KINIWITA

Vs.

ATTORNEY GENERAL

COURT OF APPEAL
ABEYRATNE, J.
KUMARARATNAM, J.
CA/HCC/180/18
HC KEGALLE 3015/2010
FEBRUARY 8, 2021

Criminal law-Murder-Penal Code, sections 296 and 32-Common intention-Contradictions and omissions in witness testimony-Credibility of the witness-Code of Criminal Procedure Act, No. 15 of 1979, section 439-Failure to give evidence at non-summary inquiry not a bar to testifying at the trial

The accused appellant and three others were indicted on two charges before the High Court. After trial, the appellant was convicted on the first count of murder and sentenced to death. He appealed to the Court of Appeal mainly on the ground that the evidence of the main witness for the prosecution (PW 15) is flawed.

Held:

1. The court should disregard discrepancies and contradictions which do not go to the root of the matter. If such contradictions are explicable, they do not affect the overall testimonial creditworthiness of the witness. Omissions do not stand in the same position as contradictions and discrepancies. The contradictions and omissions in the testimony of PW 15 are neither material nor vital and are of minor importance.

2. The fact that PW 15 did not give evidence at the inquest or the non-summary inquiry does not disqualify him from giving evidence at the trial. The holding of a non-summary inquiry is not to decide the guilt or innocence of the accused but only to ascertain whether there is a prima facie case to commit the accused for trial. Section 439 of the Code of Criminal Procedure provides for the summoning of any person as a witness to arrive at a "just decision".

3. The prosecution can rely on the evidence of a sole witness if it is cogent and impressive.

4. When it comes to the question of common intention, it is true that the case of each accused must be considered separately. It is obvious from the acquittal of the other accused on both counts and the appellant on the second count that the trial judge considered the case of each accused separately.

Cases referred to:

1. Wickramasuriya v. Dedoleena and others [1986] 2 Sri LR 95

2. Attorney General v. Potta Nauffer and others [2007] 2 Sri LR 144

3. Banda and others v. Attorney General [1999] 3 Sri LR 168

4. Saram v. Weera 1 NLR 95

5. The King v. Aron Appuhamy et al 51 NLR 358

6. Attorney General v. Ranmuthudewage Susantha Dhammika Rathnayake (CA/APN/43/2015, CA Minutes of 29.04.2016)

7. Wijepala v. Attorney General [2001] 1 Sri LR 46

8. King v. Asappu 50 NLR 324

APPEAL from the Judgment of the High Court of Kegalle.

lndica Mallawaratchy for the Accused-Appellant.

Sanjeewa Dissanayaka, S.S.C., for the Respondent.

cur. adv. vult.

March 10, 2021

ABEYRATNE, J.

The 1st accused appellant has preferred this appeal seeking to set aside the judgement dated 25.06.2018 of the learned High Court judge of Kegalle convicting him of murder in case No. HC 3015/2010 in the High Court of Kegalle.

The 1st accused appellant (hereinafter sometimes referred to as the appellant) along with 3 other accused were indicted for the following charges before the High Court of Kegalle.

1. That on or about the 19.06.2008 committed the offence of murder, by causing the death of one Unagolla Devage Somapala, an offence punishable under section 296 to be read with section 32 of the Penal Code.

2. That on or about the 19.06.2008 committed the offence of attempt to murder, by causing injuries to Hewayalage Kamalawathi, an offence punishable under section 300 to be read with section 32 of the Penal Code.

At the conclusion of the trial, the 1st accused appellant was convicted for murder on the first count and sentenced to death and was acquitted on count 2. The 2nd to the 4th accused were acquitted and discharged from both counts.

Being aggrieved by the said conviction and sentence the appellant has preferred the instant appeal on the following grounds of appeal.

i. Evidence of star witness PW 15 namely Dhanapala is plague