– meaning that Lionel poured it
and gave it to him and he drank it. According to the witness, as 100far as she knew there was no displeasure between her son andthe accused and the deceased had no reason to commit suicide.
In answer to a question posed by Court the witness has said that
at the hospital the deceased said

When she asked the deceased if she did not drink

what happened he said
The witness

has stated that the deceased and the accused used to drink alco-hol at the deceased's house.
In cross examination the witness was asked whether, when shegave evidence in the Magistrate's Court, she said that she heard her 110
son crying out

or something like that. Her reply was that

what the deceased said was
Then she was asked whether she told the Magistrate's Court

To this question her reply was

substantial difference between her evidence in chief and the answersgiven in cross examination regarding the exact words uttered by the 120deceased when he was lying fallen after ingestion of a corrosive sub-stance.
On 5.6.1991 at 10.00 a.m. (nearly 13 hours after the ingestion ofthe corrosive substance) police sergeant Prematilake attached to theNagoda Hospital police post has recorded the deceased's statementat the hospital. According to his evidence at the time he questionedthe deceased before recording the statement, the latter was able tospeak and was in his proper senses. The statement of the deceasedwas produced in evidence marked P3. In his statement the deceased
Thus there is a
the Magistrate's Court as D1 (proceedings of 31.8.99 commencingfrom 12.55 p.m. page 6) She has again repeated that the deceased

Then the defence marked what she told

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[2004] 1 Sri L.R
has stated that on 4.6.1991 around 8 p.m. the four accused brought 130a bottle of arrack to his house and invited him for a drink. Then hebrought a glass and gave it to Lionel (the accused-appellant) whofilled it and gave it to him and he took the glass and poured its con-tents straight to his throat. When he felt the burning sensation in histhroat he realised that they have given him acid and not arrack. Thenhe shouted out ®o <^83 gstezoi His mother came towards the frontof the house and then the four accused ran away. The deceased hasstated that he thought that he was given acid because he had anargument with Lionel at a wedding some time back. –
Police have visited the scene of the alleged offence (deceased's 140house) three days after the incident. They have not found any con-tainer or a jug in the deceased’s house.
Having considered the three dying declarations said to have beenmade by the deceased the trial Judge has come to the conclusion thatthe glass or the jug containing acid had been given to the deceasedby the appellant. I have already pointed out that the deposition of thedeceased's mistress has been wrongly received in evidence by thetrial judge. We do not know and we have no way to ascertain to whatextent the trial judge's mind has been influenced by this inadmissibleevidence. The trial judge also has failed to properly consider the effect isoof the different statements attributed to the deceased by his mother.According to her, the very first statement made by the deceased was
These two statements cannot be reconciled. However in view of thelearned trial Judge's acceptence of the deceased's mistress’ evidencethe trial judge has not attached much importance to this apparent con-tradiction. •
It also appears that the learned judge has attached some impor-tance to an opinion expressed by the doctor to the effect that there 160were no signs to indicate that the corrosive substance has beenforcibly administered to the deceased but has consumed it due to
a doctor could scientifically give such an opinion. He certainly is com-petent to say whether there were signs, compatible with forcibleadministration of the substance or not. However he cannot saywhether the corrosive substance has been voluntarily and deliberate-

