VISHAWANADAN AND OTHERS

VISHAWANADAN AND OTHERS

VS.

ATTORNEY GENERAL

SUPREME COURT
DE ABREW, J.
DEHIDENIYA, J.
SURASENA, J.
SC/APPEAL/15/2018
SC/SPL/120/2017
CA/APPEAL/59/2011
HC RATHNAPURA 169/2017
JULY 30, 2020

Murder-Belated statement by witness-Alibi-Proof of alibi-Code of Criminal Procedure Act, proviso to section 334(1)-Non direction and misdirection in law and fact-No substantial miscarriage of justice-Sustainability of the judgment

The accused-appellants were charged with murder under section 296 of the Penal Code. The alleged eyewitness made a belated statement to the police. The defence taken was a plea of alibi. The High Court inter alia concluded that the defence was not proved and the accused were convicted of murder. On appeal, the Court of Appeal affirmed the conviction and the accused appealed to the Supreme Court.

Held :

1. A witness need not be disbelieved on the sole basis of having made a belated statement to the police if the delay can be explained.

2. When an alibi is pleaded by the accused, there is no burden on the accused to prove it. The burden is on the prosecution to establish the accused's presence at the scene of the offence. It is a misdirection in law to conclude that the accused did not prove the alibi.

3. If the accused takes up a plea of alibi, he shall put it to the witnesses of the prosecution during cross-examination. If the plea of alibi is made for the first time in the dock statement, the court can reject it as false.

4. Even if there are misdirections and non-directions in law and fact in the judgment of the trial court, which may be considered in favour of the accused on appeal, the conviction can nevertheless be sustained if there has been no substantial miscarriage of justice -proviso to section 334(1) of the Code of Criminal Procedure Act.

5. If the death of the deceased is committed in a sudden fight and is not premeditated, the accused shall not be convicted for murder but for culpable homicide not amounting to murder.

Cases referred to :

1. Sumanasena v. Attorney General (1999) 3 Sri LR 137 at 140
2. Ajith Samarakoon v. The Republic [2004] 2 Sri LR 209 at 220
3. Banda and others v. Attorney General [1999] 3 Sri LR 169
4. Punchi Banda v. The State 76 NLR 293 at 308
5. Sarwan Singh v. State of Punjab [2002] AIR SC (iii) 3652 at 3656
6. Bobby Mathew v. State of Karnataka 2004 Cr LJ Vol iii at 3003
7. MHM Lafeer v. The Queen 74 NLR 246

APPEAL from the Judgment of the Court of Appeal.

Darshan Kuruppu with Aruna Gamage for the Accused-Appellant-Petitioner-Appellants.

Dilan Ratnayake, D.S.G., for the Attorney General.

cur. adv. vult.

February 12, 2021

DE ABREW, J.

The Accused-Appellant-Petitioner-Appellants (hereinafter referred to as the Accused-Appellants) in this case were convicted of the murder of a man named Madavan Sadanandan and were sentenced to death by the judgment of the High Court dated 24.01.2011. Being aggrieved by the said conviction and the sentence, the Accused-Appellants appealed to the Court of Appeal and the Court of Appeal by its judgment dated 07.04.2017 dismissed the appeal and affirmed the conviction and the sentence. Being aggrieved by the said judgment of the Court of Appeal, the Accused-Appellants have appealed to this court. The 4th accused, at the end of the trial, was acquitted by the learned High Court Judge. This court by its order dated 12.02.2018 granted leave to appeal on

questions of law set out in paragraphs 16(i) and 16(v) of the Petition of Appeal dated 16.05.2017 which are set out below.

1. Whether their Lordships of the Court of Appeal erred in failing to evaluate the evidence in the case in its totality and failed to appreciate the same on an impartial and objective evaluation of the evidence whether there was clearly, at the very least a reasonable doubt as to the participation of the 2nd and 3rd Petitioners to the alleged offences?

2. Have their Lordships of

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