PUNYAMOORTHI

Vs.

ATTORNEY GENERAL

COURT OF APPEAL
GOONERATNE, J.
FERNANDO, J.
CA/218/2016
HC/KEGALLE/1786/2002
FEBRUARY 21, 2019

Criminal law-Penal Code, section 296--Evidence Ordinance, section 33-Code of Criminal Procedure Act, No. 15 of 1979, section 151- Admissibility of depositions of witnesses deceased at the time of the trial-Re-trial

The accused and another (deceased at the time of trial) were convicted under section 296 of the Penal Code and sentenced to death by the High Court. The only evidence that the prosecution relied on to prove its case was the deposition of Sellamuttu (PW2), which was given during the non-summary inquiry. PW2 was deceased at the time of the trial and his deposition was led in evidence in terms of section 33 of the Evidence Ordinance.

A main ground of appeal was on the procedure adopted by the High Court in admitting the deposition of PW2, as there was no evidence on record that the relevant facts deposed to by PW2 were led in evidence before the trial judge.

Held:

1. The proper procedure for admitting the deposition of a deceased person is by producing a certified copy of the deposition through a witness having custody of the record of the non-summary proceedings, and the relevant facts deposed to by the deceased person should be led in evidence before the trial judge for his consideration in accordance with the law.

2. Although the deposition of PW2 was admitted in evidence, the relevant facts deposed to by PW2 were not led in evidence before the trial judge, which is contrary to the applicable law in admitting witness depositions under section 33 of the Evidence Ordinance.

3. There is no indication in the judgment that the trial judge was mindful of the infirmities in the deposition of PW2 before admitting the same.

4. It is not appropriate to send the case back for re-trial as the appellant has spent a good part of his life in court in pursuance of justice, and the court should do justice by all the parties.

Cases referred to:

1. Stephen and others v. The Queen 67 CLW 48
2. Sheela Sinharage v. Attorney General [1985] 1 Sri LR 1
3. Regina v. D.M. Arthur Perera et al (1956) 57 NLR 313 at 326

APPEAL from the Judgment of the High Court of Kegalle.

Nayantha Wijesundara for the Accused-Appellant.

Madhawa Tennakoon, S.S.C., for the Respondent.

cur. adv. vult.

March 26, 2019

GOONERATNE, J.

The 1st Accused-Appellant, (hereinafter referred to as the Appellant) was indicted together with the 2nd Accused, Thyagaraja, (deceased at the time of trial) in the High Court of Kegalle, under Section 296 of the Penal Code for causing the death of Selwamuttu Pubalan, (hereinafter referred to as the deceased) and upon conviction the Appellant was sentenced to death.

The case for the prosecution entirely rests on circumstantial evidence.

Sellamuttu, (PW1), the sister of the deceased, states that when she was at the common water tap, close to her house, she heard the 2nd Accused requesting the deceased to come to his house. Moments later Thamil Selvam, the daughter of the 2nd Accused (Thiyagaraja) had cried for help, and when she entered the house of the 2nd Accused, she had seen the deceased lying on the floor. At that point, the Appellant who was inside

the house of the 2nd Accused had thrown aside an axe which was in his hand and had run away. She also stated that, the 2nd Accused told her that the Appellant attacked the deceased. The Appellant and the 2nd Accused Thyagaraja were brothers who lived in adjoining line rooms which were interconnected. However, in cross-examination, PWI claimed that she did not see the Appellant holding the axe or throwing it away and it was Thiyagaraja who told her about it.

Palaniandi Nadaraja (PW7), in his evidence stated that when he came to the place where the deceased was attacked, Thamil Selvam had told him that the Appellant had attacked the deceased. However, Thamil Selvam was not called to give evidence by the prosecuti