the deceased said was
But under cross-examination she has said that what

I cannot see how

Lionel v The Attorney-General
(Ameratunga, J.)
ly taken with the knowledge of the real nature of the substance orwhether it has been taken in ignorance of the real nature of the sub-stance. For instance if a person deliberately takes a corrosive sub-stance with a view to commit suicide, the burn injuries sustained byhim cannot in any way differ from the injuries sustained when the sub-stance is taken in ignorance of the real nature of the substance. Insuch a situation the real reason for the ingestion of the corrosive sub-stance is a matter within the peculiar knowledge of the person whohas ingested the substance. In this case the opinion expressed by thedoctor that the substance had been taken in ignbrance of the realnature of the substance is not an opinion the doctor could haveexpressed on any scientific basis.
Thus it is not an expert opinion but a mere guess and as such it isnot an opinion a court should have considered at all. However as Ihave already stated above it appears that the trial judge had placedreliance on this item of evidence in coming to the conclusion that thedeceased has ingested the corrosive substance without knowing thereal nature of the substance.
The trial judge has also relied on the accused’s failure to visit thehospital to see the deceased as an item of evidence of the subse-quent conduct of the accused. It is implicit from the trial judge’s rea-soning that they did not visit the hospital to see the deceased due totheir awareness of their guilt. The evidence that the accused did notvisit the hospital to see the deceased came from the evidence of themother of the deceased. There was no evidence that she was with thedeceased from the time of his admission to the hospital upto the timeof his death. Evidence relating to the accused’s failure to visit thedeceased could have come only from a person who was continuous-ly with the deceased from the time of the latter’s admission to the hos-pital upto the time of his death. Even if there is such evidence, theaccused’s failure to visit the hospital could have been due to reasonsother than the consciousness of guilt for instance the embarassmentcaused due to a wrong accusation.
The trial judge has also come to the conclusion that when thedeceased was crying in pain after ingesting the corrosive substancethe accused have fled from the scene due to their complicity in theincident. The deceased in his statement has stated that when hismother came the four accused ran away. However the deceased’s
Sri Lanka Law Reports
[2004] 1 Sri L.R
have exposed him to a possible charge of attempted suicide. In sucha situation as a way out a person could have attributed the act tosome other person to exculpate himself. The learned trial judge hasfailed to consider this aspect when he considered whether thedeceased could have had a motive to falsely implicate the accused.
In this case the trial judge has erroneously admitted the depositionof the deceased’s mistress. It appears that his mind was substantiallyinfluenced by her evidence. If he has excluded her evidence – as he 230should have done – he was left with the evidence of the deceased’smother as to what her son told her. There is a serious discrepancy inher evidence about the exact words used by the deceased when shefirst spoke to him. The trial judge has not paid much attention to thisdiscrepancy – perhaps due to the impression created in his mind by theevidence of the deceased’s mistress. We are unbale to decide whatreliance the trial judge could have placed on the deceased’s mother’sevidence if he has considered her evidence without being influencedby the deceased’s mistress’s evidence.
The absence of signs to indicate forcible administration of the cor- 240rosive substance was compatible with voluntary ingestion as well asadministration of the substance by deceit. The statement attributed to
mother has not seen the accused running away from the scene.
The prosecution has called Jayasena who first came to thedeceased’s house on hearing the cries of distress. The prosecutionhas treated him as an adverse witness. He has stated that on the pre-vious day there had been a quarrel between the four accused and the 210deceased. The prosecution had not been able to contradict this evi-dence. This supplies a motive for the accused to administer a corro-sive substance to the deceased. But motive is a double edgedweapon. The deceased also could have had a reason to implicate theaccused due to this reason. The learned trial judge had failed to con-sider this aspect when he considered whether there was any motivefor the deceased to falsely implicate the accused. There is also ano-ther matter he should have considered in relation to the deceased’smotive. The evidence in the case is that the deceased mother neverthought that the deceased would die.220
If the deceased voluntarily took the corrosive substance as his first
indicate – a possible chance of survival would

Lionel v The Attorney-General
(Ameratunga. J.)
the deceased QsJa>decD2n SE©d is compatible with voluntary ingestion.The trial judge has not considered this aspect. If the deceased has infact stated Oa5s>deros> SSQo the trial judge should have consideredwhy he changed this version subsequently.
A detailed and careful consideration of the matters set out aboveshould have been necessary in a case depending solely on a dyingdeclaration contrary to the very first statement said to have beenmade by the deceased. We are unable to say whether the trial judgecould have come to the same conclusion if he had carefully consid-ered the matters set out above. If he had a reasonable doubt aboutthe correctness of the statement made to the police by the deceasedthe accused should have been entitled to the benefit of it and in sucha situation a court could not have legitimately expected an explana-tion from the accused.
Taking into consideration all those matters it is our consideredview, that it is unsafe to allow this conviction to stand. Accordingly weallow the appeal, set aside the conviction and acquit the accused-appellant.
FERNANDO, J. – I agree.
Appeal allowed.