DHARMAWANSA SILVA AND ANOTHER v. THE REPUBLIC OF SRI LANKA

034-SLLR-SLLR-1981-2-DHARMAWANSA-SILVA-AND-ANOTHER-v.-THE-REPUBLIC-OF-SRI-LANKA.pdf


CA Dharmawansa S iva aid Another v The Republic of Sri Lanka 'Rodrigo J.i 439
DHARMAWANSA SILVA AND ANOTHERv.
THE REPUBLIC OF SRI LANKA
COURT OF APPEAL
RANASINGHE. J. ROORIGO. J AND TAMBIAH. J.
C. A.10 11/80
H. C. COLOMBO 325/76.
OCTOBER 19. 20,21,27,28 & 29, 1981
Criminal taw – indictment for murder dying deposition — admission of evidence ofmotive in dying deposition — s.32!1) of the Evidence Ordinance.
The two accused appellants were indicted along with thirteen others >or murder on thebasis of membership Of an unlawful assembly and of having acted on the basis of acommon intention. The indictment against the 4th to the 13th accused was withdrawnand the 3rd accused was acquitted. The appellants were convicted of murder and senten-ced to death.
The evidence of the only two alleged eye witnesses being contradictory andunreliable, the prosecution case realty rested on a dying declaration of the deceasedrecoided by a Police Sergeant in which the two appellants were named as the assailantsand as motive was mentioned a previous clash at the temple.
Held
When a dying statement is pioduced. three questions arise for the Court. Firstly, whetherit is authentic. Secondly if it is authentic whether it is admissible in whole or in part.Thiidiy the value ol the whole Or part that is admitted.a
In regaid to authenticity the Sergeant's record was not fully borne out by the two•:ye witnesses. Fuither the statement was made in Sinhala and recorded in English bythe Scigeaut who was a Muslim. The burden was on the prosecution to establish the-umpetenc/ ol the Sergeant in Sinhalese. The Sinhala translation of the statement• ecorded by the Sergeant which went before the |ury had certain deficiencies.
A dying deposition is not inferior evidence but it is wrong to give it added sanctity.
Evidence of motive found in a dying declaration is not admissible under $. 32(11 ofthe Evidence Ordinance. To be admissible the evidence must be directly1 related to theattack and in addition proximate, that is, closely causally related.
Independent corroboration is not essential but cases may arise when the Judge isnot prepared to act on the other evidence as it stands even though, if believed, it wouldbe safe to sustain a conviction. In such an event the Judge may call in aid the depositionand use it to lend assurance to the other evidence and thus fortify himself in believingwhat without the aid of the deposition he would not be prepared to accept.
The first thing is to marshal the oral evidence and see how it stands but here theoral evidence and the dying statement itself were suspect. The genuineness of the dyingstatement was open lo grave doubt. Assuming it is genuine, the limited opportunity for■dentificalion. the possibility of the deceased acting on suggestion, and the possibilityalso of malicious implication by the deceased militate against acceptance of it as thetruth.
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t198U~ S l R
Quaere: is n nfCHss<»y to caution me j j-y tkjt a dying dtd3’a^cr, is evidence untestedby cross-e<dm.i di or '>
Casa* referred to
(1 • Perera v The Queen (1970) 7G N L R. 217. 219
The Queen r. Stanley Dias S. C. (C.C.A. M,notes of24.11.70)
The Queen v. Sathasivam 11953) 55 N.L.R. 2SS, 256.
Narayana Swamy y. Emperor A I.R. 193 P.C.47. 50.
15i Rex v Woodcock (1789) I Leach 500.
>6) Wright e. Littler 0761) 3 Burr 1244.
•7! Ahsandri y. The King 19J/i A C.220.
(8, R v. Vmcent Perera 0963) 65 N.L.R. 265.
191s v Asirwadan Nadar 0950) 51 N.L.R.322.
’10) H v. Justinapala 0964) 66 N.L. R. 409.
O 1) Weerappan y. TheState 09711 76 N.L.R.109
02) Somasunderam v. Queen 0971) 76 N.L.R. 10
T3) Palaniandy v. TheState 0972) 76 N.L.R. 145
041Tapinder Singh v State of Punjab A. /. R. 1970 S. C. 1566.
