HON. ATTORNEY GENERAL VS HENAKARALALAGE SENARATHNA ALIAS SENA

• Case Number: 2022SCOA0335C2017Y
• Citation: 2022SCOA0335C2017Y
• Date: 12 December 2022
• Court: Court of Appeal (Sri Lanka)

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HON. ATTORNEY GENERAL

VS

HENAKARALALAGE SENARATHNA ALIAS SENA

Court of Appeal Case No: CA /HCC/0335/17
HC Kegalle Case No: HC/3370/14

In the matter of an appeal in terms of Article CA 138 (1) of the Constitution and section 331 (1) Of the Criminal Procedure Code Act No 15 of 1979.

Hon. Attorney General,
Attorney General's Department,
Colombo 12.

Complainant

Vs.

Henakaralalage Senarathna Alias Sena

Accused

And Now Between

Henakaralalage Senarathna Alias Sena

Accused-Appellant

Vs.

Hon. Attorney General,
Attorney General's Department,
Colombo 12.

Complainant-Respondent

Before : N. Bandula Karunarathna J. &
R. Gurusinghe J.

Counsel : Nayantha Wijesundara AAL for the Accused-Appellant

Dilan Ratnayake SDSG for the Complainant-Respondent

Written Submissions : By the Accused-Appellant on 30.11.2021 and 11.07.2018

By the Complainant-Respondent 11.06.2019

Argued on : 21.09.2022

Decided on : 12.12.2022

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N. Bandula Karunarathna J.

This appeal is from the judgment, delivered by the learned Judge of the High Court of Kegalle, dated 29.11.2017 by which, the accused-appellant, who is before this court via Zoom Platform, was convicted and sentenced to death for having murdered Wahumpurayalage Pushpakumara Wijekoon.

The accused-appellant, had been indicted on 13.05.2014 in the High Court of Kegalle for committing the murder of Wahumpurayalage Pushpakumara Wijekoon on or about 23.04.2013, which is punishable in terms of section 296 of the Penal Code.

After the trial without a Jury, the learned High Court Judge convicted the accused-appellant and imposed death sentence on 29.11.2017. Being aggrieved by the conviction and sentence, the accused-appellant has preferred this appeal to this court.

The appellant has raised 3 grounds of appeal.

(i.) Whether the learned Trial Judge correctly followed the Procedure with regard to section 196 of the Code of Criminal Procedure Act.

(ii.) Whether the learned Trial Judge correctly followed the Procedure with regard to section 195(ee) of the Code of Criminal Procedure Act.

(iii.) Whether the learned Trial Judge has considered the evidence of the Sniffer Dogs as credible evidence in this case when it was unsafe to act on such evidence

The trial had commenced on 20.05.2015, during which the prosecution had, led evidence of 16 witnesses, marked documents - 1 to - 28. Once the prosecution had closed its case, the accused-appellant had made a statement from the dock. Thereafter, the learned magistrate who conducted the inquest was summoned to give evidence on behalf of the accused person. At the conclusion of the trial, the accused-appellant had been found guilty on the murder charge and sentenced to death. Aggrieved by the said decision the accused-appellant preferred this appeal.

The aforesaid charges were read out to the accused-appellant in open courts, the accused person requested for a non-jury trial. The learned counsel for the accused-appellant argued that the Trial Judge failed to comply with the mandatory provisions of section 196 of the code of Criminal Procedure Code as the aforesaid charges were only read out to the accused appellant but not explained the charges to him. Whereas according to section 196 he "shall read over and explain the charges to the accused".

The purpose of reading out and explaining a charge to an accused Is that he should be fully informed of the Accusation against him to enable him to respond. Merely reading out a charge will not achieve this purpose since a person who is not educated in law will not understand the contents of a charge sufficiently to enable him to effectively plead the charge. In the present case the charge in the indictment is specifically mentioned as follows;

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Even if the accused person appeared in person, the present charge could have been understood very well as it was in simple language. If the charge was expressed using legal terms and if it cannot be understood for a layman then it is a different matter to be considered at the appeal stage. I do not agree with the said argument of the learned counsel for the appellant that the accused person did not understand the charge against him. Not only that the accused person was represented by learned defence counsel and therefore if the charge was complicated and difficult to understand it is the duty and responsibility of the defence counsel to inform the court that the charge should be explained to his client. There was no such request from the learned counsel for the accused person according to the proceedings dated 20.05.2015.

It is important to note that on 07.08.2014 when the indictment was served on the accused person for the first time there was no appearance on behalf of the accused person when the indictment was read over to him the accused person has pleaded not guilty and requested for a nun-jury trial. It was recorded and thereafter counsel was assigned by the learned High Court Judge at that time. There was no request from the assigned counsel that the charge was not understood by the accused person thereafter it was fixed for the trial. It is very clear that, by not explaining the charge no prejudice was caused to the accused-appellant.

The argument of the learned counsel for the appellant that the operative part of the section is to explain and reading over is merely to complement the operative part. The very purpose of the section is to make sure that the accused understands the accusation before he pleads. A plea taken without complying with this obligation is not a valid plea and renders the proceedings ab initio void due to the absence of a valid plea. Considering the above-mentioned circumstances, I do not agree with the said argument raised by the learned counsel for the appellant, on section 196 of the Criminal Procedure Code (CPC).

The learned counsel for the appellant further submitted that the right conferred to an accused by section 196 of the CPC is the most important right given to an accused in our Criminal Justice system in view of the fact the right ensures that an accused understands the nature of the accusation against him before he pleads.

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