MAHATHUN AND OTHERS
vs.
ATTORNEY GENERAL

COURT OF APPEAL
H.N.J. PERERA, J.
K.K. WICKRAMASINGHE, J.
CA 168 -170/2012
HC. MATARA 110/2008
FEBRUARY 25, 2015
MARCH 12, 20, 2015
MAY 13, 2015
JUNE 5, 9, 2015
JULY 15, 2015

Penal Code - Section 32 - Section 296 - Murder - convicted. Testimonial trust worthiness - credibility of witness - contradictions and omissions - should they go to the root of the matter? If not can the Court disregard them? - Could an Appellate Court disturb the finding of a trial Judge unless it is meaningfully wrong?

Held:

(1) When faced with contradictions in a witness testimonial, the Court must bear in mind the nature and significance of the contradictions, viewed in light of the whole of the evidence given by the witness. 

(2) Too great a significance cannot be attached to minor discrepancies, or contradictions.

(3) What is important is whether the witness is telling the truth on the material matters concerned with the event.

(4) Where evidence is greatly reliable much importance should not be attached to the minor discrepancies and technical errors.

(5) A Court of Appeal will not lightly disturb the findings of a trial Judge with regard to the acceptance or rejection of testimony of a witness unless it is manifestly wrong.

APPEAL from the Judgment of the High Court of Matara.

Cases referred to :

1. Sumanasena Vs. AG 1999 1 Sri. L.R. 137
2. State of U.P.V.M.K. Anthony 1984 2SC J 236
3. Mohomed Niyas Naufer and others Vs. AG SC Appeal 1/2006 C. A. M. on 08. 12. 2006.
4. Fradd Vs. Brown and Company Ltd. 20NLR 282

Anil Silva PC with Nandana Perera for the 1st Accused Appellant.

Rienzie Arasakularatne PC for the 2nd Accused Appellant.

Upul Kumarapperuma with Kaushalya Perera and Heshani K. Jayasuriya for the 3rd Accused Appelant.

Sarath Jayamanne PC for the Respondent.

Cur.adv.vult.

October 14, 2015

H.N.J. PERERA, J.
 
The accused - appellants were indicted in the High Court of Matara for committing the murder of one Wickrema Kalutota Hewage Amerasena at Devinuwara on 22nd September 1999 an offence punishable under section  296 of the Penal Code read with section 32 of the Penal Code. After trial

the accused - appellants were convicted and sentenced to death on 30.05.2012. Being aggrieved by the said conviction and sentence the accused - appellants had preferred this appeal to this court.

The key witness or the only eye witness produced by the prosecution to establish the charge against the accused - appellants was J. H. Kanthi, the wife of the deceased, who inter-alia testified that on the day in question she and her husband the deceased went to the Bank of Ceylon branch at Devinuwara to finalize a loan application and to obtain cash. They had their four year old child with them. After attending to preliminary matters they were waiting in the bank until the officials finalized the said application. Then they saw the 1st accused - appellant inside the Bank and had stated "Wellata bahinna panam hatharak hamba wei" to which the deceased responded by saying " Oyala ithin gahawi api ithin guti kanawa"

As there was delay in obtaining cash, the witness Kanthi had asked the deceased to go back home with the child. She testified to the effect that she came out of the Bank. The deceased after wearing the helmet, kept the child on the motor cycle and got on to the motor cycle. The witness Kanthi saw the three accused - appellants running together from the three wheeler park towards the motor cycle. The 1st accused - appellant was armed with a gun and all the accused were running towards the motor cycle. Witness Kanthi saw the deceased staring at the accused - appellants. As if realizing the potential danger the deceased at this stage took the child out from the motor cycle kept him on the floor. The deceased also got out of the motor cycle even without removing the helmet. The witness states that she saw 1st accused - a