014-SLLR-SLLR-1995-2-SISIRATHUNGGE-V.-ATTORNEY-GENERAL.pdf
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[1995] 2 Sri LR.
SISIRATHUNGE
v.
ATTORNEY-GENERAL
COURT OF APPEALGUNASEKERA. J. AND YAPA, J.
A. APPLICATION 190/93
C. GAMPAHA 16/90MARCH 9. 1995
Evidence Ordinance – S(27) of the Evidence Ordinance – Murder – Evaluation ofEvidence of an adverse witness – Misdirection.
The accused was indicted for having Committed Murder. The prosecution led theevidence of 5 witnesses, the accused-appellant made a statement from the dockdenying the charge and stated that he was at Polonnaruwa at the relevant time.At the trial the wife of the deceased was treated as an adverse witness. The HighCourt convicted the accused for Murder and imposed a sentence of death.
Held:
If the Evidence of a Witness on any particular issue is demonstrablyunreliable owing to some proved or distinctly admitted inconsistence on amaterial point, his Evidence is worthless and cannot properly be taken intoconsideration at all for the purpose of deciding that issue.
Evidence relating to the discovery of the murder weapon in consequence ofa statement made under S27 has been wrongly admitted.
The trial Judge had not given adequate directions regarding theCircumstantial Evidence led.
Case referred to:
Queen v. Hethuhamy 57 NLR 255.
AN APPEAL from the Provincial High Court of Gampaha.
Dr. Ranjith Fernando with Miss Yasanthi Kumari and Miss S. Seneviratne foraccused-appellant.
P. Kumarasinghe D.S.G. with Buwaneka Aluvihara S.C. for the Attorney-General.
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March 09 1995.
D. P. S. GUNAKEKERA, J.
In this case the accused-appellant Munasinghe ArachchigeSisirathunga was indicted with having committed murder by causingthe death of Pediric Athukoralalage Jayasiri on 3rd March 1985. Aftertrial before a Judge and jury he was convicted of the offence by anunanimous verdict of the jury and sentenced to death. Theprosecution relied on the evidence of Premawathi, the widow of thedeceased, William Perera, a friend of the deceased, Kamalasiri, aneighbour, Sub Inspector of Police Samaraweera and the medicalevidence of Dr. Asoka Premaratne. At the end of the prosecutioncase the accused-appellant made a statement from the dockdenying the charge and stated that he was at Polonnaruwa at therelevant time.
According to the prosecution case the deceased had been livingwith his wife Premawathi in his house at Mudungoda in a colonycalled Ratupaswela. At about 7.00 or 7.15 p.m. in the evening on 3rdMarch 1985, the deceased had been in his house along with his wifePremawathi when William Perera had come there with somemedication for the deceased who had an eye ailment. When theywere talking with a bottle lamp burning in the verandah, the accusedhad come into the house armed with a sword and threatened themnot to shout. Apprehending fear that some hurt would be caused,William Perera had held the sword and dragged the accused out sideand had run away from the scene. Premawathi had run into the houseof their neighbour Kamalasiri through the rear door chased by theaccused-appellant. According to Kamalasiri’s evidence he hadnoticed Premawathie running into his house followed by the accused-appellant. Premawathi had shouted to Kamalasiri to save her. Onhearing that Kamalsiri had got out of the house and spoken to theaccused for 10 minutes and had persuaded him to leave. The bodyof the deceased had been found about 30 feet away from his housewith cut injuries. According to the medical evidence there had been 4cut injuries on the body of the deceased ranging from 4" to 5" on thehead and neck. The cause of death according to the medicalevidence was cardio respiratory failure due to shock andhaemorrhage following cut injuries of the neck. It is to be noted that
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at the trial Premawathi was treated as an adverse witness by theprosecution and had been cross-examined on the basis of theevidence she had given at the non-summary inquiry.
