005-SLLR-SLLR-2009-V-1-GUNASIRI-AND-TWO-OTHERS-vs-REPUBLIC-OF-SRI-LANKA.pdf
CA
Gunasiri and two others vs. Republic of Sri Lanka
39
GUNASIRI
AND
TWO OTHERSvs .
REPUBLIC OF SRI LANKA
COURT OF APPEALSISIRA DE ABREW. J.ABEYRATNE J.
CA 116/2003.
HC BALAPITIYA NO. 111.FEBRUARY 27, 2009.MARCH 2, 3, 4, 2009.
Penal Code – Section 296 – Section 294 (1) – Section 294 (3) – Murder -common intention – Dock statement – Test ofpromptness – Alibi – Failureto put his case in cross examination – Presumption? – Duty of Judgesin criminal cases.
The three accused-appellants were convicted for the murder of one A andwere sentenced to death. The 1st appellant – withdrew his appeal. The1st and 3rd accused-appellant are brothers, the 2nd accused-appellantis the brother in law of the Is1 and 3rd accused-appellants.
The 2nd accused-appellant contended that he did not share commonmurderous intention with the 1st and 3rd accused-appellants, andfurther contended that, he did not figure in the incident – right fromthe beginning. The 3rd accused-appellant's position was that witnessR – wife of the deceased was an unreliable witness and that his dockstatement has not been considered by the trial Judge, where in his dockstatement he had taken up the position that he was not at the scenebut at the temple.
Held:
To establish the existence of a common intention it is not essentialto prove that the criminal act was done pursuant to apre-arranged plan. A common intention can come into existencewithout a prearrangement. It can be formed on the spur of themovement.
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12009] 1 SRILR.
In a case of murder when two or more accused persons arecharged on the basis of common intention, the prosecution casewill not fail if the prosecution fails to establish the identity of theperson who struck the fatal blow. If the prosecution proves thatthe other accused person shared a common criminal intentionenvisaged in Section 294(1) or Section 294 (3) with the personwho struck the fatal blow, the former is liable for the offence ofmurder.
Held farther:
The evidence of R satisfies the test of consistency, the test ofprobability, she is a reliable witness.
Although the 3rd accused appellant raised an alibi in his dockstatement he failed to suggest his position to the prosecutionwitnesses.
It is a rule of essential justice that when ever the opponent hasdeclined to avail himself of the opportunity to put his case in crossexamination, it must follow that the evidence tendered on thatissue ought to be accepted. The failure to suggest the defence ofalibi to the prosecution witnesses who implicated the accused,indicates that it-was a false one.
In evaluating a dock statement the trial Judge must consider thefollowing principles:
If the dock statement is believed it must be acted upon.
If the dock statement creates a reasonable doubt in theprosecution case the defence must succeed.
Dock statement of one accused should not be used against theother.
Per Sisira de Abrew. J:
“The trial Judge has not complied with the lsl principle stated above,I have earlier expressed the view that the defence of alibi is an afterthought, and I therefore hold that the failure to comply with the abovestated 1'* principle has not caused prejudice to the accused appellant -The trial. Judge has complied with the 2nd principle and had not usedthe dock statement – of the 3rd accused appellant against the others”.
CA
Gunasiri and two others vs. Republic of Sri Lanka
(Sisim De Abrew, J.)
41
Per Sisira de Abrew. J:
“It is unfortunate that the trial Judge has taken 2 years to hear andconclude this case although it could have been concluded within7 days. This kind of sloppy conduct will result in an erosion of publicconfidence in the judicial system of the country. Criminal trials must beheard on a day to day basis. Justice demands the adoption of the saidprocedure by judges in lower courts. The adoption of the said procedurewill retain public confidence in the judicialnsystem and help both thetrial Judge and Counsel in the discharge of their duties.”
APPEAL from a judgment of the High Court of Balapitiya.
Cases referred to:-
Queen vs. Mahathun 61 NLR 540.
Ramalochan vs. Queen 1956 A1 475 (PC)
Ariyadasa vs. The Queen 68 NLR66 at 71
Sarwan Singh vs. State of Punjab 2002 AIR SC iii at 3652, 3656Indian Supreme Court
Bobby Mathew vs. State of Kamatake 2004 Cr. U 3003
Kularatne vs. Queen – 71 NLR 529
Ranjith Abeysuriya PC for 2nd accused-appellantBulathsinghalage for 3rd accused-appelantYasantha Kodagoda DSG for respondent
Cur.adv.vult
March 4, 2009SISIRA DE ABREW, J.
Heard both counsel in support of their respective cases.The 1st accused-appellant at the veiy inception of this argumentwithdrew his appeal. The accused-appellants in this case wereconvicted for the murder of a man named Weerakkodi Ariyadasaand were sentenced to death. This appeal is against the saidconviction and the sentence.
The facts of this case may be briefly summarized asfollows:
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Ratnawali who is the wife of the deceased person, isthe sister of the 1st and the 3rd accused appellants who arebrothers.
