Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of K.K. Wickremasinghe and K. Priyantha Fernando, JJ., dismissed an appeal filed to set aside the judgment of the High Court.

The prosecutrix had testified that, the incidents had taken place about two years prior to testifying when she was in Grade 8 and the appellant had abused her for 5-6 times. The prosecutrix had narrated these incidents to her mother who took her to the police station and as per the prosecution evidence, the incident had taken place three months prior to making the police complaint. The JMO had testified that no injuries were found but the possibility of sexual abuse cannot be excluded as per the short history was given by the prosecutrix. The appellant had denied committing the offence and contended that he was being falsely implicated by his wife as he had caught her with her paramour. He further submitted that his wife lodged a complaint at the police station asking for the custody of the children and he had denied the same after which the wife had challenged him that she would send him to the prison and would take the custody of the children.

The counsel for the appellant AAL K. Kugaraja contended that the prosecution had failed to establish the date of offence to which the counsel for the respondent Sudarshana De Silva, submitted that the prosecutrix had clearly stated that the incident took place in the latter part of 2007. The accused-appellant had been indicted under three charges for committing Grave sexual abuse on his daughter, an offence punishable under Section 365B (2) (b) of the Penal Code, 1860 as amended. The Trial Court had convicted the accused-appellant and had sentenced him to 18 years of rigorous imprisonment along with fines aggrieved by which this appeal was filed.

The Court while dismissing the appeal explained that the Judgment of the High Court was well reasoned as when the victim is a small child and is abused by someone who is associated to him/her on a daily basis its nearly impossible to specify the exact same date of offence and also the evidence of the prosecution was corroborated by other witnesses as well and the High Court was satisfied with the trustworthiness of the evidence so there was no reason to disturb the findings of the trial court.[Kurundukara Hakuruge Ariyadasa v. Attorney General, C.A. Case No: HCC-0384 of 2017, decided on 05-12-2019]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Buwaneka Aluwihare, P. Padman Surasena and S. Thurairaja, JJ., dismissed an appeal filed by the Accused-Appellant, being aggrieved by the judgment of the High Court and the Court of Appeal.

The Accused-Appellant was an employee attached to the Sri Lanka Rupavahini Corporation as a technical officer and he was found guilty on selling copper transmission cables that probably belonged to the said Corporation, to a scrap metal dealer. The said vendor gave evidence to the fact that he had dealt with the Appellant on several occasions with regard to similar cables. The Accused-Appellant had been indicted by the High Court on 3 counts which were Section 367 of the Penal Code to be read with Section 3 of the Offences against Public Property Act and Section 395 of the Penal Code. The High Court in their judgment found the Accused-Appellant guilty on the third count and sentenced him with 5 years of imprisonment and fine aggrieved by which he had approached the Court of Appeal but the appeal was dismissed thus the instant appeal where leave to appeal was granted questioning whether the punishment granted by High Court was excessive. The counsel for the Accused- Appellant, Nihara Randeniya, stated that the Appellant was a first offender, was married and had school-going children and the only bread earner in the family further he was not challenging the conviction but just the quantum of the sentence.

The Court while dismissing the appeal observed that the persons who work in the government institutions when found guilty on criminal offences, plead ‘first offender’ as a mitigating factor where it is obvious that a person in government service cannot be a convicted criminal, therefore, plea of ‘first offender’ cannot be acceptable and Acts causing loss to state property especially at their institution cannot be pardoned or condoned. The Court also stated that where the current offence carries a maximum punishment of 20 years, the imposition of 5 years by the trial judge was reasonable. [Ranathunga Arachchilage Ranjith Chandrathilake v. Attorney General, SC Appeal 134 of 2019, decided on 18-12-2019]

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J. dismissed an appeal filed against the decree of prosecution passed in a civil suit. While dismissing the appeal the Court answered one substantial question of law — In a case of rejection of first suit on the ground that the same was premature, and not on merits; whether the finding rendered in the first suit would be binding on the parties as well as the trial Judge in the second suit on the ground of res judicata?

In the present case, the plaintiff had filed the first suit for possession of the suit property against her brothers-in-law based on the will of her father-in-law. However, the suit was dismissed on the ground that it was premature as the will was being proved in a different proceeding before the court. Subsequently, when the plaintiff filed the second suit, the trial court decreed her suit and granted a decree of possession. The defendants filed the present appeal thereagainst.

The defendants, represented by Rakesh Bhatkar, Advocate, argued that the matter was barred by the principle of res judicata as the first suit filed by the plaintiff had been dismissed. Per contra, V.S. Sawant instructed by P.M. Jadhav, Advocate appearing for the plaintiff submitted that since the earlier matter was not decided on merits, therefore, res judicata did not apply.

Explaining the law on the subject, the High Court observed: “It is not that every matter decided in a former suit, can be pleaded as res judicata in a subsequent suit. To consider a matter ‘res judicata’, one of the conditions is, the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. To support the plea of res judicata, it is not enough that the same matter shall be in issue. It is also important that the matter was heard and finally decided.

It was explained further: “The expression ‘heard and finally decided’ refers to a matter on which the Court, having exercised its judicial mind, has recorded a finding and arrived at a decision on a contested matter.”

Following the ratio of the Supreme Court decision in Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 and considering the facts of the present case, the High Court held: “since the rejection of the first suit on the ground that the same was premature and not on merits, the findings rendered in the first suit are not binding on the parties, as well as, on the learned trial Judge in the second suit on the ground of res judicata.” The question was answered accordingly and the appeal was dismissed. [Shrikant Waman Pawaskar v. Deepali Dinanath Pawaskar, Second Appeal No. 795 of 2005, decided on 08-03-2019]

Case BriefsForeign Courts

Supreme Court of Canada: This appeal was filed before a 5-Judge Bench comprising of Wagner, CJ. Abella, Cote, Rowe and Martin, JJ., against the judgment of the Court of Appeal of Newfoundland and Labrador.

Facts of the case were that one Mr. Normore was convicted for attempt to commit murder, uttering a threat to cause death and breaking and entering a place. His appeal against the above conviction was allowed by Court of Appeal. However, this appeal was filed by the Crown.

Supreme Court observed that trial court did not err in addressing a witness’s refusal to answer a question put to him by defence counsel. It was upon the discretion of the trial judge to take further steps in attempting to elicit an answer from the witness. Court found it proper on part of the trial judge to proceed to the main proceedings rather than using its discretion as the same was not found to have caused substantial wrong or miscarriage of justice. Therefore, the convictions were restored pursuant to Section 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.  [Queen v. Alex Normore, No. 37993, dated 17-10-2018]