At the hearing of this appeal Dr. Ranjith Fernando relied on threegrounds of appeal. Firstly that the Learned Trial Judge had erred inlaw by misdirecting the jury in regard to the manner in which theyshould evaluate the evidence of the adverse witness. Secondly thatthe Learned Trial Judge had erred in law by failing to direct the juryon the infirmities affecting the evidence led under section 27 of theEvidence Ordinance and thirdly that the Learned Trial Judge haderred in law by relating the items of circumstantial evidence to thefacts and evidence to the facts and evidence in the case. In supportof the 1st submission Learned Counsel relied on the case of Queenv. Hethuhamym which held that “ If the evidence of a witness on anyparticular issue is demonstrably unreliable owing to some proved ordistinctly admitted inconsistance on a material point his evidence isworthless and cannot properly be taken into consideration at all forthe purpose of deciding that issue. It is illogical to conclude inaddition (1) that because his evidence cannot be acted upon theopposite of what he said represented the truth and (2) that as theopposite of what he said at the trial happens to be consistent with theversion given by another witness the veracity of that other witness isthereby confirmed.”
It appears from the charge that despite the fact that Premawathiewas treated as a hostile witness by the prosecution and cross-examined, that the Learned Trial Judge had directed the jury thatthey were free to accept certain portions of Premawathi’s evidenceand find corroboration for this from the evidence of other prosecutionwitnesses. Having considered this misdirection in the charge weagree with the 1st submission of Learned Counsel.
In support of the 2nd submission Learned Counsel contended thatthe evidence relating to the discovery of a sword in consequence ofa statement made under section 27 has been wrongly admitted. Inthis regard learned Counsel submitted that there were followinginfirmities:
(a) Although the sword was found that it was not marked inevidence.
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the sword that is alleged to have been found was not shown tothe witness William Perera and Kamalsiri.
that it was not shown to the medical officer who testified at the
trial.
that the wording of the portion that was marked by theprosecution to wit “zs>£>o o»eg sezrfOca »jzs” was gravelyprejudicial to the accused-appellant as it was obnoxious tosection 25 of the Evidence Ordinance.
that in any event having regard to the evidence led in the casethat it appears that this sword was not discovered by thepolice officer but had been picked up by the accused andgiven to him. On this state of evidence it could not have beenadmitted under section 27 of the Evidence Ordinance.
In any event the police officer who was shown the sword inCourt at the trial stated that what was shown was not thesword that had been recovered.
We have considered the second submission in relation to theground urged by Learned Counsel and are in agreement with him. Inregard to the 3rd submission it was Learned Counsel’s contentionthat once Premawathie’s evidence was rejected as beingunacceptable the prosecution was left with the evidence of WilliamPerera and Kamalasiri. Neither of these witnesses claimed to haveseen the act that resulted in the injuries being caused to thedeceased Jayasiri. That being so the prosecution was left with onlycertain items of circumstantial evidence, namely the evidence ofWilliam Perera that the accused came into the house of thedeceased, he was armed with a sword and the evidence of Kamalsirithat the accused was seen with a sword chasing behind Premawathi.Taking these two items of evidence and the fact there is nothing toindicate that the accused-appellant had any enmity towards thedeceased or that he uttered any threat to cause injury to him, onecannot come to the inevitable conclusion that the injuries on thedeceased were caused by the accused. This being the state of
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evidence the Learned trial Judge had given inadequate directions atpage 180 in his charge on circumstantial evidence.
Mr. D. P. Kumarasinghe DSG who appeared for the Attorney-General conceded that evidence regarding the recovery of the swordhad been wrongly admitted and the fact that Learned trial Judge haderred in directing the jury to consider the evidence of Premawathinotwithstanding the fact that she had been treated as a hostilewitness. However Learned DSG contended that a re-trial should beordered having regard to the items of circumstantial evidence in theevidence of William Perera and Kamalasiri.
We have carefully considered the evidence of William Perera andKamalasiri and are of the view that these items of circumstantialevidence arising in their evidence is insufficient to order a re-trial. Forthe reasons stated above we uphold all three submissions urged onbehalf of the accused-appellant by Learned Counsel and set asidethe conviction for murder and the sentence of death imposed on theaccused appellant and acquit him.
HECTOR YAPA, J. – I agree.
Accused acquitted.