The 2nd accused-appellant is the brother-in-law ofthe Is* and the 3rd accused-appellants. On the day of theincident around 7.30 p.m., the 1st accused-appellant cameto the house of the deceased and took him away saying thathe wanted to discuss a certain matter with the deceasedperson. The deceased person at this time took a club andwent with the 1st accused-appellant. Fifteen minutes laterRatnawali, on an information given by Margret, a neighbour,that the deceased person has got involved in a brawl, went nearthe house of Dayananda. She then found her husband lyingfallen on the ground. When she shouted as to who did thisall 3 accused appellants armed with weapons arrived at thescene. The 1st accused appellant and the 3rd accused appellantwere respectively armed , with a manna knife and a swordwhile the 2nd accused with a club. The 1st accused at thisstage when questioned by Ratnawali as to what they did,addressed her in the following language: “We will kill himand look after you and the children”. When the 2nd accused-appellant raised his club saying that you too will be assaulted,the 3rd accused uttered the following words: “Don’t attackher. She is our sister.” The 3rd accused further uttered thefollowing words “He is still alive attack him”. Thereupon all3 accused appellants attacked the deceased with theirweapons. When the deceased person worshipped, the 1staccused appellant attacked his hand. Ratnawali says in herevidence that she identified the . accused appellants and herhusband with the aid of the light that was shedding fromthe house of Dayananda. When the witness tried to go tothe police station, three accused-appellants prevented herfrom going to the police station. However Ratnawali made acomplaint to the police station around 10.00 p.m.
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Gunasiri and two others vs. Republic of Sri Lanka
(Sisira De Abrew, J.j
43
Learned President’s Counsel appearing for the 2ndaccused appellant contended that the 2nd accused did notshare a common murderous intention with the 1st and the 3rdaccused appellants and therefore he could not have beenconvicted for the offence of murder. This was the mainsubmission made by the learned President’s Counsel. Intrying to substantiate the above ground, learned President’sCounsel submitted that the 2nd accused did not figure in theincident right from the beginning. He tried to contend thatthere was no pre-arranged plan. In finding an answer to thissubmission, I would like to consider the judicial decision inQueen vs. Mahathun{l) wherein the Court of Criminal Appealheld thus: “To establish the existence of a common intentionit is not essential to prove that the criminal act was done inconcert pursuant to a pre-arranged plan. A common intentioncan come into existence without pre-arrangement. It can beformed on the spur of the moment.”
Learned President’s Counsel further contended thatthe death of the deceased had not been caused by the 2ndaccused appellant. He therefore contends that the 2nd accusedappellant could not be found guilty for the offence of murder.Although the learned President’s Counsel contended so,the evidence indicates that the 2nd accused appellant attackedthe deceased with the club in his hand. Medical evidenceindicates that the deceased person was subjected to anassault with a club. In finding an answer to the submissionsmade by the learned President’s Counsel, it is relevant toconsider the Judicial decision of the Privy Council inRamalochan vs. QueeriF1 which was considered by HisLordship Justice T. S. Fernando in Ariyadasa Vs. the Queen131at 71. In Ramalochan’s case, the appellant Ramalochanhad been charged with murder. The evidence wascircumstantial and right up to the stage when Ramalochan,who testified on his own behalf, came to be cross examined, thecase for the prosecution had been that Ramalochan himselfhad killed the deceased. In the course of the cross examinationof Ramalochan by the counsel for the prosecution, the lattersuggested to the witness that the fatal blow was struck
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not by him (Ramalochan), but by another man – who wasnot on trial – and that the appellant aided and abetted thisother man. It was contended on behalf of Ramalochan thatimproper prejudice had been caused to his defence by thisalleged change of front on the part of the prosecution. As tothis Court observed: “Their Lordships are unable to take theview that there was any illegitimate or improper exercise ofcounsel’s right and duly to cross examine the accused. Thecrown case was that the accused had murdered this girl. Howand in what circumstances the fatal blow was struck was oneof the mysteries of the case. Whether or not the accused, ifhe carried out the murder, was assisted by someone else wasanother unknown feature in the case. Whether the accusedhimself struck off the girl’s head or was a party to someoneelse doing so was immaterial. In either case he was guilty ofmurder”
Having considered the principle laid down in the abovejudicial decision, I may express the following view. In a caseof murder when two or more accused persons are chargedon the basis of common intention, the prosecution case willnot fail if the prosecution fails to establish the identity of theperson who struck the fatal blow. If the prosecution provesthat the other accused person shared a common criminalintention envisaged in section 294 (1) or 294 (3) of the PenalCode with the person who struck the fatal blow, the former(the other accused) is liable for the offence of murder. On aconsideration of the principle laid down in the abovejudicial decision it is manifest that the contention raisedby the learned President’s Counsel for the 2nd accusedappellant is wholly untenable and devoid of merit. Forthe above reasons I reject the submissions of the learnedPresident’s Counsel.
