KRISHNAKUMAR

Vs.

ATTORNEY GENERAL

COURT OF APPEAL
FERNANDO, J. (P/CA)
ABAYAKOON, J.
CA/HCC/86/2019
HC/NE/11/2012
JULY 8, 2021

Criminal Law-Murder-Penal Code, sections 298, section 294 Exception 1-Dying declaration-Grave and sudden provocation-Judicature Act, section 48-Adoption of evidence

The accused was convicted of murder and sentenced to death by the High Court based on the circumstantial evidence and the dying declarations of the deceased. He appealed to the Court of Appeal on two grounds: (a) the High Court judge who delivered the judgment failed to adopt the evidence led before his predecessors; and (b) the High Court judge failed to consider the evidence on grave and sudden provocation of the accused arising from the dying declarations of the deceased.

Held:

1. The plain reading of section 48 of the Judicature Act as amended by Act No. 27 of 1999 is very clear as to the intention of the legislature. The intention is to conclude a trial commenced before another judge as expeditiously as possible, without causing prejudice to the accused. The trial judge can continue with the trial from where it was stopped, but the proviso to section 48

provides an opportunity for an accused in a criminal prosecution to demand that witnesses be re-summoned, ensuring the right of an accused to a fair trial. In the instant action, the accused has been represented throughout the trial by the same counsel but no such application was made to court. Instead the accused agreed to the continuation of the trial before the succeeding High Court judge.

2. The accused never took up the defence of grave and sudden provocation before the trial judge and his defence was a total denial of the incident. For the trial judge to consider whether there was grave and sudden provocation, there must be evidence either by the prosecution or the defence. In this case there was no such evidence. Hence there was no basis for the trial judge to consider evidence under section 294 Exception 1 of the Penal Code.

Cases referred to:

1. K.D.J. Perera v. The King (1951) 53 NLR 193 at 201
2. Kulanthaivel Ramesh alias Vishvalingam Sasikumar v. Attorney General (CA/APPEAL/16/2013, CA Minutes of 27.03.2015) at 7
3. RM. Karunaratne v. Attorney General (CA/APPEAL/181/2009, CA Minutes of 21.11.2011)

APPEAL from the Judgment of the High Court of Nuwara Eliya.

lndika Mallawarachchi for the Accused-Appellant.

Chethiya Gunasekara, A.S.G., for the Respondent.


August 2, 2021

ABAYAKOON, J.

cur. adv. vult.

This is an appeal by the defendant-appellant (hereinafter referred to as the appellant) on being aggrieved by the conviction and the sentence of him by the learned High Court Judge of Nuwaraeliya.

The appellant was indicted before the High Court of Nuwaraeliya for committing the offence of murder of one Kandasamy Sellamani, punishable under section 296 of the Penal Code.

After trial without a jury, the appellant was found guilty as charged and was sentenced to death.

Facts that led to the death of the deceased Sellamani as established by way of evidence at the trial are briefly as follows;

The deceased was living with the appellant in an illicit relationship and they had two children by the union. The appellant was a married man whose wife was employed overseas. According to the evidence of PW- 01 who was the father of the deceased, his daughter and the appellant lived in matrimony in a house owned by him, which was situated near his house in the tea estate where they lived. According to him, there were constant quarrels between them due to the drunkenness of the appellant. It was his evidence that on the day of the incident where the deceased suffered burn injuries, namely, on 19-08-2009, his daughter came to his house in a state of shock at around 11.00 pm with the youngest child of about one year old and informed that the appellant came home drunk and assaulted her. About fiftee