Bakshish Singh v. State of Punjab A.I.R. 1957 S.C.901
Pompiah r. Srare of Mysore A.I.R. 1965 S.C. 939
Kashmen Singh v. State of Madiya Pradesh A.I R. 1952 S. C.59.
Appeal Pom conviction by Jury m »ne High Court of Colombo
Oi. Colvin R. de Silva with N. V. de Si'va and Ranjan Mend is for accused-appellants
Asoka de Z. Gunawaidene, Senior State Cousel for the State.
Cvjr. adv vul;
November 18, 1981
RODRIGO, J.
The two appellants are the 1st and the 2nd accused who wereindicted together with thirteen others in the High Court ofColombo with (a) being, with others unknown, on 1st October1972 members of an unlawful assembly having the commonobject of committing the murder of Sunil Perera and, (b) being,with others unknown, members of the same assembly while oneor more members of that assembly committed the murder inprosecution of the aforesaid common object or such as membersof the same assembly knew to be likely to be committed inprosecution of that object and, (c) having committed the murderof the said Sunil Perera m furtherance of their common intentionto murder the said Sunil Perera.
After trial the Jury returned a unanimous verdict of guilty onall counts against the two appellants and a unanimous verdict ofnot guilty in respect of the 3rd accused also on all counts. Theother twelve accused, the indictments against whom were
CADharmawanta Silva and Another v. The Republic of Sri Lanka (Rodrigo, J.l 441
withdrawn by the prosecution at an early stage of the case, hadbeen discharged at that stage. Following upon the verdict theappellants were convicted on all counts-and each sentenced todeath on the second and the third counts and to six (6) monthsrigorous imprisonment on the first count. They have appealedfrom their convictions and sentences.
The prosecution case principally unfolded through twowitnesses who alleged themselves to be eye witnesses. They werePawarapala and Tudor, Pawarapala says that on the evening ofOctober 1st, 1972 he went with the deceased (Sunil) and Tudorand two others to the “Impala" Cinema at Welikada intending tosee the evening show therein. They were not lucky enough topurchase tickets for the show. So, they took the bus back toBattaramulla. From there they intended walking the rest of theway to Pelawatta which was their ultimate destination. Theywalked about half a mile. It was a motorable road. They thenreached the junction with Dharmodaya Mawatha. At this point, avan just passed them. It slowed down as it passed them butcontinued. From immediately behind the van, however, “the 1staccused and other accused" emerged shouting "Where is Sunil ?"Thereafter Sunil took to his heels. He ran in the direction ofPelawatta along the motorable road. All the accused gave chase.Pawarapala and Tudor also ran but behind the accused. At a pointabout 60 yards away from where they took off Sunil fell in themiddle of the road. It was close to a culvert. The accused werearmed. The first accused carried a sword. It was 3 feet long. Sodid the third. The sword he carried was equally long. The secondaccused carried a local battle axe called “keteriya" — a small axewith a short handle. The rest carried clubs. The accused set towork on the fallen Sunil. Sunil shouted “Please do not cut me."Then Pawarapala and Tudor stopped in their tracks. They saw theaccused (all the accused) cutting Sunil. Shortly thereafter five ofthe accused turned their attention to Pawarapala and Tudor. Thenit was their turn to take to their heels. So they ran along anarrow branch road. Having run some distance they halted to lookback. The accused were not to be seen. So they came back towhere Sunil first fell in the middle of the road. They then heardSunil groaning about 15-20 yards away in the paddy filTChsituated alongside the road. They also heard sounds of swordsstriking water. At this stage they decided that they should informthe Police. They walked to Pelawatta to make a telephone call.Not being successful, they took a bus to come to Battaramulla;They had to come back the way they went to reach Battaramulla.On their way back they noticed a Police jeep halted by the culvertnear which Sunil fell down and was attacked by the accusedearlier. They got out of the bus and went to the Police jeep.
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Sgt. Saleem was standing by the jeep. Pawarapala told thesergeant that "Sunil had been cut and injured and lying fallen inthe paddy field." He did not tell him (sergeant) who cut Sunil.Then the three of them went to the paddy field and lifted Suniland carried him into the jeep.
