THAMMETTAYALAGE THISSA KUMARA VS. HON. ATTORNEY GENERAL - HON. VIJITH K. MALALGODA, P. C, J (P/CA)

• Jurisdiction: Sri Lanka
• Case Number: 2016SCOA06C2011Y
• Citation: 2016SCOA06C2011Y
• Date: 08 July 2016
• Court: Court of Appeal (Sri Lanka)
• Type of Document: Unreported judgment

1

Thammettayalage Thissa Kumara

Vs.

Hon. Attorney General - Hon. Vijith K. Malalgoda, P. C, J (P/CA)

CA/06/2011
H/C Kegalle case No. 1384/1999

In the matter of an Appeal in terms of Section 331 (1) of the Code of Criminal Procedure Act No 15 of 1979.

Democratic Socialist Republic of Sri Lanka

COMPLAINANT

Thammettayalage Thissa Kumara

ACCUSED

And,

Thammettayalage Thissa Kumara

ACCUSED-APPELLANT

Vs,

Attorney General
Attorney General's Department
Colombo 12.

RESPONDENT

Before: Vijith K. Malalgoda PC J (P/CA) &
H.C.J. Madawala J

Counsel: Nagitha Wijesakara with P.M. Gunasekara for the Accused Appellant
Sarath Jayamanna PC ASG for the AG

2

Argued on: 01.10.2015, 23.10.2015

Written Submissions on: 16.03.2016

Judgment on: 08.07. 2016

Order

Vijith K. Malalgoda PC J

The accused-appellant was indicted before the High Court of Kegalle for committing the murder of one S. Nilmini Upul Kumara alias Podi Ralahamy on or around 25.10.1995 an offence punishable under section 296 of the Penal Code.

The accused appellant who appeared before the High Court on notice on 28.10.1999 opted for a trial before a judge without a jury, when the indictment was served on him. The accused-appellant who was present before the High Court trial until December 2000 had absconded thereafter and the trial had proceeded in the absence of the accused.

The Learned High Court Judge who convicted the accused-appellant on 27.06.2005, after imposing the death penalty had issued an open warrant on him. The accused-appellant who failed to lodge an appeal challenging the conviction and the sentence within the stipulated time was absconding until he was arrested by the police on 20th April 2010.

When the accused-appellant was produced before the High Court after his arrest, the court had proceeded under section 241 (3) of the Code of Criminal Procedure Act No. 15 of 1979 and held an inquiry under the said provision of the Law.

Section 241 (3) of the Code of Criminal Procedure Act No. 15 of 1979 reads thus;

241 (3) where in the course of or after the conclusion of the trial of an accused person under sub-paragraph (i) of the paragraph (a) of subsection (1) or under

3

paragraph (b) of that subsection he appears before court and satisfies the court that his absence from the whole or part of the trial was bona-fide then

(a) ........

(b) where the trial has been concluded, the court shall set aside the conviction and sentence, if any, and order that the accused be tried de novo.

As observed by this court, the accused appellant had submitted a petition and affidavit before the Learned High Court Judge giving reasons for his absence during the trial and as observed by the Learned High Court Judge the only reason pleaded by the accused-appellant was the fact that he was once discharged by the Learned Magistrate and therefore he did not attend the High Court. However the Learned High Court Judge had observed that the said position taken up by the accused-appellant before the High Court was incorrect since the accused-appellant had appeared before High Court during the trial dates nearly for one year.

Since that was the only ground under which the accused-appellant had canvassed his bona-fide, the High Court Judge after rejecting to act under the said version, refused the application for a de novo trial and made order to implement the death sentence already imposed on the accused-appellant on 27.06.2005 after recording the allocutus on 07.02.2011.

Being dissatisfied with the said order made under section 241 (3) of the Code of Criminal Procedure Act No 15 of 1979, the accused-appellant had preferred the present appeal before this court.

As observed by me earlier in this judgment, the accused-appellant had failed to lodge an appeal immediately after the conviction in the year 2005.

Under these circumstances we see no appeal preferred before this court against the conviction and the sentence imposed on the accused-appellant but the only appeal before this court is made against the order of the High Court Judge made under 241 (3) of the Code of Criminal Procedure Act 15 of 1979.

4

In the said appeal the only grounds under which the accused-appellant had preferred the present appeal is;

However when the present appeal...