AJITH
VS.
 ATTORNEY GENERAL (MATHUGAMA TRIPLE MURDER CASE)

COURT OF APPEAL
ANIL GOONERATHNE J.
SUNIL RAJAPAKSA J.
C.A NO. 208/2012
H.C KALUTARA 301/2003
ARGUED ON; 31.07.2014
DECIDED ON; 26.09.2014

Penal Code-Murder-Evidence of a small child-Criminal Procedure Code Section 420- Witness not in the Island-Evidence Ordinance Section 33- section 33(6)-Admission of deposition-Ellenborough principle-Test of Spontaneity- Contemporaneity promptness- Delay of recording statement-Fatal?

In this case - of triple murder - the prosecution relied on the evidence of a small child who was about 5/6 years at the time of the incident, after trial the accused was found guilty and sentenced.

In appeal it was urged that, there was a delay of about 21/2 years after the incident to record a statement of the child witness and the question whether a deposition of a witness in the non-summary inquiry could be admitted under Section 33 of the Evidence Ordinance.

Held,

1. Evidence Ordinance Section 33 is an exception to the hearsay rule and substantial evidence.

2. The accused has the right to be represented by counsel at a non-summary inquiry before the Magistrate and the right to cross examine the prosecution witness.

Even if the right and opportunity - have not been used requirements could be satisfied. Section 33 (6)

Per Anil Gooneratne J.

"There is no prohibition in law to admit the deposition, in evidence that was led before the High Court. Material placed before the High Court confirm due compliance with the provisions contained in Section 33 of the Evidence Ordinance. The explanation provided for in Section 33 fortify the position to admit deposition.

1. Delay is inevitable as in the case in hand. The police evidence suggests that it was not possible to record the statement of the child witness, due to his age and mental condition as at a very tender small age he saw brutal killing of his own Kith and Kin, He lost the closest companions who gave all the love and affection to him. Delay of the child witness to make a statement is justified.

2. In applying the test of spontaneity and the test of contemporaneity/ promptness court ought to scrupulously proceed to examine the reasons for the delay. If the reasons for the delay adduced are justifiable and probable the trial judge is entitled to act on such evidence.

3. The accused made a total denial of the incident and made a dock statement. There was no proper explanation in the Dock Statement. Ellenborough dictum even if it cannot be applied, by normal reasoning one could logically infer guilt.

4. In Criminal cases the burden of proof remains the same, even if the Accused remains silent or has given evidence on oath or a dock statement will not alter the burden of proof for the prosecution.

Appeal from the judgment of the High Court of Kalutara.

Cases Referred to:

1. Leelawathie Manike Palle Thenna and Another V. A.G. - C.A. 178/1999 CALR 13.6.2008 at 488

2. Subramainam Vs. Inspector of Police, Kankasanthurai - 71 NLR 204/205

3. Dayananda Lokugalappaththi & Eight Others Vs. State (Embilipitiya Murder Case) 2003 3 SLR 362

4. Kobeigane Murder Case 2004 2SLR 209

5. Pauline De Croos V. The Queen

6. Narapal Singh V The State of Hariyana

Tenny Fernando for the Accused Appellant

Ayesha Jinasena D.S.G. for A.G.

Cur adv. vult

September 26, 2014
ANIL GOOWERATNE, J.

This was a case of triple murder, involving members of one family. Unfortunate incident occurred on 06.07.1998. Victims are the wife, father and mother of the Accused-Appellant. Prosecution depends on the evidence of a small child who was only about 5/6 years old at the time of the incident who saw his own mother, grant-father and grant-mother being murdered by his own father, an estate labourer. When this child gave evidence in the High Court he was about 15 years old. One of the main points urged, against the child witness (as described by the defence) is the delay of recording the statement of