PERUMAL PUNYAMOORTHY VS. HON. ATTORNEY GENERAL - HON. ANIL GOONERATHNE, J & HON. W.M.M. MALINIE GUNARATNE J

• Jurisdiction: Sri Lanka
• Case Number: 2014SCOA06C2012Y
• Citation: 2014SCOA06C2012Y
• Date: 10 July 2014
• Court: Court of Appeal (Sri Lanka)
• Type of Document: Unreported judgment

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Perumal Punyamoorthy

Vs.

Hon. Attorney General - Hon. Anil Goonerathne, J & Hon. W.M.M. Malinie Gunaratne J

C.A. 06/2012
H.C. Kegalle 1786/2002

Perumal Punyamoorthy

ACCUSED-APPELLANT

Vs.

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

RESPONDENT

BEFORE: Anil Gooneratne J. &
Malinie Gunaratne J.

COUNSEL: Jeffry Zenudeen for the Accused-Appellant
H.l. Peiris S.S.C for the Respondent

ARGUED ON:30.06.2014

DECIDED ON:10.07.2014

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GOONERATNE J.

In this appeal, two Accused were indicted for the murder of one Selvamuththu Poobalan, on or about 7.2.1999 in the High Court of Kegalle. At the outset of the hearing learned counsel for the Accused-Appellant as well as Senior State Counsel indicated to court that the 2nd Accused had expired. This is a case of circumstantial evidence. However during the course of the argument learned counsel for the Appellant and learned Senior State Counsel, both submitted to court that the procedure admitting statements under Section 33 of the Evidence Ordinance as regards witness No. 8 who was reported dead had not been properly admitted in court.

Police Inspector Gunasena who was witness No.8 in the back of the indictment was reported dead at the trial before the High Court. The proceedings of 16.1.2012 indicates that the State Counsel moved court to lead the deposition made before the Magistrate in the non-summary inquiry of the witness No.8. At the trial the deposition was marked as P3. The trial Judge refer to Section 33 in the judgment but it appears to court that the evidence of deposition had not been properly admitted and adopted as required by law. The learned Senior State Counsel refer to the case of Stephen and Others Vs.

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the Queen 67 CLW 48; followed in 41 NLR 534. The procedure to be adopted is clearly laid down in the above judgment as follows which need to be strictly adhered in the trial court. The said case read thus:

Sansoni J.

Mr. de Silva has brought to our notice an irregularity which has taken place in the course of the trial. A witness, Abeywardena, whose name was on the back of the indictment, had died before the trial began. The Crown Advocate who was prosecuting called evidence to prove the fact of death and then, according to the record, he moved to mark the deposition of the deceased witness, Abeywardena, as P17 and to read it in evidence. He also moved to amend the indictment formally so as to include this deposition P17 as...