1. CA 38/2013
Decided on – 24/03/2017
Before – P.R. Walgama, J
K.K. Wickramasinghe, J
Murder; Dying declaration
Counsel for the Accused Appellant contended that the conviction cannot be sustained as the witnesses who testified had given different statements as to the dying declaration.
Held that, the defence had not suggested that the deceased had not made a dying declaration. Then the fact remains that the deceased did make a declaration wherein the name of the Accused Appellant had transpired. Therefore evidence of the above witnesses remained unimpeached as to the material particulars. Further, there is no allegation of concoction of the genesis or the origin of the alleged incident. The statements of the witnesses were spontaneous.
Thus taking overall view of the matter, we areof the considered opinion that the finding ofguilt recorded against the Accused - Appellant bythe Learned High Court Judge is unexceptionable and does not warrant any interference.
Appealis dismissed.
2. CA 73/2013
Decided on – 17/03/2017
Before – P.R. Walgama, J
K.K. Wickramasinghe, J
Murder; Section 48 of the Judicature Act
The partly heard trial had been transferred from High Court of Kandy to High Court of NuwaraEliya. The contention of the counsel for the Accused Appellant was that the learned trial judge of High Court of NuwaraEliya failed to properly adopt the proceedings recorded at the High Court of Kandy and also there is no statutory provision to adopt proceedings of one court by another court.
Held that the Legislature has notcontemplated of a situation of this nature before. This situation has arisendue to the expansion of the Court structure.In the abovesetting it is the duty of court to be mindful andobserve the rules of a fair trial and afford an opportunityto the Accused to be heard.
Accused Appellant was given an opportunity either to consentto adopt the proceedings and continue with the trialor to make an application to start the case de novo. Preliminaryobjection raised by the counsel for the Accused Appellanthas no merit and thus it is over ruled.
3. CA 104/2010
Decided on – 10/03/2017
Before – DeepaliWijesundara, J
L.U. Jayasuriya, J
Murder; section 296 read with section 32 of the Penal Code; only 2nd accused out of three accused was convicted for culpable homicide not amounting to murder. The other two were acquitted.
Main eye witness identified the 1st accused who was holding a sharp pointed instrument. According to him the 2nd and 3rd accused were holding poles. Out of 7 injuries found on the body of the deceased, the fatal injury had been caused by a sharp instrument. As per the evidence at the trial, the only person who carried a sharp instrument was the 1st accused.
Held that,without convicting the first accused who was holding a sharpinstrument the second accused appellant cannot be convicted for a lesseroffence on the basis of participatory presence. Appeal allowed.
4. CA 196/2008
Decided on – 17/03/2017
Before – P.R. Walgama, J
K.K. Wickramasinghe, J
Section 19 (b) and 19 (c) of the Bribery Act; Section 283 and Section 436 of the Code of Criminal Procedure; No date was mentioned in the judgment where the learned Trial Judge had signed; Defective charges in the indictment; evaluation of the evidence of witnesses
Held that, date of the judgment very clearly typed at the beginning of the judgment and the journal entry of the learned Trial Judge also clearly indicate the judgment was delivered on the date mentioned in the judgment.Therefore the mere fact that the judgment was not dated soon after the signature was placed does not make this judgment invalid by that omission alone.
The learned Trial Judge hasrejected the defense on the basis of the defense version not passing the test of probability. The Trial judge had the opportunity to observe the demeanor and deportment of theAppellant. Hence the Court's finding that the defense cannot be given any credence cannot befound fault with.
Further held that any irregularity in the charges would not beconsidered material if such irregularity has not occasioned a failure of Justice.Appellant has opted to give evidence on oath there isnothing to show that the appellant misunderstood the charges against him and was in any wayprejudiced in presenting his defense. Therefore that such irregularity if at all is curable.
Appeal dismissed.
5. CA 253 / 2010
Decided on – 03/03/2017
Before – VijithMalalgoda, PC J (P/ CA)
H.C.J. Madawala, J
Section 19 C and 21 C of the Bribery Act; Section 303(1) of the Code of Criminal Procedure Act; Sentencing policy of the court
Counsel for the Appellant limited his argument for a reduction of sentence on the basis that a 6 years RI has been imposed on him where the maximum sentence was 7 years, 21 years have lapsed since the date of offence and poor health condition of the appellant.
