SIRIMAXE, J.—Siriscna v. The Queen
[Court of Criminal Appeal]
1989 Present : n. N. G. Fernando, C.J. (President), Sirimane, J., and.Weeramanfry, J.
R. M. SIfUSENA, Appellant, and THE QUEEN, Respondent
C. C. A. Application No. 25 of 1969
S. C. 13/1968—HI. C. Kalmunai, 30852
Trial he]ore Supreme Court—Verdict of jury based on evidence of accomplice—Circumstances when it may be regarded as unreasonable.
A verdict cannot bo said to bo reasonable if it is based on tho evidence of anaccomplice which is not only uncorroborated, but is also shown by other credibleevidence relied on by tho prosecution to bo probably untrue.
^lPPEAL against a conviction at a trial beforo the Supremo Court.T. S. P. Senanciyake (assigned), for the accused-appellant.
R. de Fonseka, Senior Crown Counsel, for tho Crown.
Cur. adv. vult.
May 25, I960. Sirimane, J.—
The appellant, who was charged with 1 lie murder of one Axnaris,was found guilty of tho lesser offence of culpable homicide not amountingto murder by a divided verdict (5 to 2) of tho jury.
The facts shortly were, that the deceased left his houso on tho nightof ISth of Fcbruar}'-, 19G7. On the 28th of February his mistress AliceNona made an entry at tho police station that tho deceased had notreturned.
In about Juno that 3'ear, on certain information that tho police hadreceived from a son-in-law of tho deceased, some skeletal remains werefound by a stream some 300 3-ards from a “ kamatha ” belonging to thoappellant’s father. Tlioro was evidence that theso bones had firstbeen buried in this "kamatha” and later removed by tho appellant’sfather and brother to the place whore they 'were discovered.
The jury has found, and there is evidence to support that finding,that these bones woro the skeletal remains of tho deceased Amaris,and the medical evidence proved that death had probablj7 resultedfrom a blow on tho head with a blunt weapon.
Tho prosecution called as one of its witnesses Alice Nona, tho mistressof tho deceased. According to her evidence, tho appellant, onePinchappu and the witness Wijayadasa came to their houso on thenight of ISth February 1967, and theso threo together with her husbandsmoked ganja till late in tho night and all of them left together.
SIRIMANE, J.—Sirisena v. The Queen ■
According to her the time was roughly around 1 a.m. On the nextday the appellant and the two others returned without her husbandand, on her questioning thorn, the appellant said that the deceasedhad gone to Kurunegala. The prosecution relied on this ovidonco,and there was no suggestion that she was anything but a truthful witness.This evidence makes it quite clear that Wijayadasa was in the companyof the deceased till very late, on the night that ho disappeared.
Some evidence of a motive against the appellant-, which the prosecution,sought to establish, was too nebulous to bo of any value. It was suggestedthat the deceased was sexually intimate with his stop-daughter, a marriedwoman namod Seelawathie, in whom tho appellant <c was interested ",to use tho words of Alice Nona, who also said that she had told theappellant about this relationship between the deceased and Scelawathio.But the evidence was quito definite that tho appellant in no way resentedthe deceased’s behaviour, and that the two of them continued to boquito friendly even after the information was convoyed by Alico Nonato the appellant.
The only evidence to connect tho appellant with the death of thedeceased, was the evidence of Wijayadasa. -Ho said in evidence thatwhen he was passing the appellant’s father’s ‘'kamatha ” about 0 p.m.he saw the appellant and another man, whom he did not idontifystanding bosido a person who lay fallen with his face downwards on tho“ kamatha " and that the appellant carried a w eapon which, too, liecould not identify. Ho also added that tho appellant tlircatencd liim.He denied that he had gone to tho deceased’s house that night with theappellant and Pinchappu. Ho cloniod that ho had smoked ganja withthe deceased, and that he left in tho company of the deceased and theothers late that night. Ho denied that lie returned next morning inthe company of tho other two without the deceased. It is clear that theevidence of Wijayadasa and Alice Nona cannot stand together.Wijayadasa had made his.statement to tho police in Juno after thodiscovery of the bones. He admitted that before be made that statement,the police, who apparently treated him as a “ suspect ” had assaultedhim and asked him “ to make a statement as they wanted ’’.
Tho learned Judge rightly directed the jury to treat him as anaccomplice and to look for corroborat ion of his ovidonco. Par fromthcro being any corroboration, his ovidonco was contradicted at everymatcrial point by tho cviclonco of Alice Nona.
A verdict cannot be said to bo reasonable, if it is based on tho evidence .of an accomplice which is not only uncorroborated, but is also shown byother credible evidonco relied on by tho prosecution to bo probablyuntrue.
Wo were of tho view that tho verdict cannot bo supported, having-regard to tho ovidcnco led in tho caso. We, therefore, quashed theconviction and acquitted the appellant.
R. M. SIRISENA, Appellant, andTHE QUEEN, Respondent