The sergeant gave Sunil first aid. Sunil was conscious and wasable to speak. The sergeant asked him (Sunil) what happened.Sunil said "Dharmawansa alias Suda and his brothers and otherscut me." Sergeant asked him why they did it. Sunil said "Onaccount of a row at Mayurapala Pirivena". This is all that Sunilsaid.
The deceased was then taken in the jeep to hospital where hedied about 8.30 in the same evening.
Statements were received from Pawarapala and Tudor at thePolice Station— Pawarapala's at 2.30 a.m. and Tudor's at 1.05 a.m.that same night.
This substantially is the narrative of events given by Pawarapa-la. The prosecution then discovered after Pawarapala concluded .his evidence or rather re discovered that Pawarapala had not in hisstatement to the Police mentioned the names of any one of theaccused from the 4th to the 15th (both inclusive) though he knewthe name of the 7th accused among them. He had not given adescription of any one of them either, though, at the trial he waspositive that it was the fifteen accused in the dock who composedthe group that attacked and killed Sunil and there was nobodyelse. He did not mention to the Sergeant when he met him by thejeep who attacked Sunil though he pointed out where Sunil layfallen at the time. There were persistent suggestions from thedefence to Pawarapala that he had not seen a thing and that hiswhole story was a tutored one, it having been fabricated at thePolice Station. It was also suggested that they were attacked by anunknown crowd whom they had antagonised at the ImpalaTheatre and who had followed them by the van that slowed downat Battaramulla and finally that he implicated the first accused onaccount of enmity against him arising from an incident at Mayura-pala Pirivena some two weeks earlier. The second and the thirdaccused, it was suggested, were implicated as being brothers of thefirst accused.
In this state of the evidence and.suggestions at the conclusionof Pawarapala's evidence, the prosecution led the formal evidenceof the medical officer in regard to the injuries sustained by thedeceased and moved for permission to withdraw the indictment
CA Dharmawansa Silva and Another v. The Republic of Sri Lanka (Rodrigo, J. I 443
against the 4 — 15th accused. The Judge and Jury were apprisedthat the other alleged eye witness Tudor cannot take the prosecu-tion case any further than this witness had taken it. On the specificground that this witness and the other witnesses had not mentio-ned the names or given a description of any of the accused fromthe 4th to the 15th accused in their statements, and, that theiridentification for the first time by these two witnesses was somefour months later from the dock at the Magisterial inquiry, theprosecution moved to withdraw the indictment against the 4th tothe 15th accused. The motion was allowed. These accused werethen discharged at this early stage. The prosecution was at pains,however, to assure the Jury that the two witnesses were regardedby the prosecution as truthful witnesses and that the withdrawalof the indictment was really on a technical ground.
The other eye witness Tudor then gave evidence. Inpurporting to support Pawarapala he actually weakened the casepresented through Pawarapala. He did not say what the firstaccused did after the fifteen accused gave chase to Sunil and Sunilfell. After he emerged with Pawarapala from hiding and came towhere Sunil first lay fallen, he noticed a car with lights on pullingup just beyond the culvert. The fifteen accused then came up tothe car from the paddy field where the witness had noticed them awhile earlier. He did not wait to see what was happening or happe-ned. He hurried away from the place with Pawarapala. Now, thiscar episode Pawarapala had not spoken to at any time. Thereafter,as Pawarapala testified, both of them returned by bus to the sceneof the attack.
There was still the evidence of Siripala. To his evidence I shallturn in its proper setting as he was not an eye witness. Theevidence of the two witnesses mentioned, if not wholly incredibleis totally inadequate for a reasonable Jury to find any accusedguilty of such a serious charge as that with which they have beenindicted. Besides, the withdrawal of the indictment I have alreadymentioned was not without its ripples. It was bound to affect theevidence of the two witnesses as regards the remaining accused.They had not mentioned who the attackers were to Sgt. Saleemat the first opportunity they got when they knew the names of atleast the first three accused and the 7th accused. Their conductafter witnessing the attack on Sunil was queer and strange. Stillmore strange, if not incredible, was the act of their runningbehind the pursuers risking an attack on themselves as well. Thereis no explanation as to why Pawarapala did not mention the arrivalof a car and its halting by the culvert. In his evidence Sgt. Saleemhas testified to the windscreen of the car being damaged when hecame there shortly after the incident. Sgt. Saleem or Inspector
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Terrence Perera did not find any traces of blood or signs of anystruggle on the spot where the alleged eye witnesses said theassault took place. All the evidence pointed to the assault havingtaken place in the paddy field. The deceased's clothes had beenremoved from the paddy field. Besides, the medical evidence didnot establish any injury that could have been caused by a violentattack by clubs though there were three minor abrasions on thebody of the deceased. No convincing motive has been establishedthrough these two witnesses against any of the accused. It wastherefore not surprising that the Jury unanimously returned averdict of not guilty in respect of the 3rd accused. What thenturned the scale against the first two accused, the appellants ?
