SUMANASENA v. ATTORNEY-GENERAL

018-SLLR-SLLR-1999-V-3-SUMANASENA-v.-ATTORNEY-GENERAL.pdf


CA
Sumanasena v. Attorney-General
137
SUMANASENA
v.ATTORNEY-GENERAL
COURT OF APPEAL
JAYASURIYA, J„
KULATILAKE, J.
C.A. NO. 61/97.
C. MATARA NO. 129/94.
FEBRUARY 09, 1999.
Murder – Evidence Ordinance s. 33, s. 134 – Testimonial trustworthiness and
credibility – Belated witness – Motive – Failure of accused to give evidence.
Held:
Evidence must not be counted but weighed and the evidence of a singlesolitary witness if cogent and impressive could be acted upon by a Courtof law.
Just because the witness is a belated witness Court ought not to rejecthis testimony on that score alone. Court must inquire into the reason forthe delay and if the reason for the delay is plausible and justifiable theCourt could act on the evidence of a belated witness.
Though the prosecution is not required to establish a motive once a cogentand intelligible motive has been established that fact considerably advancesand strengthens the prosecution case.
When the prosecution establishes a strong and incriminating cogentevidence against the accused, the accused in those circumstances wasrequired in law to offer an explanation of the highly incriminating circum-stances established against him.
APPEAL from the judgment of the High Court of Matara.
Cases referred to:
Mulluwa v. The State of Madhya Pradesh – 1976 AIR SC 989.
Walimunige John v. State – 76 NLR 488, 495-496.
King v. N. A. Fernando – 46 NLR 254 at 255.
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Sri Lanka Law Reports
[1999] 3 Sri LR.
Jagathsena v. Bandara – [1984] 2 Sri LR. 397.
Q v. Pauline de Croos – 71 NLR 169 at 180.
K v. Haramanis – 46 NLR 403.
K v. Appuhamy – 46 NLR 128 at 132.
K v. Kularatne – 71 NLR 529 at 534.
Geekiyanage John Singho v. K – 46 NLR 73.
R v. Cockraine – Guruneys Report page 479.
Rex v. Burdette – 18204 Band Alderman Report 95.
K v. Seedar de Silva – 41 NLR 337 at 344.
Q v Seetin – 68 NLR 316 at 321.
Chandradasa v. Q – 72 NLR 160 at 162.
A. G. v. Baddewitarana – [1991] 1 Sri LR. 245.
Republic v. Illangatilaka – [1984] 2 Sri LR. 38.
Republic v. Gunawardena – [1981] 2 Sri LR. 315 at 329.
R v. Gunaratne – 47 NLR 15.
Arendtsz v. Wilfred Peiris – 10 CLW 121.
R v. Naylor – 23 CAR 177.
R v. Rhodes – 1899 1 QB 77.
R v. Jane Blatherwick – 6 CAR 281.
R v Bernard – 1 CAL 218.
R v. Jackson – 37 CAR 43 at 50.
R v. Volsin – 13 CAR 89 at 93.
Kops v. Q – 1894 AC 650.
R v. Sparrow – 1973 2 ALL ER 129.
Republic v. Gunawardena – 78 NLR 209 at 212.
Republic v. Lionel – SC 165/75 SCM 20.12.76.
Ranjith Abeysuriya, PC with Harshika de Silva for accused-appellant.P. G. Dep, DSG for Attorney-General.
Cur. adv. vult.
February 09, 1999.
JAYASURIYA, J.
Learned President's Counsel strenuously urged that the evidenceagainst the accused in regard to identity in particular, rests on theevidence of the solitary witness Nandasena.
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Sumanasena v. Attorney-General (Jayasuriya, J.)
