Appeal Court sets aside conviction

Sarath MALALASEKERA

The Court of Appeal affirms the conviction and the sentence ordered in respect of theft of a gold chain which is charge No. 1. With regard to Charge No 2 court set aside the conviction and sentence for murder and convict the first accused for culpable homicide not amounting to murder based on knowledge under the second limb of Section 297 and sentence him to a term of five years rigourous imprisonment to be effective from the date of conviction namely, from December 13, 2006. As far as the first accused is concerned the sentence imposed on the first accused in relation to the charge of theft shall also take effect from the date of conviction.

The Bench comprised Justice W.L. Ranjith Silva and Justice D.S.C. Lecamwasam.

In this case first accused-appellant Mapalagamage Nuwan Kumara alias Duminda and second accused-appellant Kandauda Ajith de Silva cited The Attorney General as the respondent.

Justice Ranjith Silva in his lengthy judgement with Justice Lecamwasam agreeing stated that "we are relieved to a great extent at this stage because some of these facts are conceded to by the Deputy Solicitor General who states that he is not pressing the Court to affirm the conviction for murder in respect of the second accused and for the reasons we have stated earlier in this judgement we acquit and discharge the second accused of the charge of murder levelled against him.

With regard to the first accused same conditions prevail but Counsel for the first accused with the consent of the Deputy Solicitor General is prepared at this stage to plead guilty to a lesser offence, that is culpable homicide not amounting to murder based on knowledge under the second limb of Section 297.

The judgement also stated in this particular case it is a question whether the prosecution succeeded in proving the first element namely, that a person who was alive was killed. The presumptions that could be applied in the normal course of nature cannot be applied in the peculiar circumstances of this case. There is no evidence to show or suggest that the particular person was alive as the person according to the video clip was in the water for some time when she was taken out of the water and there was no life it appears even when she was rescued and showed no signs of life when kept on a cemented area situated at a higher elevation not under water.

There is no postmortem report available to show whether the person was dead at the time or died subsequently. It is unfortunate that in a tsunami condition such postmortem inquiries and medical examinations are not possible, but yet the law does not permit to ignore presumptions and act in a different manner which is not in keeping with the law.

The normal presumption that we are aware of is that a person has to be presumed innocent unless and until it is proved beyond reasonable doubt that such a person committed that offence.

Deputy Solicitor General Jayantha Jayasooriya appeared for the Attorney General.

Senior Attorney P Samararatna with Attorney S Liyanage appeared for the first accused appellant.

Senior Attorney Thirantha Walaliyadde with Attorney Nipuna Wimalasekera appeared for the second accused-appellant.