Learned counsel appearing for the 3rd accused appellantsubmitted that witness Ratnawali was an unreliable witness.I shall now consider this contention. In this connection thefollowing matters are relevant:
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Gunasiri and two others vs. Republic of Sri Lanka
(Sisira De Abrew, J.)
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Detailed description of the incident including the wordsspoken by the 1st accused appellant and the 3rd accuse^appellant given by Ratnawali.
Corroboration of her evidence by the observation atthe scene. According to the Investigating Officer, hefound trampled grass near the house of Dayananda. Heobserved blood stains, blood stained sarong, manna knife
• and a pair of slippers at the scene. This sarong was lateridentified by the wife of the deceased as that of thedeceased.
Ratnawali on the same- day around 10.00 p.m. made acomplaint to the police. Therefore her evidence satisfies thetest of promptness. According to her evidence the 1st accusedattacked the deceased person when he was worshiping. Shefailed to mention this fact in her statement. Apart from this,there were no major contradictions or omissions marked inher evidence. Therefore her evidence satisfies the test ofconsistency. Upon the information given by Margret sherushed to the scene of the offence and shouted as to whodid this. Without delay she made a complaint to the police.When I consider all these matters I hold the view that herevidence satisfies the test of probability. When I consider allthese matters, I hold the view that Ratnawali is a reliablewitness and therefore reject the submission made by thelearned counsel appearing for the 3rd accused appellant.
The learned counsel appearing for the 3rd accusedappellant next contended that the dock statement of the 3rdaccused appellant had not been considered by the learnedtrial Judge.
The 3rd accused appellant in his dock statement took upthe position that at the relevant time he was not at the scenebut at the temple. He further stated that at this time hisuncle and the priest of the temple were with him at thetemple. He further stated that both these witnesses are deadnow. In the next sentence he stated that the priest had gone
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to India on a pilgrimage. I therefore note that he contradictedhis own statement made in the dock.
Although the 3rd accused appellant took up the positionthat he was at the temple at the relevant time with the priest,he never asked for summons on the priest nor did he file alist of witnesses indicating the name of the priest. The trialcommenced on 29/11/2001 and the defence case wasconcluded on 19/9/2003. Thus during a period of 2 years hefailed to move Court to get summons on the priest.
Although the 3rd accused appellant raised an alibi in hisdock statement, he failed to suggest this position to prosecutionwitnesses. The learned Counsel who appeared for thedefence did not suggest to the prosecution witnesses the alibiraised by the 3rd accused appellant. What is the effect of suchsilence on the part of the counsel. In this connection I wouldlike to consider certain judicial decisions. In the case ofSarwan Singh vs. State of Punjab*4' at 3656 IndianSupreme Court held thus: “It is a rule of essential justicethat whenever the opponent has declined to avail himself ofthe opportunity to put his case in cross examination it mustfollow that the evidence tendered on that issue ought to beaccepted.” This judgment was cited with approval in BobbyMathew vs. State of Kamataka[5]
Applying the principles laid down in the above judicialdecision, I may express the following view. Failure tosuggest the defence of alibi to the prosecution witnesses whoimplicated the accused, indicates that it was a false one.Considering all these matters I am of the opinion that thedefence of alibi raised by the 3rd accused appellant is anafterthought.
In evaluating a dock statement the Trial Judge mustconsider the following principles:
(1) If the dock statement is believed it must be acted upon.
CA
Gunasiri, Jayarathna Silva, Gnanasiri vs. Republic of Sri Lanka
(Sisira De Abrew, J.)
47
If the dock statement creates a reasonable doubt in theprosecution case the defence must succeed
Dock statement of one accused person should not beused against the other persons. Vide Kularatne vs. theQueen(6)
The learned Trial Judge in this case has not compliedwith the 1st principle stated above. I have earlier expressed theview that the defence of alibi raised by the 3rd accused is anafterthought. I therefore hold that the failure to comply withthe 1st principle stated above by the learned trial Judge hasnot caused prejudice to the accused appellant. The learnedtrial Judge, at page 283 of the brief, has complied with the 2ndprinciple stated above. The learned trial Judge has not usedthe dock statement of the 3rd accused appellant against theothers. For the above reasons, I reject the submission madeby the learned counsel for the 3rd accused appellant as thereis no merit in it. I would like to make the following observationin this case. It is unfortunate that the trial Judge has taken2 years to hear and conclude this case although it couldhave been concluded within 7 days. This kind of sloppyconduct will result in erosion of public confidence in thejudicial system of this country. Criminal Trials must be heardon a day to day basis. Justice demands the adoption of thesaid procedure by the Judges in lower Courts. The adoptionof the said procedure will retain public confidence in thejudicial system and help both the trial judge and counsel in thedischarge of their duties.
For the aforementioned reasons I hold that there is nomerit in this appeal. I therefore upholding the judgment,conviction and the sentence of the learned trial judge,dismiss these appeals as devoid of merit.
ABEYRATHNE, J. -1 agree.
Appeals dismissed.