Evidence of the eye witness - evaluation - duty of the State Counsel

Evidence of the eye witness - evaluation - duty of the State Counsel 

It was observed by the Court in this case, that a State Counsel who prosecutes a criminal matter is not a mouth piece of the victim. It is not his role to secure a conviction at any cost, but rather acting on behalf of the 'minister of justice' to seek and obtain a fair verdict, making disclosures of all material evidence pertaining to the matter before the Court, irrespective of whether that evidence favours the appellant or is against the appellant.

IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

Oliver Dayananda Kalansuriya Raja

v

Attorney General

SC. Appeal No.144/2013

 

Before:       Hon. Justice W.P.G. Dep PC. 

                   Hon. Justice Rohini Marasinghe 

                   Hon. Justice B.Aluwihare PC. 

 

 

Counsel:    Anil Silva PC with Manoj Nanayakkara for  Accused/Appellant. 

                  Dappula De Livera ASG for Complainant/Respondent.

 

Decided 

         on :    11.11.2015

Rohini Marasinghe, J 

Oliver Dayananda Kalansuriya alias Raja was convicted for the murder of Ratnapala Sumanasekera on 1st April 2009. He appealed to the Court of Criminal Appeal against the judgment of the High Court. On 13th February 2013, the Court of Criminal Appeal dismissed the appeal and affirmed the conviction and the death sentence imposed by the High Court. This appeal is against those judgments. 

 

The application for leave was heard by the Supreme Court. The Supreme Court had granted leave under Article 128(2) of the Constitution. Under Article 128(2) the Supreme Court may in its discretion grant leave to appeal to the Supreme Court from any final or interlocutory order, judgment, decree, or sentence made by the Court of Appeal in any matter or proceedings, whether civil or criminal where the Supreme Court is of the opinion that the appeal merits a review by the Supreme Court. And, that the Supreme Court shall grant leave to any matter or proceedings when it is satisfied that the question to be decided is a matter of public or general importance. In this case the Supreme Court had been of the view that pursuant to the question of law raised in paragraph 19 (b) of the petition dated 22.03.13 the matter was fit for review by the Supreme Court. The question of law raised was as follows: 

 

"Did the Court of Appeal err in failing to evaluate the evidence in the case in its totality and thereby the Petitioner was deprived the substance of a fair and impartial evaluation of the evidence against him." 

 

The sole eye witness in this case was one Ajith Kumar (herein after referred to as AK). He was the older on of the deceased. The younger son was one Thilina. 

 

The testimony of the witness was that on the day of the murder on the 13th November 2002 around 7.30 in the night he was talking with one Piyal. At that time they saw the deceased walking drunk and abusing Thilina. The witness AK thought that it was prudent to follow the father in order to avoid any harm that deceased may cause to Thilina that night. He also stated that Piyal also had suggested that he should follow the deceased. Whilst following the deceased who was walking towards their home AK had met his mother Gnawathie and his sister. AK had told them that the father was drunk. They too had followed behind AK. At that time AK had seen the appellant come towards his father with a knife. The appellant had asked the deceased to stop. The deceased had turned towards the appellant. The appellant had stabbed the deceased at that time. And the appellant had also chased AK who managed to run away. When AK reached his house he had seen the deceased fallen with injuries. There had been no one near the deceased. Immediately AK went to get a car from Piyal to take the deceased to the hospital. He had told Piyal that his father was stabbed by Raja (Page 82 of the Brief). The summary of his testimony was that he saw the father being stabbed by the appellant. Shortly before that on the way he had met his mother and the sister. And, he had spoken to both of them and informed them that the father is after liquor. He had been speaking to them for about 4-5 minutes before the incident of stabbing (Page 94 of the Brief). AK had told the name of the assailant to Piyal when he went to fetch the car from Piyal to take the deceased to hospital (Page 82 of the Brief).

 

These facts are not corroborated by the witness's mother, his sister or by Piyal. In fact Ak's testimony was directly contradicted by the two of them. 