The answer to the last question posed lies in the alleged dyingstatement of the deceased. A battle royal raged in the argumentbefore us for its admissibility, truthfulness and relevance by theprosecution on the one side and to the contrary by the defence onthe other side. I shall put down its contents as testified to bySgt. Saleem. ,
"This evening at about 7.30 Dharmawansa alias Suda and hiselder brother Premawansa with some others jumped towardsme. Suda and his brother Premawansa cut me with swords.Suda and others are angry with me. They got angry with mebecause of a clash at the temple. That took place about twoweeks prior to this incident. Read over and explained. He isunable to sign.
~’Admitted as correct."
Sgt. Saleem said that the deceased made his statement inanswer to a question by him as to what happened. He repliedin Sinhalese. Presumably, the question was also in Sinhalese.He wrote it down in English. What went before the Jury is theSinhala translation of this. We were shown the certified copy ofthe English record by Sgt. Saleem of the statement. In that recordthe word "Pelawatta" appears before the word "temple" (notDharmodaya Pirivena). It is lacking in the Sinhala version. Againafter the work "swords" is the statement "That is all." This toois not in the version that went’before the Jury.
When an alleged dying statement is produced, three questionsarise for the Court. Firstly, whether it is authentic. Secondly, if itis authentic whether it is admissible in whole or in part. Thirdly,the value of the whole or part that is admitted. I
I shall firstly address myself to the first. The statement waschallenged. It was suggested that this was fabricated by Sgt.
CA Dharmawansa Silva and Another v. The Republic of Sri Lanka (Rodrigo, J.l 445
Safeem together with witness Tudor at the Police Station. Thedeceased was bleeding profusely when he was brought to the jeep.He was alleged to have made the statement in the jeep. He hadbeen put down on the floor of the jeep with face downwards.He has been given first-aid by the Sergeant when brought to thejeep. He was naked when brought to the jeep. Some clothes hadbeen borrowed and wrapped round him to mitigate the bleeding.He was in very poor physical condition. He was conscious and ableto speak. The Sergeant would have the Jury believe that thedeceased could remember what happened well and clearly, that hecould remember the names of his assailants, their relationship toeach other and that he could speak intelligibly and convey histhoughts intelligently. The Jury had only the Sergeant's wordfor it and the evidence of Pawarapala and Tudor. The medicalevidence gave some tenuous support. The two witnesses, however,and the Sergeant differ with regard to what the deceased is'allegedto have said. According to Pawarapala, the deceased said "Dharma-wansa alias Suda and his brothers cut me." Tudor has said that thedeceased said "Dharmawansa, Premawansa and their crowd cutme".
It has been urged before the Jury in his address by the prose-cuting Counsel that the witnesses had testified after five years andthey should disregard discrepancies as there was broad agreementbetween them as to the contents of the dying statement. TheSergeant's record is reliable to ascertain what exactly the deceasedsaid. So it was submitted. The Sergeant evidently could not writeSinhalese. His competence to understand and interpret the state-ment made in Sinhalese was not established. It was submitted thatthe burden was on the prosecution to establish this. Not a singlequestion had been put to Sergeant Saleem towards satisfyingthe Jury that the Sergeant was equal to the task. There is nopresumption in favour of the prosecution on this point. Thereis no presumption that the Police Officer understands the languageof the person whose statement is recorded. It is the medicalevidence that the skull of the deceased had a 6" long injury whichhad extended downwards cutting the brain tissue. It had notdamaged the brain matter though. The medical witness also saysthat the deceased could have been unconscious (sic) at least foran hour. He had died within an hour of the incident. The Jurythen must have had considerable disquiet and misgiving as to theauthenticity of this dying statement and must have eagerlyawaited some circumstance to dispel this disquiet and misgiving orto confirm it. Since the Jury had brought in a verdict of guiltyagainst the accused-appellants we must assume that this circums-tance was forthcoming and was established. The question is whatwas it ? I shall return to this matter later.
