrested, The learned trial Judge has in arriving at this adversefinding on the credibility of the witness stated thus:
This Court is unable to say that the learned trial Judge,who had the benefit of the demeanour and deportment ofthe witnesses who had given evidence before him, has notindulged in a j ust and correct evaluation of the testimony of thedefence witnesses. In these circumstances, this Courtupholds the evaluation of the evidence indulged in by thetrial Judge.
For the aforesaid reasons, we hold that there is no meritin the appeal of the accused-appellant and the submissionsadvanced by the learned President's Counsel who appeared forthe accused-appellant are untenable and unsustainable. Inthe circumstances we uphold the findings, conclusions andadjudications reached and pronounced by the learned trialJudge on counts two and three of the indictment.
In regard to the sentence the learned trial Judge hassentenced the accused to a term of twelve years rigorousimprisonment on count two (charge of rape) and to a term offive years imprisonment in respect of count three of theindictment (charge of abetment of rape) and made order thatthe sentences do run concurrently. However, we observe thatthe accused had been convicted on the 14 th of August 1996 and

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that he has been In remand after conviction to the present dayfor a period of three years. Extending a hand of mercy tothe accused-appellant we proceed to deduct the aforesaidperiod of three years spent in remand and thereby we reducethe term of imprisonment imposed on count two to a term ofnine years imprisonment. We affirm the sentence of five yearsimprisonment imposed by the learned trial Judge on countthree. We make order that both sentences do take effect andrun concurrently. The accused is directed to serve these termsof imprisonment from today. Subject to this variation in theterm of imprisonment on count two, we proceed to dismiss theappeal.
In conclusion, we wish to place on record our appreciationof the assistance rendered to this court by Learned AdditionalSolicitor General on the varied issues of fact and of law whicharose for consideration during the protracted argument of thisappeal.
J.A.N. DE SILVA, J. – I agree.
Appeal dismissed.
Sentence varied.