SAMANTHA VS AG

SAMANTHA
VS
 AG

COURT OF APPEAL
RANJITH SILVA, J
PERERA, J.
CA 211/2007
HC COLOMBO 332/2001

Penal Code - Sections 295 - Sections 300 - Murder - Unlawful assembly-falsus in uno falsus in ominibus-Applicability of the Maxim-Dock statement-Evaluation-Irregularities in evidence? Prejudice caused?

The 2nd accused-appellant was charged along with the 1st accused on five counts. After trial the appellant was convicted on all counts but was sentenced only in respect of the 2nd and 4th counts [unlawful assembly, attempted murder].

It was contended by the accused-appellant that there were serious omissions, that, the High Court has considered the dock statement of another accused, that there were irregularities in the evaluation of evidence.

Held

Per Ranjith Silva, J.

'Roman Dutch Maxim falsus in Uno falsus in omnibus- applies in a qualified and restricted sense. If a man is caught lying in one instance he should be treated as a liar no longer applies and if the truth can be separated safely from the falsehood there is nothing wrong in acting on that the part of the evidence which is true-especially so when that part of the evidence which is true is considered to have been proved because that part is corroborated by another witness whose credibility is not in doubt".

(1) The High Court could not have evaluated the dock statement of the accused-appellant because it was a bare denial.

(2) The irregularities have not caused any prejudice to the accused-appellant therefore they can be brushed aside in terms of Article 138 [1], Section 334[1]

Per Ranjiih Silva, J.

"We feel that according to the prosecution the attempted murder took place at the second stage of the case-it is not safe to convict him on that charge"

APPEAL from the judgment of the High Court of Colombo.

Cases referred to;-

(1) Kamal Addaraarachchi vs. State - 2002 -1 Sri LR 312

(2) Simanga Ekanayake vs. AG-CA 1292005 H.C. Anuradhapura 142/2000

(3) Dharmadasa vs. Director General Commission to Investigate Allegation of Bribery and Corruption - 2003 1 Sri LR at 64

Niranjan Jayasinghe for accused -appellant

Vijith Malalgoda DSG for State

Cur.adv vult.

June 28, 2012
W. L. R. SILVA, J.

Heard Counsel for and against this appeal respectively.

The 2nd accused-appellant was charged along with the 1st accused in the High Court of Colombo on five counts. The appellant was charged for being a member of an unlawful assembly and for murdering one Don Pradeep Kumara. He was also charged for attempted murder of one Nishantha Pradeep Kumara. After trial the 2nd accused-appellant was convicted on all counts but was sentenced only in respect of the 2nd and the 4th counts.

Counsel for the accused-appellant argued that there were serious omissions in the evidence of Nishantha Pradeep Kumara PW1 and that the judge did not consider any of those omissions, In his evaluation of evidence the learned Judge came to the conclusion that PW1 was a truthful and credible witness who gave evidence without any contradictions There had been three serious omissions in his evidence namely witness No 1 had in his evidence mentioned that ho saw Kalu Ajith, one of the members of the unlawful assembly, who was dead by the time indictment was filed, shoot the deceased, in his mouth and the 2nd accused-appellant shot the deceased in his abdomen This particular witness had not mentioned this in his police statement or at the inquest

or at the non-summary. Thus three omissions were brought to the notice of court. The Learned Judge had believed him in toto.

We find that the evidence of this witness can be divided into two stages The first stage is the abduction of witness Nishantha and the second stage is incident of shooting. With regard to the first stage, there aren't any contradictions or omissions in the evidence of Nishantha Pradeep and we find that the wife of the deceased had mentioned in her evidence that there were five people and two of them

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