LALITH RAJAPAKSHE

LALITH RAJAPAKSHE

VS.

 PEIRIS AND OTHERS

COURT OF APPEAL
DEEPALI WIJESUNDERA, J,
JAYASURIYA, J.
CA 224/2008
HC NEGOMBO 259/2003
MARCH 11,24,2016
MARCH 30, 2017

Convention Against Torture and other Cruel Inhumane Or Degrading Treatment or Punishment Act No. 22 of 1994 - Section 2 Evidence Ordinance - Section 134- Is the evidence of a sole eye witness enough to prove a charge? How many witnesses to be called? Misdirection ?

The accused was charged under Section 2 of Act 22 of 1994. After trial the accused was acquitted - the aggrieved party appealed.

Held:

(1) the JMO testified that there were 10 life threatening injuries on the Petitioner as well as wounds on the feet and soles of the feet - The High Court Judge stated that there were no wounds on the feet - this is a misdirection.

(2) The High Court Judge has stated that the two persons who were at the Petitioner's house were not called as witnesses to corroborate the Petitioner's evidence. These two persons were not listed as witnesses. Therefore calling them as witnesses does not arise. This is a clear misdirection - Section 134 Evidence Ordinance.

(3) The High Court Judge has failed to see that the aggrieved party's evidence is enough to identify the person who assaulted him. Evidence of the sole eye witness is enough to prove a charge against an accused provided he has given cogent evidence.

(4) The Courts are concerned with the merit of the statement of a particular witness, they are not concerned with the number of witnesses examined by the prosecution.

(5) The oral testimony of single witness, may be classified as,

1. wholly reliable
2. wholly unreliable
3. Neither wholly reliable nor wholly unreliable

In the first two categories, there may be no difficulty in accepting or discarding the testimony. The difficulty arises in the third category. Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial before acting upon testimony of a single witness:

APPEAL from the Judgment of the High Court of Negombo.

Cases referred to:

1. AG Vs. Mohomed Saheeb Mohomed Ismath CA No. 87/97
2. AG Vs. Devandorage Nihal SC Appeal 154/10
3. Raja Vs. State 1997 2 Crimes 175 (Delhi) .
4. State of Maharashtra Vs. Suresh Nivsutti Bhaunare 1997 2 Crimes (Born)

Dr. Sunil Cooray with AWDS Rodrigo for the Aggrieved Party Appellant Petitioner

Ranil Samarasooriya with Manjula Ranasinghe for the Accused Respondent

cur. adv. vult.

April 6, 2017

DEEPALI WIJESUNDERA, J.

The accused respondent was charged under section 2 of the Convention Against Torture and other Cruel Inhuman or Degrading Treatment or Punishment Act No. 22 of 1994. After trial the accused was acquitted and the aggrieved party has filed this appeal against the said acquittal.

The accused has taken the suspect aggrieved party (hereinafter referred to as petitioner) into custody for an allegation of theft on the 18.04.2002 this was not in dispute. The petitioner after being assaulted has fallen unconscious inside the cell and was admitted to the Ragama Hospital by the respondent. The petitioner stated that due to torture inflicted on him he got a fit.

The Judicial Medical Officer giving evidence in the High Court has stated that there were 10 life threatening injuries on the petitioner, as well as wounds on the feet and soles of the feet which the petitioner's counsel stated were not considered by the High Court Judge. The High Court Judge has stated in (p. 12) of the judgment that there were no wounds on the feet according to the medical evidence which amounts to a misdirection on the part of the High Court Judge.

The Petitioner's counsel argued that the learned High Court Judge's analysis of the evidence of the Judicial Medical Officer regarding the injuries on the feet of the petitioner is erroneous. The High Court Judge has stated {vide page 09 of the judgment) tha

Click Here to Read the rest of this document