Held that, When considering the Mitigatory Factors as against the Aggravating Factors, there is a duty cast uponthe trial judge to compare the Mitigatory Factors as against the Aggravating Factors and give areasonable consideration compared to the enhancement given after considering the AggravatingFactors.Even though the Learned TrialJudge had referred to the fact that the accused-appellant had no previous convictions and has amedical history which needs attention, there is no proof of considering them as Mitigatory Factors bythe Learned Trial Judge when imposing the sentence.
Sentence varied.
6. CA 157-158/ 2013
Decided on – 01/03/2017
Before – Vijith Malalgoda, PC J (P/CA)
S. Devika de Livera Tennakoon, J
149 counts under Emergency Regulation; Causing mischief, death and injuries; Circumstantial evidence; Criminal Conspiracy
Main ground of appeal was that there was no sufficient evidence placed by the prosecution against the accused appellant to convict him for the charges leveled against him.
Held that, the fact that the 2nd accused to the indictment was acquitted after trial was not a ground for the others to be acquitted for the charge of conspiracy, if there was sufficient material to establish the criminal liability of the other three accused.
It is the duty of the prosecution when establishing the charges in the indictment on circumstantial evidence, to place evidence before court, when taken together must
irresistibly points that the only inference that could be arrived is that the three accused along with others unknown to the prosecution, committed those offences.
Further held that when the prosecution had led strong evidence suggestive of the above affences, the accused appellant before this court, with the above damning evidence led against him, did not made any attempt to explain the circumstances under which the said events took place. The failure by the accused-appellant to give an explanation though not be treated as equivalent to an admission of the case against him but may add considerably to the weight of the latter.
Appeal dismissed.
7. CA 163/2015
Decided on – 02/03/2017
Before – P.R. Walgama, J
S. Devika de Livera Tennakoon, J
Section 296 of the Penal Code; eye witnesses; contradictions and omissions in the evidence of prosecution witnesses
Held that considering the nature of the omissions and contradictions discussed above this court is of the view that they do in fact go to the root of this case and serious doubt is created by the omissions and contradictions of PWI and PW2 the only eye witnesses in the instant case.
Further held that the PWI and PW2 are at a variance when stating the time on which the incident occurred, a discrepancy which again goes to the root of the instant case. This Court finds that the prosecution has failed to establish a key element in the narrative that led to the death of the deceased by not adequately establishing the time at which the incident occurred.
The learned High Court Judge had erred in law by not giving due regard to the omissions and contradictions as discussed above and further that the learned trial Judge has misdirected herself in law by concluding on the guilt of the Appellant without first evaluating the dock statement.
Appeal allowed.
8. CA/PHC/APN 67/2015
Decided on – 09/03/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
section 25 (1) of the Debt Recovery (Special Provisions) Act No.2 of 1990
Petitioner raised preliminary objections on the maintainability of the action instituted by the Respondent in the Magistrate’s court which were dismissed by the learned Magistrate and learned High Court judge.
The Petitioner's contentions were,
· that the board resolution limits the authority of the representative to file an action on the contract and not extended to file action on the dishonored check.
· there is no consideration when filing the action in relation of the cheque
· whether there is a double jeopardy
Held that,
· if the Board of Directors intended to limit the action to a civil remedy on the contract, will not authorize him to file action and appear in a criminal Court. Authorizing him to file action and appear in criminal Court itself explain that the intention of the Board of Directors is to file action in the criminal Court against the Petitioner.
· The consideration at the time of issuing the cheque was the part payment of the money due in the lease agreement. Therefore there cannot be said that there is no consideration for the cheque.
· Civil liability and the criminal liability are to distinct liabilities. A person's civil liability does not relieve him from his criminal liability and vice versa.
9. CA(MC Revision) 17/2016
Decided on – 02/03/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
Section 370 of the Code of Criminal Procedure Act; Difference between an inquirer and a Magistrate; Difference between the cause of death and apparent cause of death;
The counsel for the Petitioner contended that the learned Magistrate had failed to keep herself within the scope of Chapter xxx of the Code of Criminal Procedure Act No. 15 of 1979. Thus, it is the complaint of the learned counsel for the Petitioner that the learned Magistrate had acted in excess of jurisdiction.
The counsel for the Respondent submitted that the inquest proceedings cannot be challenged by way of a revision application.
Held that,
· according to section 370(2) the inquirer, once the report under section 370( 1) has been drawn up shall sign the said report and shall forthwith forward it to the nearest Magistrate. It is at this moment that the role of the Magistrate begins. According to section 370 (3), the Magistrate shall take proceedings under Chapter XIV and XV, if the report or other material before him discloses a reasonable suspicion that a crime has been committed.