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On the assumption that it was authentic the next considera-tion is one of its admissibility. The dying statement, it must beremembered, refers to the physical or external cause of death andto the motive for the assault. The part dealing with the actualattack and the identification of the assailants is undoubtedlyadmissible. There was no dispute on that. But it is argued that thepart that mentions the motive is not. Counsel for the prosecutionargued for its admissibility submitting that what is stated in thatpart by the deceased is a circumstance meaning an incident in thetransaction directly related to the occasion of death.
On this point, our attention was drawn to Pereta v. Queen1!11The learned Chief Justice has said,
"Learned Senior Crown Counsel who appeared for the Crownin appeal conceded that the statement of the deceased menconcerning this previous incident had been wrongly admittedin evidence at the trial. We had occasion recently in TheQueen v. Stanley D/as*2’ to refer to a similar improper admi-ssion of a deceased's statement, not permitted by s.32 of theEvidence Ordinance because it was not a statement as tothe circumstances of the transaction which led to the deathof the deceased."
It must be mentioned that the statement concerning theprevious incident has been excluded because in that case it was nota statement as to the circumstances of the transaction whichled to the death of the deceased. See the last sentence of thatparagraph.
A more helpful case on the point is The Queen v. Sathasi-vam.^ In that case a letter written by the deceased three weeksbefore her death addressed to the Supdt. of Police was sought tobe produced in evidence before the Jury as being relevant. It ismentioned "The learned Solicitor-General had first claimed thatthese statements are relevant and admissible under s. 32(1) of theEvidence Ordinance. In addition he argued that they were relevantto establish a suggested motive for the crime under s. 8(1) and/or(2) to prove conduct on the part of the deceased lady under s.8(2)read with s.11."
The letter is in these terms:—
"Jayamangalam"
7, St. Alban's Place,Bambalapitiya,
17th September, 1951.
CA Dharmawansa Silva and Another v. The Republic of Sri Lanka IRodrigo, J.)447
C. C. Dissanayake, Esqr.
Supdt. of Police, Colombo.
Dear Sir,
I am writing to you, as requested over the telephone to informyou that I have filed an action in the Colombo District Courtasking for a divorce from my husband Mr. M. Sathasivam on theground of desertion. He has been away in England and thesummons though issued has not yet been served. He will bearriving in Colombo per s.s. Himalaya on the 21st instant, and Iunderstand from his attorney that he intends to come to thishouse (which is mine) with his mother and reside here. In view ofthe pending divorce action this cannot be allowed, and I have beenadvised to refuse him admittance.
But, from my knowledge and experience of my husband, Ihave reason to fear that he may attempt to force his way into thehouse and use violence and cause a breach of the peace.
In this situation I need protection and I therefore request thatyou will instruct the Bambalapitiya Police to afford me the sameif I telephone to them. I have a telephone in.the house and thePolice Station is close by.
I may mention that I have my four young children in thehouse with me and I am also apprehensive on their account.
Yours faithfully,
Anartda Sathasivam.
Justice Gratiaen dealing with the claim of the Solicitor-Generalsaid this: —
"Can it be said that, in the facts of this particular case, P24contains any statements 'as to the circumstances of thetransaction which resulted in' the deceased's death on 9thOctober, 1951 ? Even if one gives those statements a meaningwhich is most favourable to the Crown, they amount at bestto mere 'general expressions indicating fear or suspicion of(the prisoner) and not directly related to the occasion of (her)death'. Evidence of that kind has expressly been ruled to beinadmissible by Lord Atkin in the course of his judgment inNarayana Swamy v. Emperor^ where the Judicial Committeeof the Privy Council had occasion to make an authoritativepronouncement as to the limits within which the applicationof s. 32(1) of the Evidence Ordinance must be confined. Thecircumstances to which the deceased's statements relate must.
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said Lord Atkin, 'have some proximate relation to the actualoccurrence.' Following this principle, I am satisfied that thereception of the proposal evidence under s.32(1) would notbe justified."
