PREMASIRI AND ANOTHER

PREMASIRI AND ANOTHER
V
REPUBLIC OF SRI LANKA

COURT OF APPEAL
SRISKANDARAJAH.J.
SILVA.J
CA 39 - 4012000
HC RATNAPURA23195
JUNE 30, 2003
JANUARY 31,2007

Penal Code - Section 296 - Murder - Credibility- Perusing statement previously made by witness to determine credibility - Duty of Judge? - Defence of alibi - Dock statement . 

The two accused appellants were convicted of the murder of one M. In appeal it was contended that the main witness had a motive to falsely implicate the 1st accused - appellant; that there was a duty cast-on the trial Judge to peruse the police statement and the deposition in the Magistrate's court· of the main witness to determine the credibility of the witness, relying on Kirthi Bandara and Muniratna cases.
 

It was further contended that the evidence of alibi put forward by the 1 st accused had not been adequately considered. The respondent contended that the alleged contradiction was not put to the witness at the time when the  itness gave evidence, and without clarifying the position with the witness, the appellant cannot urge the Appeal Court to examine the police statement and the deposition in the Magistrate's Court to ascertain the correctness of the statement .

Held:

Per Sriskandarajah. J

" Keerthi Bandara's case and Muniratne's case, are in relation to omission or contradiction of witness in relation to the identity of the accused. The identity of the accused goes to the very root of the case, but in the instant case the so called contradiction or omission is in relation to a statement of fact Therefore th is omission or contradiction cannot be treated as vital and it will not affect the credibility of the witness In any way".

(1) The dock statement or the evidence of witness Piyadasa or both together or separately does not support an alibi ; as the defence of alibi is improbable the 1st accused ' s defence is reduced to a mere denial of his involvement.

Per Sriskandarajah. J

"The remark of the High Court judge that non acceptance of the defence confirms beyond doubt the position of the prosecution cannot be construed as suggested by the leamed Counsel for the 1staccused that the trial judge utilized the rejected evidence to effectively bolster the prosecution case, but on the other hand it can be construed as the defence case is rejected therefore it is incapable of throwing any doubt on the prosecution case which had been proved beyond reasonable doubt.

(2) It is a misdirection in law if a burden has been placed on the accused to prove a plea of alibi even on a balance of probability.

APPEAL from the judgment of the High Court of Ratnapura .

Cases referred to :

1. Kirthi Bandara vs. Attorney General 2000 2 Sri LR at 258 (distinguished)
2. Muniratne vs. State 2001 2 Sri LR 382 at 395 (distinguished)

3. Regina vs. Turnbull & another - 1977 QB 224 at 228
4. K VS Marshall 51 NLR 157
5. R vs. Fernando 48 NLR 251
6. R vs. James Chandrasekara 44 NLR 126
7. Yahonsi singho vs . Q 67 NLR 8
8. Gunepala vs. The Republic CA 23 26/92 HC Ratnapura 23/88
9. K vs. De Silva 17 Law Recorder 89

Dr. Ranjith Fernando with Amali Udayanganie for 1st accused - appellant

Ranjith Abeysuriya PC with Thanuja Rodrigo for 2nd respondent - appellant

Palitha Fernando DSG for Attorney General
 

Cur. adv. vult

February 22, 2007
SRISKANDARAJAH.J

The two Accused Appellants have been convicted by the High Court judge sitting without a jury, for the murder of Pithirange Mudalihamy on or about 21st of October 1987. The case for the prosecution was based mainly on
the evidence of Alakendra Arachchige Mary Nona, the widow of the deceased. She is the sole eyewitness to the incident. According to her on the day of the incident at about 4.30 - 5.00 p.m. she had gone with the deceased to bring water to a near by well. After filling their cans they had come up to the road when they met three persons coming towards the

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