· A verdict returned at the inquest of proceedings cannot be challenged in a revision application. Further the inquirer conducting an inquest performs more an administrative function thus his
decision in an inquest proceedings is a decision made in the course of such function and not a judicial decision made by a Magistrate.
· the fact that the petitioner has not pleaded any exceptional circumstances cannot and should not stop this court in exercising the revisionary powers the law has vested in it, in case this
Court finds the impugned order to be illegal and thus, would be having far reaching consequences.
· When considering the totality of the circumstances emerged in this case, it is the view of this court that it has not become really necessary for the Magistrate to come to a finding whether some witnesses have deliberately given false evidence. It has also not become necessary to decide the exact manner in which the shooting had occurred at this stage. This is so in view
of the fact that the function of the learned Magistrate at this stage is only to ascertain whether the report or other material before him discloses reasonable suspicion that a crime has been committed. If the learned Magistrate is satisfied that such report discloses a reasonable suspicion that a crime has been committed, the next course of action which is open to him is to take proceedings under chapter XIV and XV.
· Therefore, the impugned conclusion that there is no offence punishable under section 296 of the Penal Code becomes a premature conclusion arrived at without consideration of any such possible revelations of the post-mortem report. It would not be in the best interest of justice to make such pre mature conclusions at such preliminary stages of such proceedings in rather desperation.
Therefore, acting in revision, we set aside the above conclusions arrived at by the learned Magistrate.
10. CA Bail 09, 10, 11 / 2016
Decided on - 31/03/2017
Before – Deepali Wijesundara, J
L.U. Jayasuriya, J
Section 8 and 9 of Assistance to and Protection of Victims of Crime and Witness Act, No 4
of 2015 ; Threatening the witnesses
Held that, when suspects are produced before the Magistrate's Court under the provisions of the said act the Magistrate is duty bound to see whether the police have abused the provisions of the said Act.
Further the Magistrate should ascertain whether the facts placed before him falls within sec. 81 of the Code of Criminal Procedure Act where the provision is in place to bind over the parties produced before him. After considering the facts placed before the Magistrate, if the magistrate is of the view that a particular suspect has violated the bail conditions, he should proceed to cancel the bail order and remanded the suspect. Such a suspect should not be remanded under the provisions of Act No. 04 of 2015.
11. CA 20 / 2014
Decided on - 21/03/2017
Before – P.R. Walgama, J
K.K. Wickramasinghe, J
Murder
Contention of the counsel for the Accused Appellant was that the eye witness’s evidence is contrary to the medical evidence.
Held that, where the expert evidence is obscure and oscillating it is not proper to discredit the testimony of the eye witness on such uncertain evidence. Although there are contradictions in the ballistics and medical reports if there is reliable ocular evidence the court should act upon such evidence.
12. CA 68 / 2008
Decided on - 30/03/2017
Before – Deepali Wijesundara, J
L.U. Jayasuriya, J
Murder; eye witness; Identification; Turnbull principles; Section 145 of the Evidence Ordinance; Motive
Held that, the Turnbull Principles will not apply to the instant case as the Appellant was a known party and the deceased's house was illuminated in the night when the shooting took place.
When the witness was subjected to cross-examination, the entire statement made to the Police by her was marked and produced by the defence as "V2" which is technically illegal.
There is no burden cast upon the prosecution to prove the motive in criminal case as in some instances, the motive is only known to the accused.
13. CA 76/2015
Decided on – 24/03/2017
Before – P.R. Walgama, J
K.K. Wickramasinghe, J
Section 365(b)(2)(b); Trial in absentia; Section 331(1) of the Code of Criminal Procedure Act
Petition of Appeal has been filed 13 months after the order under 241(3) of the Code of Criminal Procedure Act
Held that, the Court of Appeal is empowered to exercise its discretion to have recourse to the revisionary jurisdiction to review an order made under the Section 241(3) of the Code of Criminal Procedure Act.
Before delving on the merits of the petition of appeal, the Appellate court should deal with the undue delay and contumacious conduct of the Accused - Appellant. The Accused - Appellant that he had appeared in the Magistrate Court in the Non summary inquiry, and he was on bail. He was aware of the matter in hand. He and his family has sold the property at Anuradhapura and moved to Colombo. He has never informed court of changing his place of abode. The cumulative effect of these factors will only establish his contumacious behavior, of the Accused - Appellant.
Appeal dismissed.
