UPUL CHINTHANA ALIAS BINDU AND 2 OTHERS

UPUL CHINTHANA ALIAS BINDU AND 2 OTHERS
V.
THE ATTORNEY GENERAL

COURT OF APPEAL
RAJA FERNANDO, J. AND
GAMINI AMARATUNGA, J.
CA APPEAL NO. 58/99,59/99,60/19
HC GALLE NO. 1911
FEBRUARY 19th, 2002
MARCH 6th 2002 AND MARCH 7th 2002.

Penal code - S. 293 - culpable homicide - causing of death by doing an act with the intention of causing death, an act with the causing such bodily injury as is likely to cause death; or with the knowledge that he is likely by such act to cause death - 296 - punishment for murder common intention.

The three accused - appellants were sentenced to death after trial by the High Court for causing the death of the deceased under Section 296 of the Penal Code.

The case of the Prosecution depended on the testimony of a single eye witness who had seen the killing of her deceased husband. She was present in the house when her husband was killed. At the time of the incident the light in the house kept burning in the night since there were three children in the house.

The deceased's wife had made her complaint to the police on the same night at 11.55 p.m. within two hours of the incident.

Held :

(1) The presence of the three accused together, at the time of the commission of the crime and at the time the 2nd accused inflicted the fatal injuries on the deceased shows that the three accused have acted with common intention and that it was a common murderous intention.

per Gamini Amaratunga, J -

"... the task of the Court is not to count the number of witnesses but to weigh the quality of evidence..."

...the learned trail Judge's decision is correct in law and is based on a sound factual basis namely the unassailed testimony of the sole eye witness..."

(2) Consistency of a witness testimony is a factor which would persuade a Court to accept the testimony of a witness.

Appeal from a judgment of the High Court of Galle.

Ranjith Abeysuhya, PC with Dilusha Mirihana for the 1st Accused -Appellant D.S. Wijesinghe, PC with Mrs. Dharmadasa for the 2nd Accused-Appellant Eardley Perera, PC with Ms.Ramani Lenora for the 3rd Accused-Appellant Palitha Fernando, Deputy Solicitor General for the Attorney General.

Cur.adv.vult

May 5th, 2003
GAMINI AMARATUNGA, J.

The three accused appellants were convicted of murder and sentenced to death after trial before the learned High Court Judge of Galle sitting without a jury. The charge against them was that they on 13/5/1992 at Kottegoda caused the death of Loku Yakdehige Anura and thereby committed an offence punishable under Section 296 of the Penal Code.

At the hearing before us it transpired that the accused appellants were first tried in the High Court of Matara and that case has ended up in an acquittal. Thereafter upon an appeal to this Court by the aggrieved party, this Court has set aside the order of acquittal and order a re-trial. This appeal is against the decision given by the Galle High Court at the re-trial.

The case for the prosecution dependend on the testimony of a single eye witness who has witnessed the killing of the deceased and that witness is none other than the deceased's wife Sriyalatha who was present in the deceased's house when the later was killed in his own home.

According to the evidence of Sriyalatha she had three children by the deceased and at the time of the incident the youngest child was about ten months old. At the time of the incident the construction of their house was not complete and there was no proper front door which could be securely fastened. The temporary covering of the front door was tied and fastened from inside during the night. This house had electricity. According to the evidence of Sriyalatha when one enters from the front door one enters the 'salaya' which means the hall. Sriyalatha has stated

that since there were small children in the house they kept the light in the hall burning throughout the night.

On the night in questio

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