SUNlL JAYARATHNA V. ATTORNEY GENERAL

SUNlL JAYARATHNA V. ATTORNEY GENERAL

SUPREME COURT
MARSOOF, J.
EKANAYAKE, J. AND
SURESH CHANDRA, J.
S.C. APPLICATION NO. 97/09
CA APPEAL NO. 451 2007
HC ( KEGALLE ) NO. 1230/97
NOVEMBER 23RD, 2010

Constitution, Article 138(1) - Appellate jurisdiction of the Court of Appeal for the correction of errors committed by the High Court, in the exercise of its appellate or original jurisdiction, - Penal Code - Section 34 - Proof of Common Intention :-A rule of evidence  does not create a substantive offence.

The case for the prosecution was that all three accused were armed with weapons and came almost together towards the deceased and attacked the deceased and dragged him and threw him into the river and the river where the body was found was in close proximity to the scene of the attack.

Three accused were indicted before the High Court of Kegalle for committing murder of one Gadayalage Sadiris. Of the 3 accused, the 3rd accused K.A. Gamini Jinadasa died pending trial and case proceeded against the 1st and 2nd accused. Both accused were convicted and were sentenced to death.

On appeal to the Court of Appeal, the appeal was dismissed.

The 2nd Accused-Appellant made an application for special leave to appeal against the judgment of the Court of Appeal. The Supreme Court granted leave on the following questions of law:

1. Did the prosecution lead any evidence whatsoever to establish that the Petitioner and the other two accused entertained a common intention to murder the said deceased Godayalage Sadiris (alias Madduma as required by law in order to apply the provisions of Section 32 of the Penal Code.

2. In the circumstances, is the conclusion of the Court of Appeal that the failure on the part of the Learned Trial Judge to consider the existence of murderous intention has not caused prejudice to the accused, justified ?

3. Have their Lordships of the Court of Appeal misdirected themselves by applying the provisions of the proviso to Section 334 of the Code of Criminal Procedure Act and those of the proviso to Article 138(1) of the Constitution to disregard the said failure in the circumstances of this case?

Held:

1.The common murderous intention, the main issue, can either be proved by showing that the accused had planned and carried out the act of murder together or that they through the act of committing the murder together had a common understanding between them to carry out the murder thus satisfying the test of common murderous intention.

2. Although the cause of death was drowning, the intention to commit murder was apparent when considering the evidence.

3. Unless there is some grave miscarriage of justice it would not be appropriate to interfere with the judgment of the trial judge who enters judgment after careful consideration of the first hand evidence put before her to which the Judges of the Appellate Court would not have the ability to witness.

4. When considering the proviso to Article 138(1) of the Constitution it is evident that the judgment of the learned High Court Judge need not be reversed or interfered with on account of any defect, error or irregularity which has not prejudiced the substantial rights of the parties or occasioned a failure of justice.

APPEAL from the Judgment of the Court of Appeal.

Cases referred to :

1. Alwis V. Piyasena Fernando (1993) 1 Sri L.R. 119
2. King V. Loku Nona and others
3. King V. Assanna and Others 50 NLR 324
4. Wijithasiri and Another V. Republic of Sri Lanka (1990) 1 Sri L.R. 56

5. Don Samapaia V. Republic of Sri Lanka 78 NLR 183
6. Sheela Sinharage V. Attorney General (1985) 1 Sri L.R. 1

Shyamal A. Collure with Weerasena Ranahewa for the 2nd Accused-Appellant

Palitha Fernando, P.C., ASG with N.Pulle SSC for the Attorney General.

Cur.adv.vult

June 29th 2011
SURESH CHANDRA J.

    This is an appeal from the judgment of the Court of Appeal by the 2nd Accused-Appellant.

    Three accused

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