14. CA 84 / 2009
Decided on - 31/03/2017
Before – Deepali Wijesundara, J
L.U. Jayasuriya, J
Section 364(2)(e) and Section 296 of the Penal Code; Circumstantial evidence; Time of death;
The Judicial Medical Officer in his evidence has stated that he could not say the exact time the victim was killed.
Held that, this is a case where the Appellant has been convicted on circumstantial
evidence. In such a case, the time factor is very important. The prosecution has
failed to ascertain the probable time of death from the expert witness. The prosecution has failed to rule-out the possibility of a third party committing the said offence.
Appeal allowed.
15. CA 118 / 2008
Decided on - 07/03/2017
Before – Deepali Wijesundara, J
L.U. Jayasuriya, J
Murder; dying declaration; Cumulative provocation
Counsel for the Accused Appellant submitted that the deceased was not in a position to make a dying declaration and State has failed to prove by the evidence of the Judicial Medical Officer whether the deceased was in a position to speak.
Held that, the above position of the Appellant was never suggested to the witnesses.
Appellant cannot take up the defence of cumulative provocation since he has not taken up the said defence in the trial court. Appeal dismissed.
16. CA 125 / 2004
Decided on- 24/03/2017
Before: Vijith K. Malalgoda PC J (PICA) &
S. Devika de. Livera Tennakoon J
Murder; Circumstantial evidence; Evidence of accomplices; Motive; 27 recovery
Learned Counsel for the appellant submitted while dealing with the evidence regarding the discovery of the body, that the judges of the High Court at Bar erred in law in attributing more than the knowledge of its whereabouts.
Held that when all these matters are taken together, it is clear that the prosecution had managed to establish a strong motive for the accused-appellant to kill the 1st deceased Punchirala.
When considering the material with regard to the location the two bodies were found, at a depth of about 170 feet in a precipice, it is clear that the said bodies couldn't have been recovered unless the person who provided the said information had a special knowledge with regard to the place from where the bodies were recovered.
The evidence given by the two accomplice witnesses had been corroborated by the independent evidence and therefore no reason to reject the evidence given by the said witnesses.
Appeal dismissed.
17. CA 156 / 2005
Decided on - 27/03/2017
Before - M.M.A.Gaffoor, J. &
K. K. Wickramasinghe, J.
Section 354 and 364(2)(e) of the Penal Code;
Held that it is evident that the prosectrix was carrying on with the appellant over a period of time and thereafter eloped with him to Embilipitiya. According to medical evidence, the prosecutrix had sexual intercourse for a period of time and that confirms the version of the prosecutrix. There is neither contradictions nor omissions marked in the evidence of the prosecutrix. She had no opportunity to make a complaint to the police and as soon as she got the opportunity she has made a statement to the police. Though the appellant mentioned in his doc statement that the prosecutrix was raped by her mother's paramour, it was never put to the witness in her cross examination or even the fact that her mother was carrying on with a paramour.
No other conclusion could reach by the Learned High Court Judge other than convicting the Accused Appellant for both charges leveled against him.
18. CA 186 / 2010
Decided on - 24/03/2017
Before – Deepali Wijesundara, J
L.U. Jayasuriya, J
Murder; Pre-meditation; self-defence;
Held that, no explanation was forthcoming from the Appellant as to
which led the deceased to run towards the home. Further, there is no evidence to suggest that the Appellant exercised his right of private defence. We find that there is no evidence on the marital disputes between the Appellant and the deceased.
We hold that shooting with an automatic weapon shows the intention of the Appellant.
Appeal dismissed.
19. CA 206/2013
Decided on – 17/03/2017
Before – P.R.Walgama, J
S. Devika de L. Tennakoon, J
Section 4 of the Public Properties Act No. 12 of 1982; Section 22(1) and 22(3) of the Firearms Ordinance ; Section 2(I)(b) of the Offensive Weapons Act
The pistol allegedly used by the 1st Accused - Appellant was not produced at the trial court. It is also admitted by the prosecution that the said gun was missing before it was sent to the Government Analyst Department for examination.
Held that the identity of the accused and the fact that the Accused - Appellants used a pistol to threaten the complainant to rob the Bank has been established by cogent evidence. Accused - Appellants were attached to the Ganemulla Army Camp and the alleged gun has been removed from the armoury of the above camp.
If court may require the production of the material object for inspection, and that nonproduction of a material object is not necessarily fatal to a conviction.
