RATHNAYAKE

VS.

THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

COURT OF APPEAL
WICKREMASINGHE, J.
FERNANDO, J.
CA/HC/26/2018
HC KURUNEGALA 240/2008
JUNE 10, 26, OCTOBER 8, 2019

Criminal law-Murder-Penal Code, section 296--Alibi-Contradictions and omissions-Belated statements-Non-production of real evidence

The accused-appellant was convicted of triple murder by the High Court. On appeal the appellant inter alia contended that the High Court did not duly consider (a) the defence of alibi (b) the contradictions in the evidence of the witness (c) the belated police complaint and (d) non-production of the murder weapon.

Held :

1. The credibility of an alibi is greatly enhanced if it is set up at the time the accusation is first made and then consistently maintained. If it is taken up belatedly, the effect of the alibi will be less. A false alibi will weaken the defence case and strengthen the prosecution case. The defence of alibi was not taken up by the appellant at the non-summary stage but for the first time in his dock statement.

2. The contradictions complained of cannot be given much weight to since those contradictions do not go to the root of the case.

3. The evidence of a belated witness need not be rejected on the ground of delay alone. The court must inquire into the reasons for the delay. If the delay is plausible and justifiable, the court can act upon it. The first complaint by the widow of the first deceased was made on the day of the funeral. The delay is acceptable.

4. Non-production of a material object is not fatal to a conviction. The prosecution is entitled to lead oral evidence of a witness without producing the material object.

5. There is not sufficient evidence to convict the appellant on the third charge of murder.

Cases referred to :

1. Premasiri and another v. Republic of Sri Lanka [2012] 1 Sri LR 43
2. Sumanasena v. AG [1999] 3 Sri LR 137
3. Ajit Samarakkoon v. The Republic (Kobaigane Murder Case) [2004] 2 Sri LR 209
4. Jayatissa v. AG [2010] 1 Sri LR 279
5. Wanakku Arachchilage Gunapala v. AG [2007] 1 Sri LR 273

APPEAL from the Judgment of the High Court of Kurunegala.

Neranjan Jayasinghe for the Accused-Appellant.

Lakmali Karunanayake, D.S.G., for the Complainant-Respondent.

cur. adv. vult.

January 30, 2020

WICKREMASINGHE, J.

The Accused-Appellant was indicted in the High Court of Kurunegala on 12.02.2018 on three charges of murder. (Triple murder)

i. On or around 29.03.2004 committed the murder of Chandrasekara Mudiyanselage Dharmasinghe and thereby committed an offence punishable under Section 296 of the Penal Code.

ii. On or around 29.03.2004 committed the murder of Chandrasekara Mudiyanselage Abeyratne and thereby committed an offence punishable under Section 296 of the Penal Code.

iii. On or around 29.03.2004 committed the murder of Chandrasekara Mudiyanselage Chandana Kumara Jayaratne and thereby committed an offence punishable under Section 296 of the Penal Code.

After reading out the indictment to the Accused-Appellant, he opted for a non-jury trial. The prosecution led evidence of six witnesses including an eye witness Gnanawathi (PW1). Upon closing the prosecution case the Accused-Appellant made a dock statement and one witness Rajaguru Mudiyanselage Rohitha (ex-army officer) testified in support of the alibi taken up by the Accused-Appellant.

After trial the Accused was convicted on all three charges by the learned High Court Judge and death sentences were imposed. Being aggrieved by the aforementioned convictions and sentences, the Accused-Appellant preferred the instant appeal to this Court.

In the written submissions dated 26.06.2019, the separate grounds of appeal were not urged by the Appellant but the following infirmities were brought to the notice of court as grounds of appeal for the Accused-Appellant:-

1. Infirmities in the evidence of the sole eye witness.

1.1 Per se contradictions in her evidence in