ROSHAN VS. THE ATTORNEY GENERAL

ROSHAN VS. THE ATTORNEY GENERAL

COURT OF APPEAL
ROHINI MARASINGHE.J
SARATH DE ABREW.J
CA 120/2004
HC GAMPAHA 46/2004
MARCH 2, 17,2009
JULY 9, 17,2009

Penal Code- Section 300, Section 383 -Identification -Delay in holding - Unlawful detention in Police custody? - Evidence Ordinance Section 27, Section 54, Section 114(d) - Dock etatement : Evaluation - Can a conviction be sustained under a section which does not create an offence - Best Evidence Rule- Constitution Article 13 (3)

The accused-appellant was indicted under Section 300, Section 383, Penal Code - after trial without a jury was convicted on both grounds.

In appeal it was contended that there was an improper constitution of the Identification Parade and long delay in holding the parade, that the Doctor who attended on the injuries of the complainant was not called that, the conviction cannot be sustained under a section which does not create an offence and that there was improper evaluation of the dock statement and the improper admission of inadmissible evidence with regard to bad character.

Held:

(1) The parade has been held belatedly 50 days after the event. Court has failed to consider the impact on the unreasonable delay on the ability of the complainant to make a genuine identification. The accused had not been afforded an opportunity to be represented by Counsel at the parade and the parade has been improperly and unfairly constituted.

(2) Offending item of bad character evidence has crept into the record and formed part of the proceedings. This is extremely prejudicial to the interest of the accused, and would adversely affect the right of an accused to a fair trial. The nature of the bad character evidence admitted has a direct bearing on the question of the accused having a violent disposition and being branded as a notorious criminal.

(3) The trial Judge has made no effort to make a genuine judicial analysis of the contents of the dock statement and give cogent reasons for rejecting same in his endeavour to determine whether it it would create a reasonable doubt in the prosecution case.

(4) The trial Judge has failed to elicit from the Doctor whether the injuries on the complainant constituted a very great antecedent probability of death as opposed to a mere likelihood of causing death, which is a sine qua non in maintaining a charge of attempted murder under Section 300.

Per Sarath de Abrew.J

'The robbery charge is defective as Section 383 is not a section that creates an offence. The State Counsel and the learned trial Judge have neglected to amend this charge appropriately to be read with Section 380".

APPEAL from the judgment of the High Court of Gampaha.

Cases referred to:-

1. A.G. us. Viraj Apponso - SC 24/2001
2. Nissanka v. State - 2001 - 1 Sri LR 78
3. Keerthi Bandara v. A.G. - 2002- 2 Sri LR 245
4. AG vs. W.J. Aloysius and others - CA 1700/84- CAM 3.9.1992
5. Regina vs. Turnbull and another - 197- QB 224 at 228
6. W.A. Fernando vs. Queen 76 NLR 265
7. Wijepala vs. A.G: 2001 (1) Sri LR 46
8. A.G. vs. K.M. Premachandra and two others- CA 39-41/97
9. In Re Gunarathna Banda - Law of Evidence E.R.S.R. Coomaraswamy Vol. 1

10. Heenbanda vs. Queen - 1969 SC - 113/68
11. Perera vs. Naganathan 66 NLR 438
12. Coornaraswarny vs. Meera Saibo - 1940 SLU 68
13. R vs. Ranasinghe- Sc 45/I 975- SCM 14.8.1975
14. Gumpala and others vs. Republic of Sri Lanka- CA 23/26-92
15. AG vs. Somadasa- CA 32/ 78
16. J.P.A. Sli Kantha and 5 others vs. A.G: CA 42-47/97
17. Wickmmaratne vs. Chandradasa - 67 NLR 150
18. L.C. Fernando vs. Republic of Sri Lanka - 79 (2) NLR 313 at 377

Rienzie Arsecularatne PC for accused-appellant
Vijith Malalgoda DSG for respondent.

September 14th 20 1 1
SARATH DE ABREW, J.

The accused-appellant was indicted in the High Court of Gampaha on the following counts:

(1) Causing injury to P.P. Amarasena which is sufficient to cause death in the ordinary course of nature

Click Here to Read the rest of this document