DHARMASIRI
V.
THE REPUBLIC OF SRI LANKA

SUPREME COURT
SHIRANI TILAKAWARDANE, J.
MARSOOF P.C, J.
IMAM,J.
SC APPEAL NO. 04/2009
SC SPL. LA NO. 165/2008
CA APPLICATION NO.17/2004
HC HAMBANTOTA CASE NO. 44/99
JULY 19TH, 2011

Criminal Law- Penal Code- Section 294 - Murder Section 296 - Belated evidence - basis for delay- Holistic picture of the occurence -Approach of Court? Is there a burden on Court to inspect the Information Book?

The death of Arabada Gamage Nandawathi occurred due to an incident that took place on -31.3.1993, at her residence. At the trial, the prosecution led the evidence of two witnesses, the mother of the deceased and the son of the deceased. The Accused ( the Appellant) along with two others stood trial without a jury in the High Court. The Appellant and the 2nd Accused were found guilty and sentenced to death. The 3rd Accused was acquitted. The 2nd Accused died pending the hearing of the appeal in the Court of Appeal.

The Supreme Court granted Special Leave to Appeal on the following two questions of law:

(1) Have the Courts failed to consider the serious and material omissions in the main witness evidence?

(2) Have the Lordships of the Court of Appeal failed to scrutinize the information book of the police officers to determine whether in fact valid omissions subsist?

HELD:

(1) Two critical tests before considering belated evidence as reliable evidence are : firstly reasons for delay and secondly, whether those reasons are justifiable.

Per Shirani Tilakawardane, J.

"when considering the belated evidence or a belated statement, one cannot neglect the basis for such delay which transpired in the evidence. The Courts must look at the broader spectrum and must take into account the holistic picture of the occurrences that the family had been affected by, not forgetting the civil unrest and political tension in the country during 1980's to early 1990's ...."

(2) The delay of disclosing the Appellant is understandable under the circumstances and the Court agrees with the conclusions on this matter which is contained in the Judgments of the High Court and Court of Appeal.

Per Shiranee Tilakawardane, J.

"it is pertinent to note that in the present case the defense counsel did not spotlight a vital omission, and no omission was marked. Under the circumstances there was no burden for the trial judge to peruse the statements recorded in the information book."

(3) The Court of Appeal was correct is not interfering with the decision of the trial Judge as the trial Judge had applied correct principles in arriving at his decision.

APPEAL against the decision of the Court of Appeal

Cases referred to:

(1) Dayananda Lokugalappaththi and eight others V. The State - (2003) 3 Sri LR. 362

(2) Surendra Pal & Ors,. V. State of U.P.& ANR - Judgment dated 16.9.2010

(3) Sumanasena V. Attorney-General-(1999) 3 Sri LR. 137

(4) Jagathsena V. Bandaranayake - (1984) 2 Sri L. R. 397

(5) Keerthi Bandara v. Attorney General - (2000) 2 Sri L.R.245

(6) Banda and Others v. Attorney General- (1999) 3 Sri LR. 168

(7) Fattal V. Wallbrook Trustee (Jersey) Ltd- CA (2008) EWCA Civ 424

(8) Ambika Prasad and Another V. State (Delhi Administration) 2000 SCC Crl. 522

cur. adv. vult

Saliya Pieris with Upul Kumarapperuma and Suranga Munasinghe for Accused-Appellant

Gihan Kulatunga, S.S.C. for Respondent - Respondent

February 3, 2012,
SHIRANEE TILAKAWARDANE, J.

The Appellant has sought Leave to Appeal from the decision of the Court of Appeal dated 17th June 2008 whereby the Court of Appeal upheld the Judgment of the High Court of Hambantota. This Court granted Special Leave to Appeal on 28th January, 2009 on the following two questions of law.

i. Have the Courts failed to consider the serious and material omissions in the main witness evidence?

ii. Have the Lordships of the Court of Appeal failed to scrutinize the information book of the police officers to determine whether in f