Judged by this criteria laid down in the preceding passage, isthe,statement in question in this case admissible under s.32(1)?The incident had happened two weeks earlier. The deceased doesnot say that he was assaulted because of this incident. All thathe says is that they (the persons mentioned) are angry over theincident. A man that assaults may be angry with the victim, butit is not every man angry with a person that assaults him. It hasbeen said by Lord Atkin that, "the circumstances of the transac-tion" is less wide than any "circumstantial evidence" and morenarrow than res gestae. Res gestae is defined in s. 6 of our Evide-nce Ordinance, —see the Commentary on Evidence Ordinance byRatnalal & Takore. In this Section the illustration (a) does nottake in anything uttered by the victim or the assailant except inthe immediate context of the beating and murder. Assuming theincident to be a circumstance having some bearing on the attack,it must be directly related to the attack and in addition proximate.Proximate means closely causally related – See Black's Law Dictio-nary. Counsel for the defence however did not press his objectionsto the admissibility of this part of the dying statement since as hesubmitted he could make use of it to his advantage. He argued thatthis disclosed enmity on the part of the deceased towards the firstaccused in particular and the second accused as well. Such enmitywould therefore provide a malicious motive to implicate thefirst and second accused. A reasonable Jury would therefore notaccept its truthfulness even though independent corroboration isnot a requirement for its acceptance. We cannot find fault with thissubmission and in the circumstances it is not necessary for us toexpress a view as to whether this part of the dying statementshould have been excluded. Viewed thus there remains for consi-deration then the value of the dying statement.
"The tongues of dying men enforce attention like deep har-mony; where words are scarce, they are seldom spent in vain;for they breathe the truth that breathe their words in pain."
The earlier theory of the common law has been stated by EyreC. B. —Rex v. Woodcock1^to be that,
"The general principle on which this species of evidence isadmitted is that they are declarations made in extremity, whenthe party is at the point of death, and when every hope of thisworld is gone; when every motive to falsehood is silenced and
CA Dharmawansa Silva and Another v. The Republic of Sri Lanka (Rodrigo, J.)449
the mind is induced by the most powerful considerations tospeak the truth; a situation so solemn and so awful isconsidered by the law as creating an obligation equal to thatwhich is imposed by a positive oath administered in a courtof justice."
The origin of the rule, which forms an exception to therule against heresay evidence is traceable to the judgment ofLord Mansfield in Wright v. Littler.*61
This principle had been applied in Alisandri v. King*7' wherethe dying statement consisted of a nod of assent interpreted tomean an answer in the affirmative to a question whether thesuspect was the murderer. A verdict of guilty was returned basedon the nod and without corroboration.
In R. v. Vincent Pereradying declarations were held notto be inferior evidence. The view was taken, however, that it wasequally wrong to give it an added sanctity.
In the meantime in R. v. Asirwadan Nadar19* failure of the trialJudge to caution the Jury that dying depositions are not tested bycross-examination and that therefore it is a minimising factor washeld to vitiate the verdict and a re trial was ordered. This was byGratiaen, J.
In R. v. JustinapalaT. S. Fernando, J. agreed with theview taken by Gratiaen, J in R. v. Asirwadan Nadar (supra).
This trend continued through Weerappan v. The Sfafe*11*(H. N. G. Fernando, C. J.); Somasunderam v. Queen*12> (Samara-wickrema, J).
But there was a shift of .emphasis in Palaniandy v. TheSfafe*13* where Alles, J distinguished the line of cases whichrequire the Jury being cautioned on the ground that in those casesthe dying depositions contained lengthy statements. In the casebefore him the statement of the dying boy consisted of a simpleanswer to a simple question immediately after the injury. Even so,he did not rule out the need for corroboration.
Alles, J's flexible attitude finds support in a judgment in theIndian Supreme Court in Tapinder Singh v. State of Punjab^^which observed that inasmuch as a dying declaration is admittedon the principle of necessity an obligation lay on the Court to beon its guard to scrutinize all the relevant surrounding circums-tances. Qua, J said that
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"If the declaration is acceptable as truthful then even in theabsence of other corroborative evidence it would be opento the court to act upon the dying declaration and convict theappellant stated therein to be the offender. An accusation of adying declaration comes from the victim himself and if it isworthy of acceptance then in view of its source the court cansafely act upon it."
