AMARASIRI

Vs.

ATTORNEY GENERAL

COURT OF APPEAL
GOONERATNE, J.
FERNANDO, J.
CA 235/2014
HC TANGALLE 18/2003
FEBRUARY 28, 2019

Penal Code, section 300-Attempted murder-Belated statement by the injured-Non-availability of the first information-Right to a fair trial Article 13(3) of the Constitution

The appellant was convicted of attempted murder and sentenced by the High Court. He appealed on the basis that inter alia the injured had made a belated statement, there had been a long delay in the investigation and the appellant had not been provided with the first information.

Held:

1. Although the injured has made a statement three days after the incident to the hospital police post, the police have found it difficult to trace the first information. The injured has been recalled to record another statement and the investigation commenced one

and half years after the incident. This long delay in carrying out the investigation has not been explained.

2. Failure to make available the first information and the Medico-Legal Report has caused prejudice to the accused in establishing his defence. This is a denial of the accused's right to a fair trial and thus is a violation of the accused's entitlement under Article 13(3) of the Constitution.

Cases referred to:

1. Wijepala v. Attorney General [2001] 1 Sri LR 46
2. Lakshami Singh v. State of Bihar AIR 1976 SC 2263

APPEAL from the Judgment of the High Court of Tangalle.

Saliya Pieris, P.C., with SusiI Wanigapura for the Accused-Appellant.

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

cur. adv. vult.

April 2, 2020

GOONERATNE, J.

The Accused-Appellant, (hereinafter referred to as the Appellant) was indicted in the High Court of Tangalle, under Section 300 of the Penal Code for the offence of attempted murder of Shanthige Keerthipala, (hereinafter referred to as the injured) and upon conviction, the Appellant was sentenced to 12 years rigorous imprisonment, a fine and compensation to be paid to the injured.

The prosecution relied on the evidence of the injured (PW2) and one other eyewitness. According to the injured (PW2), this incident took place around 7.30 PM, on a moonlit night, in the compound of the house of eyewitness Liyanarachchige Siripala (PW7). The injured was near the well, when he heard a gunshot fire, and realized, that he had sustained an injury below his knee. At this moment he had turned back and had seen the Appellant filling gun powder to a barrel of a gun he was carrying and soon thereafter had taken to his heels. According to PW7, as soon as he heard the gunshot fire, he had recognized the Appellant from the posterior, running away from the scene of the crime. The Appellant had been around 50 feet away from the witness. Both eyewitnesses had

recognized the Appellant from the moonlight. According to PW2, the gunshot injury was on the knee of his right leg.

At the commencement of the argument, the learned counsel for the Appellant invited the attention of Court to consider the belated statement by the injured and to reject his testimony on belatedness alone.

The injured giving evidence stated that, 3 days after the incident, he made a statement to the Matara Hospital Police Post. The prosecution admitted that such a statement was made to the police post, however, was unable to trace the said statement. According to S.I. Premathilake (PW10),the injured was recalled on 15/11/1999, and a further statement was recorded on the same date. He also stated that the said statement was recorded in order to commence investigations. This was followed by a further statement recorded on 06/12/1999, from the eyewitness PW7. It is observed that from the date of incident up to the date the statement of the injured was recorded, there was no investigation carried out by the police regarding this incident. Not a single question has been posed by the prosecution to this witness, seeking to explain the delay