give evidence, kill her”

she was asked to do”
pistol, the 2nd accused appellant was armed with manna knife

CAUpali Sarathchandra & Others vs Republic of Sri Lanka271
(Jagath Balapatabendi, J.)
work early in the morning to their Brick Clink about one and a half milesaway from their home, when they were informed that the Police wassearching for theum they stopped the work and went to their Aunt’s place.Later, they surrendered to the Police. In cross examination he had admittedthat it takes only 10 to 15 minutes to go to the Brick Clink from home, Inaddition to the alibi, he had denied any involvement in the incident andthey were not aware of the deaths of these five deceased though theywere neighbours.
At the hearing of the Appeal the counsel for the accused appellantsassaled the Judgment on the following grounds:-
The Learned High Court Judge had failed to assess the credibilityof the only eye – witness Nadeera Somananda
The Learned High Court Judge had failed to evaluate and considerthe evidence of the 2nd accused appellant.
Failure of the High Court Judge to comply with the provisions ofsection 279, 283 (1) and 283 (5) of the Criminal Procedure Code,have deprived the accused – appellants of a fair trial.
The evidence of the eye – witness Nadeera Somananda revealed thathe had come home with his sister Shiromi from the tuition house around5.30 a. m. in the morning on the day of the incident. The dead body ofShiromi was found inside the house with cut injuries, established that theversion of the witness that he came home with his sister Shiromi. Therewas no doubt as to the identity of the assailants as the incident hadoccurred around 6 a. m. According to the witness there was enough lightto identify the assailants, and the witness knew the accused – appellantswell as they are neighbours. The State Counsel contended the fact thatthere was enough light inside the house had been established as theassailants, had directly attacked all the deceased without any support ofartificial illumination. Soon after the incident the witness had gone to hisaunt’s place (mother’s sister) and immediately narrated the whole incident,which had been corroborated by Premawathie (Aunt of the witness). Thelearned Hight Court Judge had observed and commented on the spontaneityof the witness. The medical evidence of the Doctor who conducted thepost – modems of the five deceased had corroboratd the evidence of theeye – witness Nadeera as to the injuries found on the dead bodies, (cutinjuries and gun – shot injuries) The Police officer who investigated hadcorroborated the evidence of the eye witness Nadeera as to the positions
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of the five dead bodies found inside the house, and recovery of emptycartridges outside the house and inside. On a perusal of the judgement itis obviously clear that the Learned High Court Judge had evaluated theevidence with reference to spontaneity, consistency, probability anddemeanour of the eye – witness.
The Counsel for the accused – appellants strongly contended that it isimpossible to belive the witness Nadeera, who had been hinding underthe table, where the 5th deceased Chandra also took shelter under thesame table was dragged out by the 2nd accused – appellant and cut todeath, the said table was 1 1/2 ft long and 2 ft wide which could give littlecover to two people, as such the version of the eye witness was improbable,as to how the witness escaped from seeing by the assailants.
The State Counsel contended that, the eye – witness Nadeera in hisevidence had shown the size of the table was similar to the table that wasthere inside Court, which was 3 ft long and 2 1/2 ft wide (as observed byCourt). The Police officer in answering a question had stated the tablewas 1 1/2 ft long and 2 ft wide may be a typing error, further he contendedthere the defence counsel had not even suggested to the eye – witness orto the Police Officer whether there was enough space for two people tohide under it. His contention also was the 5th deceased Chandra cameand hid under the same table as there was enough space to hide her-self under it, and the table was placed inside the room near the wallclose to the bed, so that a small boy of 12 years old (the witness) couldhave hid himself without being seen by the assailants.
The Section 134 of the Evidence Ordinance sets out that “no particularnumber of witnesses shall in any case be required for proof of any fact". InPlaniyandi Vs Sfafe(1) Alles J had quoted the observation made inFatusantal Vs Emperor(2) the Patna High Court held that “The mere factthat the evidence of the only eye – witness of a crime is that of a child of6 years of age, is not a ground for not relying upon it, especially whenthe evidence is given without hesitation and without the slightest suggestionof tutoring or anyting of that sort, and there is corroboration of the evidencein so far as narrates the actual facts, and of the child’s subsequent conductimmediately afterwards.”
In Walimunige John Vs State<3) G. P. A. de Silva (S. P. J) observed that
no particular number of witnesses shall be required for the proof of any
Upali Sarathchandra & Others vs Republic of Sri Lanka
(Jagath Balapatabendi, J.)
fact. The adequacy of one witness to prove a fact in terms of the section134 of the Evidence Ordinance will hold good in a case where only onewitness is available to the party desiring to establish a fact, and whereonly one witness is called even though others are also avilable." In theinstant case the only eye witness available for the prosecution to provethe case was the witness nadeera Somananda 12 years old son of the1st and 2nd deceased. The offence had been committed not in a publicplace within the sight of many. Sothat, his testimony should be truthfuland trustworthy. The learned trial Judge could act on the evidence of thissolitary witness Nadeera Somananda provided the trial Judge was convincedas regard to his testamoniai trustworthiness and credibility.
in the case of Sumanasena Vs Attorney General(4) it was held “ Evidencemust not be counted but weighed and the evidence of a single solitarywitness if cogent and impressive could be acted upon by a Court of Law."