139
In our law of evidence the salutary principle is enunciated that evidencemust not be counted, but weighed and the evidence of a single solitarywitness if cogent and impressive could be acted upon by a Courtof law. Section 134 of the Evidence Ordinance sets out that "noparticular number of witnesses shall in any case be required for theproof of any fact". In an Indian case the conviction for murder wasaffirmed on the mere circumstantial evidence given by a solitarywitness and a pointed reference was made to.the principle whichwe have adumbrated above vide Mulluwa v. The State of MaddhyaPradestt'K Testimony must always be weighed and not counted andthese principles have been followed by Justice G. P. A. De Silva inWalimunige John v. State{2) King v. N. A. Fernanda. Thus, the Courtcould have acted on the evidence of the solitary witness Nandasenaprovided the trial Judge was convinced that he was giving cogent,inspiring and truthful testimony in Court. The learned trial Judge hascome to such a favourable finding in favour of witness Nandasenaas regards his testimonial trustworthiness and credibility. He has hadthe benefit of the demeanour and deportment of this witness who wassubjected to a very long and protracted cross-examination. This Courtdoes not have such benefit and Justice Collin Thome regardeddeportment and demeanour as the all important factor when it relatesto the arriving at of findings in regard to credibility even in a casewhere there were contradictions inter se in the evidence of theprosecution witnesses. In this context he remarked in weighingevidence the Judge must take into consideration the demeanour anddeportment of the witnesses in witness box and treat it as all importantfactor when assessing the contradictions which have been proved -Jagathsena v. Bandaranayakef4). In this instance the trial Judge atpage 114 of the judgment has stated that despite the long drawn cross-examination the defence counsel was unable to make a dent on thecredibility of the witness and establish to the Court that the witnessought not to be believed. He proceeds to state thus in Sinhala. o®Sa) ©gee) roo@o egcaooro® 63®0 ocJcgBd sxjg>. 0©Se» ®® oSftgoefi g»e@q 0©oS®.'There is a strong finding favourable to witness Nandasena in regardto his testimonial trustworthiness on the part of the trial Judge whohad the benefit of the demeanour and deportment of the witness overa long drawn and protracted cross-examination of the witness.
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Sri Lanka Law Reports
[1999] 3 Sri LR.
It is manifest that this witness has come out with the version, thathe later volunteered in the trial Court, to the Magistrate as well onemonth after the happening of the incident. Learned counsel laid stresson this fact and described the witness as a belated witness and thatin the circumstances there was opportunity for fabrication and con-coction. Justice T. S. Fernando in Queen v. Pauline De CroosP at180 had to consider a similar issue and his Lordship observed that"just because the witness is a belated witness the Court ought notto reject his testimony on that score alone and that a Court mustinquire into the reason for the delay and if the reason for the delayis plausible and justifiable the Court could act on the evidence of abelated witness. Witness Nandasena has stated before the trial Judgethat he had known both accused before this incident. He has statedthat they have known the accused and they had slept with Sumanasenaon the verandah of several houses and he has also stated that thefirst accused who was alleged to have committed this offence withHaramanis Kuragama who was a powerful businessman described asRajjuruwo in the village and who was feared by all. He has statedthat in view of the fact they knew these persons and because of thefear generated in his mind he delayed to make his statement for aperiod of one month. Trial Judge looked into these reasons and hasaccepted the grounds adduced by the witness for the delay anddecided to act on his testimony.
The learned trial Judge has also stated that the evidence ofNandasena is supported by the evidence adduced at the trialemanating from another witness. The evidence given by Kithsiri NihalRohan Fernando at the non-summary Magisterial inquiry was producedwithout objection in terms of section 33 of the Evidence Ordinanceas the conditions set out therein were satisfied and marked as P1.In the course of his testimony this witness Kithsiri Nihal RohanFernando has stated that he recovered a match box from theaccused's house and had also recovered a sarong from the accused'shouse which was smelling of kerosene oil. He has stated thus: 'dSaJcs®0Q)(3 0cS esj^ri) 0s)65X33 § ®©d) toi S0C33'. Thereafter, he has proceededto the house of Haramanis Kuragama and recovered certain articles;
The eye-witness Nandasena has testified to the fact that the twoaccused acting in concert had thrown some substance on the boutiqueoccupied by the two deceased which led to a.conflagration of theboutique. The medical evidence adduced by Prof. C. Niriellaestablishes beyond all doubt that the death of the two deceased wascaused due to severe burning of their bodies in their entirety; the entireskin was burnt from the entire bodies exposing the wasted musclesdue to the conflagration that took place inside that boutique. Thelearned trial Judge has referred extensively at pages 112 and 113to the medical evidence. Hence, we do not propose to recapitulatethat evidence. Cause of death has been established beyond allreasonable doubt as being due to death resulting from extensive burninjuries received by the deceased. In these circumstances the learnedtrial Judge was not in error when he stated that having regard tothe discovery of the sarong which was smelling of kerosene oil andthe recovery of certain specific articles from Kuragama's house thatNandasena's evidence is supported and strengthened by theevidence of the Police officer who carried out the investigation.
