JAYAWEERA AND ANOTHER

JAYAWEERA AND ANOTHER

Vs.

ATTORNEY GENERAL

COURT OF APPEAL
WICKREMASINGHE, J.
GAFFOOR, J.
CA/140-141/2012
HC COLOMBO 3174/2006
SEPTEMBER 19, 2018

Penal Code, sections 296, 380 and 32-Murder-Robbery-Code of Criminal Procedure Act, No. 15 of 1979, sections 256, 257-Power of the Attorney General to grant a pardon to an accomplice-Evidence Ordinance, sections 114(b), 133-Corroboration of evidence of an accomplice

The appellants were convicted of three counts of murder and two counts of robbery by the High Court. During the trial the prosecution led the evidence of an accomplice who had been granted a pardon by the Attorney General. The appellants challenged the conviction on several grounds of appeal including the reliability of the evidence given by the accomplice.

Held:

1. Sections 256 and 257 of the Code of Criminal Procedure Act, No. 15 of 1979, empower the Attorney General to grant a pardon to an accomplice. There is no mandatory requirement to mark the documents in relation to pardon in evidence.

2. When the possibility exists that a statement made to the police was forced and the investigation was mishandled at some stages, it is unsafe to attach undue importance to contradictions based on that statement.

3. A Judge can act on the evidence of an accomplice if it is corroborated on material particulars by independent evidence. The evidence of an accomplice does not become unworthy of credit merely because there are minor discrepancies.

4. Prosecution witnesses need not be corroborated by defence witnesses.

5. Proof of motive is not an element of an offence but if it can be proved, it will strengthen the prosecution case.

Cases referred to:

1. Monika Fernando and others v. Attorney General [CA/03/06/2005, CA Minutes of 17.02.2016]
2. Galagamage lndrawansa Kumarasiri and 3 others v. Attorney General and another [SC/TAB/Appeal 02/2012, SC Minutes of 02.04.2014]
3. Piara Singha v. State of Punjab [1969] AIR 961
4. Lachchi Ram v. State of Punjab [AIR (1967) SC 792]
5. Sarwan Singh v. State of Punjab [(1957) S.C.R. 953] APPEAL from the Judgment of the High Court of Colombo.

Rienzie Arsecularatne, P.C., with Prem Kumar, Thilina Punchihewa, Udara Muhandiramge and Chamindri Arsecularatne for the 1st Accused-Appellant.

Anil Silva, P.C., with E. Udawaththa for the 2nd Accused-Appellant. Thusith Mudalige, D.S.G., for the Complainant-Respondent.

cur. adv. vult.

April 4, 2019

WICKREMASINGHE, J.

The accused-appellants have filed two appeals seeking to set aside the judgment of the Learned High Court Judge of Colombo dated 10.01.2012 in case No. HC 3174/2006. Written submissions on behalf of the 2nd appellant were not filed even though the opportunity was given.

Facts of the case:

The two accused appellants namely Harison Jayaweera and Sunil Shantha alias Ruwan (hereinafter referred to as the 1st appellant and 2nd appellant respectively) were indicted in the High Court of Colombo on following counts;

1. On or about 07.05.2003 at Dehiwala with Kadiravel Mahendran committed the murder of Franklin Harmer, an offence punishable under section 296 read with section 32 of the Penal Code.

2. In the course of the same transaction, with Kadiravel Mahendran committed the murder of Deter Harmer an offence punishable under section 296 read with section 32 of Penal Code.

3. In the course of the same transaction, with Kadiravel Mahendran committed the murder of Daisy Ann Harmer an offence punishable under section 296 read with section 32 of Penal Code.

4. In the course of the same transaction committed robbery of items specified in the charge worth Rs. 31,000/=, an offence punishable under section 380 read with section 32 of Penal Code

5. In the course of the same transaction committed robbery of items specified in the charge worth Rs. 151,000/=, an offence punishable under section 380 read with section 32 of Penal Code.

The prosecution led the evidence of an accomplice, Kadiravel Mahendran as

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