010-SLLR-SLLR-2010-V-2-LUKSHMAN-vs.-REPUBLIC-OF-SRI-LANKA.pdf

She succumbed to the injuries inflicted to her chest andabdomen.
’ Thereafter the deceased was admitted to the hospital.

When they reached the police station sergeant Sirisenacame to the three-wheeler. Then the deceased said to
sergeant Sirisena that
Thereafter

deceased and said'
CA
Lukshman vs. Republic of Sri Lanka
(Upaly Abeyrathne, J.)
155
the three-wheeler and questioned the deceased as to whathappened. Then the deceased made the said dying declarationand he proceeded to take it down. Thereafter sergeant Siriseneadvised the persons who accompanied the deceased to admitthe deceased to hospital.
Hence it is understandable from the said evidence thatsergeant Sirisena’s said visit was not made in order to recordthe dying declaration of the deceased. At the cross examinationsergeant Sirisena said that since the deceased was in acritical condition with heavy bleeding he promptly proceed-ed to take down the dying declaration in a piece of paperand thereafter he entered the dying declaration in the CNB.In the aforesaid circumstances I do not find any irregularitycaused in the course of the recording of the dying declarationwhich would be prejudicial to the substantial rights of theAppellant. When the authenticity of the dying declarationis not blameworthy it is admissible evidence against theAppellant.
In the case of Dharmawansa Silva and Another vs.The Republic of Sri Lankaw The evidence of the only twoalleged eye witnesses being contradictory and unreliable, theprosecution case really rested on a dying declaration of thedeceased recorded by a police sergeant in which the twoappellants were named as the assailants and as motive wasmentioned a previous clash at the temple. It was held that“When a dying statement is produced, three questions arisefor the court. Firstly, whether it is authentic. Secondly if it isauthentic whether it is admissible in whole or in part. Thirdlythe value of the whole or part that is admitted.”
Sergeant Sirisena’s evidence was corroborated by theevidence of Mohamad Jifry. There were no contradictions oromissions marked from the evidence of sergeant Sirisena.
156
Ski Lanka Law Reports
12010J2 SRIL.R.
I regret to note that I cannot agree with the saidsubmission. The said passage in my view does not indicateany inference which would be prejudicial to the substantialrights of the Appellant. First sentence of the passage clearlydenotes that the learned High Court Judge was possessedof the presumption of innocence. It is to be noted that afterthe conclusion of the case for the prosecution the Appellantexercising his legal rights remained silent in the dock.Therefore the learned High Court Judge may have consid-ered the applicability of the dictum laid down in the caseof R vs. Lord Cochrase and other*2'. There Lord Ellenboroughheld that “No person accused of crime is bound to offer anyexplanation of his conduct or of circumstances of suspi-cion which attach to him; but, nevertheless, if he refuses todo so, where a strong prima facie case has been made out,and when it is in his own power to offer evidence, if suchexist, in explanation of such suspicious circumstanceswhich would show them to be fallacious and explicableconsistently with his innocence, it is a reasonable andjustifiable conclusion that he refrains from doing so onlyfrom the conviction that the evidence so suppressed or notadduced would operate adversely to his interest.”

Hence it can be concluded that sergeant Sirisena is atruthful witness whose evidence can be accepted.
The Learned President’s counsel submitted that thefollowing passage in the judgment is in violation of thepresumption of innocence of the accused appellant. Namely;
CA
Lukshman vs. Republic of Sri Lanka
(Upaly Abeyrathne, J.)
157
In the case of Rajapaksha Devage SomarathnaRajapaksha And Others vs. Attorney General3) JusticeBandaranayake observed that “With all this damningevidence against the Appellants with the charges includingmurder and rape the Appellants did not offer anyexplanation with regard to any of the matters referred toabove. Although there cannot be a direction that the accusedperson must explain each and every circumstances relied onby the prosecution and the fundamental principle being thatno person accused of a crime is bound to offer any explanationof his conduct there are permissible limitations in which itwould be necessary for suspect to explain the circumstancesof suspicion which are attach to him.”
Hence in the light to the judicial decisions I hold that thesaid passage in the judgment has not caused any prejudiceto the substantial right of the Appellant.
The learned High Court Judge in coming to hisconclusion has properly evaluated the evidence havingconsidered, the contradictions marked and the omissionshighlighted at the trial. I am of the view that there is nonecessity to interfere with the conviction of the Appellant.I therefore affirm the conviction and the sentence imposedupon the Appellants.
The appeal of the Appellant is dismissed.
SISIRA DE ABREW, J. – I agree.
Appeal dismissed.