010-SLLR-SLLR-2010-V-2-LUKSHMAN-vs.-REPUBLIC-OF-SRI-LANKA.pdf
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LUKSHMAN VS. REPUBLIC OF SRI LANKACOURT OF APPEALSISIRA DE ABREW. JUPALY ABEYRATNE. JCA 17/2005
27, 28, 29, 30 MARCH 2009
Penal Code-Murder—Dying declaration- When Could it be admitted.?Presumption of Innocence – Ellenborough principle
The accused-appellant was convicted and sentenced to death – for themurder of one F. In appeal it was contended that, the dying declarationshould not have been accepted since the Police witness has failed toproduce the piece of paper in which he noted the dying declaration andthat the accused did not offer an explanation.
Held
Where a dying statement is produced three questions arise for theCourt. Firstly whether it is authentic. Secondly if it is authenticwhether it is admissible in whole or in part. Thirdly the value ofthe whole or part that is admitted.
Sgt-Sirisena’s evidence was corroborated by the evidence ofothers. There were no contradictions or omissions marked fromthe evidence of Sirisena – He is a truthful witness where evidencecan be accepted.
Per Upaly Abeyratne, J.
“After the conclusion of the case for the prosecution the appellantexercising his legal rights remained silent in the dock, thereforethe High Court Judge may have considered the applicability laiddown in R vs. Lord Cochrane and others”.
APPEAL from the judgment of the High Court of Gampaha.
CA
Lukshman vs. Republic of Sri Lanka
(Upaly Abeyrathne, J.)
153
Cases referred to:-
Dharmawansa Silva and another vs. Republic of Sri Lanka – 1981- 2 Sri LR 439
R vs. Cochrane and others -1814 Gurneys Report – 479
Rajapaksha Devage Somaratne Rajapaksa and others vs. A.G. -2010-2 Sri LR 113
Tirantha Walalttadda PC with Indica Mallawaratchi for accused-appellants.
S. Thurairajah DSG for respondent.
June 23rd 2009UPALY ABEYRATHNE, J.
This is an appeal preferred against the conviction andsentence imposed upon the Accused Appellant (hereinafterreferred to as the Appellant) by the learned High Court Judgeof Gampaha date 24.02.2005. The Appellant in this case wasindicted in the High Court of Gampaha for having commit-ted murder of a woman named Abdul Hannan Nabisha aliasFarthima. After trial the Appellant was found guilty for thesaid offence and sentenced to death. Being aggrieved by thesaid conviction and sentence the Appellant preferred theinstant appeal to this court.
At the hearing of this appeal, the learned President’sCounsel for the Appellant submitted that the dying declarationof the deceased cannot be accepted since the witnesssergeant Sirisena has failed to produce the piece of paper inwhich he noted the dying declaration.
I now deal with the said submission. According to theevidence of Mohomad Safi Mohomed Jifry, who was an eyewitness to the incident, the deceased who was his mother’ssister (aunt) had a vegetable stall near his house. On
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21.01.2000, at about 9.30 a.m. while the witness was in hisshop he heard a family voice. He recognised that voice as hisaunt’s voice. On his way to inquire about the voice he againheard the same voice. He saw the appellant was pulling outsome object from his aunt’s abdominal area. At that time thewitness was about 3 feet away from the place of the incident.He identified the person who attacked his aunt as SarathLuxman (the appellant). Therefore the appellant got on to amotor cycle, raised his hand with the object he attacked the
he left the place of the incident. The witness noticed the objectwhich was in the appellant’s hand as of a knife. The witnessinstantly attended to his aunt, put her in to a three-wheelerand rushed to the police station. On their way to the policestation the deceased said to the witness that “Locki stabbedme with a knife.”
of paper and entered them in the crime book (CNB). TheCNB was produced before court and has been subjected tocross examination. Paragraph 113 contained the said dyingdeclaration. It was further revealed from the evidence thatwhile the three-wheeler was halted in the police station,sergeant Sirisena upon the instruction of the OIC went to
The prosecution is mainly based on the dying declarationof the deceased. Sergeant Sirisena in his evidence testifiedthat he went to the three wheeler and questioned the
He took down what the deceased said in a piece
deceased. She said
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'
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Lukshman vs. Republic of Sri Lanka
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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.
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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;
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Lukshman vs. Republic of Sri Lanka
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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.