20. CA 336/ 2007
Decided on – 17/03/2017
Before – Deepali Wijesundara, J
L.U. Jayasuriya, J
Murder; Circumstantial evidence
The grounds of Appeal taken up by the learned Counsel for the Appellant were that the High Court Judge misdirected himself on critical issues of facts, failed to assess the testimonial trustworthiness of the witnesses and misapplied the Allenborough Dictum.
Held that the witnesses are independent witnesses and that they did not have any reason to falsely implicate the Appellant. The prosecution has presented a strong prima facie case and the said finding of the learned High Court Judge is correct. There had been some incident between the Appellant and the deceased over some monetary transaction and this shows the motive and the attack was indeed premeditated and a preplanned act.
Appeal dismissed.
21. CA 343/2007
Decided on – 10/03/2017
Before – Deepali Wijesundara, J
L.U. Jayasuriya, J
Murder; eye witnesses
Counsel for the Appellant argued that the dock statement of the 1st Accused-Appellant was not analyzed by the learned High Court Judge.
Held that the Appellant has not referred to the incident in his evidence although the eye-witnesses have categorically stated that they witnessed the attack which resulted in the murder.
Appeal dismissed.
22. CA PHC 31/2010
Decided on – 31/03/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
Section 4(2) of the Butchers ordinance and section 2( 1) of the Cruelty to Animal Act; inquiry in relation to the cattle
Held that there is no provision in law to confiscate cattle under Animal Act, Cruelty to Animals Act or Butchers ordinance. The purpose of transporting cattle is not a material fact. The question is the way of transporting them. Whether it is with a valid permit issued by the relevant authority or not and whether the transportation is done in a cruel manner. The Accused were punished for violating the law in transporting the cattle. They cannot be burdened with an additional punishment of forfeiture of the cattle considering the purpose of transporting them. Provisions in laws relating transporting cattle to confiscate them.
The Court cannot utilize the inherent power of the Court granted under section 7 of the Criminal Procedure Code to impose an additional financial burden to an accused or in that case to any person, which was not provided by law. Appeal allowed.
23. CA PHC 119/2014
Decided on – 03/03/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
Animals Act and Prevention of Cruelty to the Animals Ordinance; Inquiry with regard to the vehicle
The learned Magistrate after inquiry confiscated the vehicle.
Held that the Appellant has failed to establish that he has taken all precautions to prevent the vehicle being used for illegal purposes and that he had no knowledge of the vehicle being used for the commission of this offence.
Appeal dismissed.
24. CA PHC 143/2014
Decided on – 07/03/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
section 403 and Section 459 of the Penal Code; forged deed
Held that section 403 of the Penal code contains a mandatory term of fine. In imposing a sentence the Court has to consider the conduct of the Accused Respondent in relation to the offence committed by him, such as, the facts that he has breached the trust placed on him by his own sister, the amount of planning put into commit the offence, and the time he has taken to plead guilty to the offence. He was benefited by committing this crime and enjoyed the fruits of the crime for a long time.
Sentence varied.
25. CA PHC APN 48 / 2016
Decided on – 31/03/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
Bail; Section 380 and 383 of the Penal Code; Locus standi
Accused had been initially enlarged on bail but later learned High Court Judge cancelled the existing order as the Accused had 13 previous convictions and pending cases. Mother of the accused invoked the revisionary jurisdiction.
Held that, the mother of the Accused has no locus standi to prefer this revision application on behalf of the son of the Accused.
26. CA PHC APN 92 / 2016
Decided on –31/03/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
Bail; illegal transport of Cannabis indica in weight of 40 kilos and 192 grams; section 83(1) of the Poisons, Opium and Dangerous Drugs Ordinance.
Wife of the suspect has preferred the application for bail.
Held that the Petitioner has no locus standi to make this application since she has not tendered her marriage certificate and has not tendered any valid proof that she is an aggrieved party. Further there are no exceptional circumstances pleaded in the petition.
27. CA PHC APN 144 / 2016
Decided on –09/03/2017
Before – H.C.J. Madawala, J
L.T.B. Dehideniya, J
Inquiry under section 431 of the Code of Criminal Procedure in respect of elephants in question; Locus standi of the Intervenient-Petitioners
Held that the Intervenient-Petitioners must show that they have a sufficient interest in the matters to which the revision application relates to. This application had been filed by the Intervenient-Appellants who were not parties to the High Court case and is not an aggrieved party. As such the Intervenient- Appellants do not have any locus standi to make this application before this court. Further there is no exceptional circumstances pleaded in this application of the Intervenient-Petitioners.
Application dismissed.
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