Though the prosecution is not bound to prove a motive againstthe accused, in the instant case the prosecution has established byconvicing and intelligible evidence a motive against both accused. Thesecond accused in the Magisterial inquiry was dead at the trial. Itis in evidence that Kuragama carried on a lucrative business in thecollection and sale of cinnamon and spice and he was the onlycollector of such spices in the village till such time as the deceased'sfather set up a competing business. Thereafter, Kuragama's feelingswere strained towards the deceased's father. The prosecution casepresented before the trial Judge was to the effect that the setting fireto the business establishment of the deceased was due to businessrivalry and competition. There is evidence led in the case that people
the items recovered after the commission of the alleged crime in
Kuragama's house has been described by him as follows:

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Sri Lanka Law Reports
[1999] 3 Sri LR.
in the vicinity were aware that both deceased lived in this boutiqueand slept in the boutique and only went to their homes to partakeof their meals. In the circumstances the prosecution version has beenthat Kuragama being a person who set up a business about 100 yardsaway, ought to have been aware of this fact and the setting fireto the boutiques was with the intention of killing both deceased andputting an end to the rival business. Though the prosecution isnot required to establish a motive, once a cogent and intelligible motivehas been established, that fact considerably advances and strengthensthe prosecution case. See King v. Haramanisfs>, King v. Appuhamymat 132 per Justice Keuneman; King v. KularatneP• at 534.
The prosecution has established a strong and incriminating cogentevidence against the accused and the accused, in these circum-stances, was required in law to offer an explanation of the highlyincriminating circumstances established against him. The accused hasfailed to give evidence or to make any statement from the dock.In these circumstances, the learned trial Judge was entitled to drawcertain inferences which he deemed proper from the failure ofthe accused to give evidence in explanation of such circumstances.See the Rule in Geekiyanage John Singho v. Kincfa]. Equally,the principles laid down by Lord Ellenborough in Rex v. Cockrain&'0)and by Justice Baron Pollock and Justice Abbott in Rex v. Burdetfu)are applicable to the facts of the instant case. These dicta havebeen followed with approval and applied in Sri Lanka in King v. Seedarde Silva<’2) at 344; Queen v. Seetirf'3) at 321 per Justice T. S.Fernando; Chandradasa v. Queeri'4) at 162 per Justice Samarawickremaand in Attorney-General v. Baddewitaranef'5'; Republic v. Illangatilekel'e,Republic v. Gunawardena(17) at 329 (per Justice Collin Thome); Rexv. Gunaratnd' Arendtsz v. Wilfred P/er/s091 (per Justice Moseley).
We hold that the learned Judge, in these circumstances, wasentitled to draw the necessary inferences and compelling inferencesfrom the circumstance, that is from the failure of the accused to offeran explanation of the highly incriminating circumstances established
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Sumanasena v. Attorney-General (Jayasuriya, J.)
143
and in the face of the strong case established against him by theprosecution. Equally, we hold that the dictum of Lord Ellenboroughis equally applicable to the facts of the instant case. In addition though,generally there is a Right to Silence conferred on an accused personat law – R v. Nayloi<20)- in view of the highly cogent and incriminatingfacts established by the prosecution against the accused-appellant,the exceptions to that general rule, were applicable in that instantcase – vide for the exception to this general rule – Rex v. RhodesP'KRex v. Jane Blatherwick22), Rex v. Bernard23), Rex v. Jacksori2A] at50; Rex v. VoisidZ5) at 93; Kops v. QueeiiX); R v. Sparrow^Z7). Videalso the judgments of Justice Tennekoon in Republic v. Gunawardend281at 212 and Republic v. Lionel. In the circumstances, we see nomerit in the contentions advanced on behalf of the accused-appellantand we proceed to dismiss the appeal after careful consideration.
KULATILAKE, J. – I agree.
Appeal dismissed.