Credibility of the evidence of the sole eyewitness—Reasonable doubt—Failure to produce the first information -
WIJEPALA v. THE ATTORNEY-GENERAL SUPREME COURT FERNANDO. J. WADUGODAPITIYA, J. AND ISMAIL. J. SC APPEAL NO. 104/99 SC (SPL) LA NO. 238/99 CA NO. 80/95 HC PANADURA NO. 534/99 3rd OCTOBER, 2000 •
Criminal Law—Conviction for culpable homicide not amounting to murder—Credibility of the evidence of the sole eyewitness—Reasonable doubt—Failure to produce the first information - Denial offair trial - Article 13(3) o f the Constitution. The appellant and his brother Carolis were indicted with the murder of the deceased before the High Court. Carolis was acquitted, and the appellant was convicted of culpable homicide not amounting to murder. The sole eyewitness was Senaratne the father of the deceased.
He said that at about 7.30 p.m. on the day of the incident he set out with the deceased to visit one Thomas Singho to obtain some money to purchase fertilizer. On the way they met the accused and five others. One of them inquired whether the witness and his son had come to spy on the kassippu business the accused were carrying on. The deceased replied in the negative. The appellant had a knife, and Carolis had a katty. In the course of the incident that ensued, the appellant stabbed the deceased, which the witness observed with the aid of a flashlight. The witness escaped the scene through fear and remained in hiding until it was safe to return. He then returned to the scene and removed the deceased to the hospital with the assistance of Gramasevaka, Jayapala.
The witness said that he made a statement to the hospital police at about 9.30 p.m. The stab injury caused the deceased's death. Witness Senaratne did not produce the statement he allegedly made at 9.30 p.m. - But the witness had in fact made a statement to the Anguruwatota Police at 11.30 p.m. in which he had stated that both accused had pointed knives. The Gramasevaka testified that he provided his car and accompanied witness Senaratne and the deceased to the hospital. But there was no proof that Senaratne told him who attacked him that night or later. Witness Thomas Singho provided evidence but did not confirm having requested Senaratne to call over that night to obtain a loan. A witness named Siripala, who claimed that he visited the scene soon after the stabbing, testified that Senaratne came a few minutes later and lifted up the deceased, saying, “Son, who has done this to you?” Held : 1. The evidence of the sole eyewitness 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. Per Ismail, J. “The evidence of Senaratne, who was the sole eyewitness to the incident, is open to suspicion. The trial judge had failed to appreciate that his evidence regarding the identity of the appellant has not been supported by any other item of evidence.”
If Senaratne had made a statement at 9.30 p.m., that statement should have been brought to the notice of the court and the defence and the failure to do so impaired the right of the appellant to a fair trial, which was his fundamental right under Article 13(3) of the Constitution. Per Fernando, J. “If indeed the 11.30 p.m. statement was the first information, then obviously Senaratne had not made an earlier statement at the police post; if so, his evidence on that point was not credible; On the other hand, if Senaratne was truthful in claiming that he had made a statement at 9.30 p.m. then that statement would have been the first information. Whether in that statement Senaratne had claimed that he had seen the stabbing, and had identified the appellant as the assailant would have been of very great importance.
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