For similar views see Bakshish Singh v. State of Punjab ,15*Pompiah v. State of Mysore.(161
and
Inclined as we are to prefer the flexible attitude to dyingdeclarations, on obligation is cast on the Court to scrutinise allthe relevant circumstances — "First, to marshall the evidenceagainst the accused excluding the dying deposition altogether andto see whether, if it is believed, a conviction could safely be basedon it. If it is capable of belief independently of the deposition,then of course, it is not necessary to call the deposition in aid.But cases may arise where the Judge is not prepared to act on theother evidence as it stands even though, if believed, it would besafe to sustain a conviction. In such an event the Judge may callin aid the deposition and use it to lend assurance to the otherevidence and thus fortify himself in believing what without theaid of the deposition, he would not be preoared to accept." SeeKashmeri Singh v. State of Madiya Pradesh*17' (I have substituted'deposition' for'confession' in this passage).
So the first thing, is to marshall the oral evidence and see howit stands but in the circumstances of this case, as I have describedearlier, an examination of the oral evidence makes such evidenceand the dying statement itself suspect. Its genuineness is open tograve doubt. Assuming it to be genuine, when regard is had to thetime of the evening when the attack took place, the fact that thedeceased started running away the moment he heard his namebeing shouted, to the surprise of the attack and the number of theassailants involved and to the possibility of the names beingmentioned by the deceased not on his own initiative but on beingsuggested by Tudor and Pawarapala and also to the possibilityof malicious implication by the deceased, its truthfulness is notworthy of ready acceptance. Even to assume the genuineness, oneis constrained to accept as true the narrative given by Tudor andPawarapala. But the account of the events given by these twowitnesses leave many pertinent questions unanswered. So that inthe net result we find the oral evidence and the dying deposi-tion very unsafe to base a conviction on. I
I remarked that there must have been some circumstance
CA Dharmawansa Silva and Another v. The Republic of Sri Lanka (Rodrigo, J.l 451
which made the Jury turn the scale against the accused in view ofthe grave doubts in which the deposition and the oral evidence areshrouded. I must now turn to it. Now, the evidence was led ofwitness Siripala who spoke of a row at Mayurapada templebetween himself and the 1st accused. The deceased on that occasion had noticed the row while he was elsewhere and had come tothe scene and separated the two. Thereafter the deceased hadtaken Siripala away but the 1st accused had not forgiven Siripalaand had followed the deceased and Siripala and had addressed athreat to the two of them. It was reasonable to infer that thethreat was directed only to Siripala but the State Counsel arguesthat it was directed to both and submits that is how the Jury musthave understood it. This was two weeks earlier. On the evening ofthe day in question there had been a violent clash between Siripa-la and the 1st accused in the company of unidentified friends ofthe 1st accused. This had been a short time before the attack onthe deceased. The 1st accused in his dock statement admitted thatthere was an incident at the temple premises on the occasion of afestival in that place. He said on this day the deceased was alsoinvolved in this incident but merely as'a peacemaker and accor-ding to the dock statement the affair was settled.
The Jury undoubtedly must have been greatly influenced bythis piece of evidence and must have thought that this affordedthe corroboration for the allegation of enmity in the dying state-ment and of the names of the assailants mentioned therein.
The reception of-this piece of evidence before the Jury canthus be seen to hav^made.the difference between an acquittal anda conviction. The incident itself belies the allegation of the firstaccused being angry with the deceased, notwithstanding theState Counsel's statement to the contrary. In any event, theincident is of a dubious nature in regard to it having provided amotive to the first accused to have committed this offence. Butthe Jury would not have weighed this piece of evidence nicelyenough to have been able to appreciate its very tenuous relevance,if any. Instead, they had evidently seized on it to convict theappellants.
We are. therefore, of the view that a reasonable Jury shouldhave brought in a verdict of acquittal in all the circumstances ofthis case. We, accordingly set aside the verdicts, convictions andthe sentences and substitute therefore a verdict of acquittal ofboth accused appellants.
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The appeal is accordingly allowed and the appellants areacquitted.
RANASINGHE, J.
I agree.
TAMBIAH, J.
I agree.
Convictions set aside and accused acquitted.