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2024 Supreme(SRI)(CA) 496
IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
MENAKA WIJESUNDERA, K.M.G.H. KULATUNGA, JJ
Selladhore Anoj Kumar alias Baabu. – Appellant
Versus
Hon. Attorney General – Respondent
CA/HCC/0149/2023
Amila Palliyage with Sandeepani Wijesooriya, Savani Udugampola, Lakitha Wakishta Arachchi and Subaj De Silva for the Accused-Appellant. Shanaka Wijesinghe, ASG for the Respondent.
Sentencing must align with individual culpability, allowing disparity when justified by differing circumstances of each accused.
Headnote:(A) Code of Criminal Procedure Act No. 15 of 1979 - Section 331(1) - Appeal against sentence - The appellant contends that the disparity in sentencing between him and co-accused is unfair due to differing plea outcomes. Court emphasized the principle of parity, stating identical sentences are not mandated unless culpability is similar. (Paras 9, 12, 21)
(B) Sentencing Disparity - Sentences must be proportional to individual culpability. The court explained that a guilty plea inherently yields leniency, and such disparity is permissible when justified. (Paras 12, 21)
Facts of the case:
The accused-appellant was involved in abduction and assault, alongside co-accused who pled guilty and received a lighter sentence. The 2nd accused complained about disproportionality in sentencing due to his trial.
Findings of Court:
The court found that substantial differences in actions warranted different treatment in sentencing, aligning sentences with the nature of offences committed.
Issues: The primary issues were the disparity of sentencing between the two accused and the justification of the sentences based on individual culpability.
Ratio Decidendi: The court held that disparities in sentencing can be justified based on the nature of each accused's involvement, emphasizing the accepted principle of differing sentences based on guilty pleas versus trial outcomes.
Result: The sentence of the 2nd accused-appellant was varied, reducing his prison terms while affirming fines and default terms.
Introduction
1. This appeal is preferred against the Judgment dated 08.03.2023 of the learned High Court Judge of the High Court of Ratnapura in case No. HCR/25/2019. However, when this matter is taken up for argument on 04.11.2024, the learned Counsel for the appellant, Mr. Amila Palliyage informed Court that the Appeal will be limited to the sentence only and would not pursue with the appeal against the conviction. Upon the appeal against the conviction was so abandoned, the matter was taken up for argument as regards the sentences.
2. The learned Counsel for the appellant submitted that there was a disparity of the sentence between the 2nd accused-appellant and the 1st accused.
Facts
3. The 2nd accused-appellant with another (the 1st accused) were indicted with two counts based on common intention for committing the offences of abduction of PW-1, Thyagarajah Sathyakumar punishable under Section 358 of the Penal Code and with the 2nd count of attempted murder of the said Sathyakumar punishable under Section 300 of the Penal Code. Both counts alleged that the said offences were committed along with persons unknown to the prosecution.
4. The brief facts of the incident as narrated by PW-1, Sathyakumar is as follows. PW-1 was selling wadeh near a wine shop on the particular day when the 1st Accused had come and demanded the return of Rs.1000.00 which PW-1 was not able to give it at that moment. Later on the 2nd accused-appellant had come with the 1st accused and some others, damaged the wadeh stand, assaulted and forcibly taken PW 1 Sathyakumar into a three-wheeler and then taken him to a place called Ellagewatta. The three-wheeler was driven by the 1st accused. Whilst in the three-wheeler, the 2nd accused is alleged to have assaulted and delt several blows on the head using an empty glass bottle. With the alighting of the said blows PW-1 has lost consciousness and was thus unaware as to what happened thereafter. The he had been admitted to the local hospital.
5. Then the Investigating Officer, I.P. Chandrasena has testified that a complaint was received by the Kahawatta Police and the 1st accused has surrendered and the 2nd accused was subsequently arrested.
6. During the course of the trial, certain admissions have been recorded under Section 420 of the Criminal Procedure Act in respect of the investigation. Finally, the 2nd accused has made a dock statement to the effect that on that day he happened to meet the 1st accused a friend at the Kahawatta town and the 1st accused went to obtain some money from PW- 1. The sum total of his statement is that though he was there he was not involved in any incident, and in short, he denies any involvement in the abduction or the assault. The Accused has also called another witness in support of his position.
7. The 1st accused and the 2nd accused-appellant were indicted together. Before the commencement of the trial on 10.03.2020 the 1st accused opted to plead guilty to the charges and was convicted on his own plea. Upon being so convicted, the 1st accused was sentenced as follows;
Count No. 01 – Six Months imprisonment and a fine of Rs.15,000.00 was imposed with a default term of six-month imprisonment.
Count No. 02 – Eighteen Months rigorous imprisonment was imposed and a fine of Rs. 2000 with a default term of six months was imposed.
In addition, Rs.100,000.00 compensation was awarded with a default term of one-year simple imprisonment. Both the substantive jail terms were suspended for 15 years.
8. Upon so concluding the case against the 1st accused, the trial against the 2nd accused proceeded and the learned High Court Judge found the 2nd accused guilty and convicted him for both counts. Upon hearing both parties, the 2nd accused was sentenced as follows:
For Count No. 01 – Five years rigorous imprisonment and in addition a fine of Rs. 10,000.00 with a default terms of 2 years imprisonment.
For the 2nd Count – 10 years’ imprisonment with a fine of Rs.10,000.00 and the default terms of 2 months s
