IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.

In the matter of an Appeal in terms of Article 331(1) of the Code of Criminal Procedure Act No. 15 of 1979 read with Article 138(1) of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Hetti Arachchilage Sanjeewa Kumara Second Accused-Appellant Court of Appeal No: Vs.

CA/HCC/221/2016 The Hon. Attorney General High Court of Chilaw: Attorney General’s Department HC/200/05 Colombo 12 Respondent Before : Menaka Wijesundera J.

K.M.G.H Kulatunga J.

Counsel : Tenny Fernando for the Accused-Appellant.

Dishna Warnakula, DSG for the State.

Argued on : 16.10.2024 Decided on : 28.11.2024 MENAKA WIJESUNDERA J.

The instant appeal has been filed to set aside the judgement dated, 12.10.2016 of the High Court of Chilaw.

The accused appellant has been indicted under section 383, two charges under section 296, and in the alternative section 394 of the Penal Code.

The accused-appellant hereinafter referred to as the appellant has pleaded not guilty and the trial has proceeded against him. Thereafter, upon the conclusion of the trial the learned High Court Judge has said that it can be presumed that the appellant has committed the offences referred to in charges one, two, three and four of the indictment (page 443 of the brief).

Thereafter, he had convicted the appellant for charges number 2, 3 and 4 only and had said that charge number 1 is in the alternative to charge number 2 and charge number 5 is in the alternative to charge number 4. Therefore, he has not pronounced any sentence or conviction on charges 1 and 5.

But this I find to be erroneous because charge number 1 is not the alternative charge of charge number 2 because charge number 2 is actually the aggravated form of charge number 1.

But they both can be in one indictment under section 175 of the Code of Criminal Procedure Act.

At this point I wish to consider as to what the learned trial judge had meant by presuming (at page 443 and 439 of the brief) that the appellant has committed the offences under charges 1, 2, 3 and 4. The meaning of the term “presume”, according to the Black’s Law Dictionary 9^th edition page 1304, is that “to assume beforehand; to suppose to be true in the absence of proof.” Therefore, the learned trial judge cannot by all means presume after considering the evidence that the appellant is guilty of any offence but what he is required to do is to decide on his guilt or innocence, because as defined in the Black’s Law dictionary, presuming is something before proof or assuming beforehand. But in the instant matter the trial judge had said so after analyzing the evidence of the prosecution and the defense of the appellant.

Therefore, it is the opinion of this Court that the statement at page 439 and 443 of the brief by the trial judge is erroneous and illegal.

The standard of proof for a criminal case is beyond a reasonable doubt, which is engraved in our law.

In the case of SC Appeal 208/2012 decided on 22^nd January 2021 by Yasantha Kodagoda PC, J, in which the effect and the impact of the principle of reasonable doubt , was stated thus:-

“The principle that the prosecution must prove its case beyond reasonable doubt and the accused is entitled to an acquittal if there exists a reasonable doubt has been engraved in the criminal justice system of this country and in the rest of the common law world. That is to ensure that only those actually guilty of having committed crimes are convicted and the innocent are acquitted. Thus, the application of this principle should cause the advancement of the primary objective of criminal justice and not frustrate it.”

In the instant matter we find that the trial judge has failed to say the standard of proof he applied in deciding in the instant case. He had merelyreferred to the evidenceof both parties and presumed ( in his own words ) with regard to the guilt of the appellant.

In the same above mentioned judgement by Justice Yasantha Kodagoda his lordship