 

In her testimony, the witness Gnawathie (widow) stated that she did not see AK before the stabbing. She had seen the witness AK only at the time the deceased was taken to hospital by AK. She also stated in her testimony that AK did not mention to her about the stabbing incident at any time during that period. Strangely, the witness AK had remained silent with the name of the assailant and the entire incident of stabbing which he claimed to have witnessed that evening. No reason had been advanced  to this abnormal behavior of AK's silence. In these circumstances only rational reasoning that could be given would be that AK had not seen the stabbing. 

It is natural that the first question any reasonable person would ask in these circumstances would be, 'who did this? It is strange that none of the witnesses mentioned to each other the name of the assailant, when according to AK the name of the assailant was known. According to these witnesses there was no animosity between the deceased and the appellant to cause harm to the deceased. The witness Piyal does not state that he met AK at the time the deceased was walking drunk and abusing Thilina. The witness Piyal also denies that AK had mentioned the name of the assailant. In fact his testimony at pages 129 and 130 of the Brief, was that AK had not mentioned the name of the assailant or that he saw the stabbing when AK got into the vehicle to take the deceased to hospital. 

The trial court ought to have addressed its mind to all these supportive facts, before accepting those facts as proved and supportive evidence. Therefore, the evidence of the sole witness AK, we find to be untrustworthy as it was discredited by the other witnesses. The uncorroborated evidence is sufficient for a conviction if that evidence was not contradicted on material points by other witnesses who were material witnesses. (Vide Sumanasena v. Attorney General (1999) (3) SLR p. 137) 

One of the questions which had arisen at the trial was whether AK actually did see the deceased being stabbed. The witness Gnawathie, deceased's wife who came to the spot where her husband (deceased) lay, having fallen, had been weeping and saying "who has done this". Her two sons namely AK and Thilina had taken the deceased to hospital. But none of them had told their mother anything about the incident, although she had been with the deceased when AK came with the vehicle to take the deceased to hospital (Page 107 of the Brief).  

 

The evidence of the sole eye witness raised a strong doubt as to the guilt of the appellant and the court should have given the benefit of that doubt to the appellant. (Vide Wijapala v. Attorney General (2001) 1 SLR page 46) 

 

When this matter was listed before the Court of Criminal Appeal, the learned Deputy Solicitor General had informed the Court that he does not support the conviction probably due to these infirmities in the evidence. Notwithstanding the position taken by the officers of the Attorney General's Department, the Court of Criminal Appeal affirmed the conviction and dismissed the appeal. It must be borne in my mind that a State Counsel who prosecutes a criminal matter is not a mouth piece of the victim. It is not his role to secure a conviction at any cost, but rather acting on behalf of the 'minister of justice' to seek and obtain a fair verdict, making disclosures of all material evidence pertaining to the matter before the Court, irrespective of whether that evidence favours the appellant or is against the appellant. As once mentioned by then Attorney General Sunil De Silva PC, when considering the question of law or the application of the law to the particular set of facts it might be cogent to have in mind the age old saying in the Latin Maxim "quot hominess tot seateatiodas" [many opinions as there are men]. Having once being a State Counsel one time, I am aware that these decisions are often taken after much discussion with the superiors in the Attorney General's Department, even with superiors as highly positioned as Solicitor General and even the Attorney General. In this case, and to my mind the Deputy Solicitor General had made the correct assessment of the facts and the law, when he submitted to the Court of Criminal Appeal, that he was not supporting the conviction. And in my view the conviction and the sentence imposed by the trial court cannot be supported as it is clearly against the weight of the evidence led at the trial. The judgment of the High Court is set aside. Based on that conclusion,  the judgment of the Court of Criminal Appeal is also set aside. In these circumstances I answer the question of law stated above in favour of the appellant. 

The appeal is allowed. 

The Prison Authorities are hereby directed to release the appellant with immediate effect. 

I agree.
 

W.P.G.Dep PC.,J

 Judge of the Supreme Court

 

I agree
B. Aluwihare PC.,J

Judge of the Supreme Court