It is appearent that the learned High Court Judge had carefully analyzed,evaluated and weighed the evidence of the eye witness NadeeraSomananda, and was convinced that the eye-witness had given cogent,and'truthful testimony in Court, also by observing the demeanour anddeportment of this witness who was subjected to very long and protractedcross – examination, had arrived at findings in regard to credibility andtrustworthiness of the testimony of this witness, in view of thosecircumstances he had belived the evidence given by the witness withoutany hesitation or doubt, (at page 513, 526, 527 and 535 of the Brief)
On a perusal of the evidence, we are also of the opinion that the evidencegiven by only eye – witness Nadeera Somananda was trustworthy andcredible.
It appears that the learned High Court Judge was of the view that as theprosecution had established a strong case with incriminating and cogentevidence against the Accused – appellants, in the circumstances theevidence of the 2nd accused – appellant (the alibi and the denial of anyinvolvement in the incident) had failed to create any reasonable doubt onthe prosecution version.
Having considered all the evidence led in the case we are also of theview that the learned Hight Court Judge had come to a correct conclusionthat the prosecution had proved the case against both accused appellantsbeyond reasonable doubt, and the evidence given by the 2nd accusedappellant had failed to raise any reasonable doubt or even a suspicion on
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the prosecution case, and no reliance could be placed on the evidence ofthe 2nd accused appellant.
In regard to the third ground alleged, that the learned Might Court Judgehad failed to comply with section 279, 283 (1) and 283 (5) of the CriminalProcedure Code>
(1) Section 279 of the Criminal Procedure Code states as follows:-
The Judgment in every trial under this Code shall be pronounced inopen Court immediately after the verdict is recorded or save as providedin section 203 at some subsequent time of which due notice shall begiven to the parties or their pleaders, and the accused shall if in custodybe brought up or if not in custody shall be required to attend to hearjudgment delivered except when his personal attendance during the trialhas been dispensed with and the sentenced is one of fine only or whenhe has been absent at the trial.
Section 203 of the Criminal Procedure Code, (which deals with the trialby Judge of the High Court without jury) states as follows:- “When thecases for the prosecution and defence are concluded, the Judge shallforthwith or within ten days of the conclusion of the trial record a verdict ofacquittal or conviction giving his reasons therefore and if the verdict isone of conviction pass sentence on the accused according to law."
Thus I am of the opinion that the relevant section which should becomplied with, by the Judge of the High Court is section 203 of the CriminalProcedure Code. And it appears that the Learned High Court Judge hadcorrectly complied with the Section.
On examination of the provisions of the Section 283 (1) and 283 (5) itappears that these two provisions are mandatory for Primary Courtprocedure.
(Foot note under Provisions of Section 283 indicate that "Section 279and 283 shall apply to every Judgment of a Primary Court”)
In the case of King Vs Davodulebbe{5) – the accused – appllants hadurged that, the failure of the Judge to observe the provisions of section 304of the Criminal Procedure Code amounted to an irregularity which couldnot be cured. Wijewardena, CJ held that “ failure to comply with section304 is an irregularity curable under section 425 of the Criminal ProcedureCode.”
Upali Sarathchandra & Others vs Republic of Sri Lanka
(Jagath Balapatabendi, J.)
Section 304 and section 425 of our Old Criminal Procedure Code couldbe construed and equated to the sections 279 and 436 respectively of thepresent Criminal Procedure Code (Chapter 26).
Thus, I am of the opinion that upon the facts and circumstances in theinstant case, even if there had been an irregularity, such irregularity is notfatal to the conviction, and is cured by section 436 of the Criminal ProcedureCode also it had not caused any prejudice to the accused – appellants.
Futher, on a persual of the proceedings at the trial it is apparent thatthe Learned High Court Judge on 01. 06. 2001 after conclusion of thesubmissions of both counsel, had commenced to deliver the Judgementaround 3.20 p.m. in Court, intially he had dealt with the ingredientsnecessary for the charge of muder, common intention, presumption ofinnocence of the accused, burden of proof by the prosecution, proof beyondreasonable doubt, benefit of the doubt, and the evidence available toestablish the above mentioned legal principles with reference to theevidence of the witness Nadeera Somananda and other evidence led inthe case, thereafter he had proceeded to convict the 2nd and 3rd accusedapplleants the charges mentioned in the indictment, and the allocutuswere recorded. The Learned High Court Judge had mentiond in the judgmentas it would take about six hours to evaluate all the evidence giving reasonsfor conviction, he had continued to dictate the Judgement to thestenographer in chambers, and passed the death sentence on both accusedappellant on the same day in Court fas reflected in the case record).
Thus, the argument of the counsel that it was practically impossible todeliver page type written Judgment on the same day, do not hold water,as the normal practice in the Hight Court is to dictate the Judgement tothe stenographer, and if convicted pass the sentence, typing of the Judgmentis done by the stenographer thereafter.
Having considered all the grounds of appeal urged by the accusedappellants, I find no reason whatever to set aside the conviction.
For the reasons aforesaid, I uphold the conviction and sentences passedon the accused – appellants. The appeal is dismissed.
Immam, J. – I agree.appeal dismissed.