In the Supreme Court of the Democratic Socialist Republic of Sri Lanka In the nature of an Appeal in terms of section 9 of the High Court of the Provinces (Special Provisions) Act, No. 19 of 1990 read with Article 128 of the Constitution.

1. Sarath Wijeratne Wickramasinghe Mahagedarawatta, Yatalamatta, Naagoda.

2. Bandusena Wijeratne Wickramasinghe (Deceased)

Mahagedarawatta, Yatalamatta, Naagoda.

Accused – Appellant - Appellants SC Appeal No. 87/2014 High Court Galle Appeal No. 843/2011 Magistrate’s Court Galle No. 33439 Vs.

1. Honourable Attorney-General Attorney General’s Department, Colombo 12.

Respondent - Respondent

2. Officer-in-Charge (Crime Investigations)

Police Station, Galle.

Complainant - Respondent – Respondent Before: Jayantha Jayasuriya, PC, CJ Yasantha Kodagoda, PC, J Mahinda Samayawardena, J Counsel: Dr. Sunil Abeyratne with Ms. Mihiri Kudakoluwa for the Appellants.

Ms. Suharshie Herath Jayaweera, Deputy Solicitor General for the Respondents.

Argued on: 4th August 2022 Decided on: 10th October, 2024 Yasantha Kodagoda, PC, J Introduction

1. This Judgment relates to an Appeal from a judgment of the High Court of the Provinces (Southern Province) which had exercised appellate jurisdiction in respect of a judgment of the Magistrate’s Court of Galle. Following the judgment of the Magistrate’s Court (including the Order of sentence pronounced by the learned Magistrate) being affirmed and the Appeal being dismissed, on the application of the Accused – Appellant, the High Court of the Provinces had granted Leave to Appeal to the Supreme Court on the following question of law:

“Is the Order of sentence passed following the conviction of the Accused, contrary to Article 13(6) of the Constitution?”

Background

2. Following the conduct of an investigation and the initiation of criminal proceedings against the 1st and 2nd Accused – Appellants – Appellants (hereinafter sometimes referred to as the Accused, Accused – Appellants, and as the Appellants, as the context requires), on 6th October 2005 the 2nd Respondent – Respondent instituted criminal proceedings against the Accused in the Magistrate’s Court of Galle for having committed the following offence:

“That on 5th July 1993, in Galle, prepared a forged document, namely a purported deed of transfer of title bearing No. 8431 purportedly attested by S.P. Gunawardena, Notary Public, containing the forged signature of Banduwathie Wijeratne Wickramasinghe, and afterwards having such document registered at the Land Registry of Galle, and thereby committed the offence of forgery, an offence punishable under section 457 of the Penal Code.”

3. The afore-stated charge had been preferred on the footing that the two Accused had jointly committed the offence of forgery.

4. The Accused pleaded ‘not guilty’ and the case proceeded to trial.

5. The case for the prosecution was that the 2nd Accused and 1st Accused stood against each other as the father and son. Banduwathie Wijeratne Wickramasinghe was the sister of the 2nd Accused. During the final stages of her life at a time when she was suffering from a terminal illness and was very sick, on or about 5th July 1993, the two Accused had prepared a conveyance (deed) seeking to transfer her rights to a land co- owned by Banduwathie, the 2nd Accused and another sibling which was subject to a partition action, to the 1st Accused, forged her signature on it, caused it to be attested by S.P. Gunawardena, Notary Public, and thereafter submitted the said forged deed to the Land Registry for registration. Soon after the commission of the offence, Banduwathie had passed away. The husband of Banduwathie (virtual complainant) and their son were the principal witnesses for the prosecution. These two witnesses together with the Examiner of Questioned Documents provided evidence that the purported signature on the impugned deed was not the signature of Banduwathie. The Accused denied the allegation against them, and took up the position (unsuccessfully) that Banduwathie