018-SLLR-SLLR-2010-V-2-SAMANTHA-vs.-REPUBLIC-OF-SRI-LANKA.pdf
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Sri Lanka Law Reports
1201012 SRI LR.
SAMANTHA VS. REPUBLIC OF SRI LANKACOURT OF APPEALSISIRA DE ABREW, J.
ABEYRATNE, J.
CA 138/2005HC KALUTARA 178/02
Penal Code – Murder – Establishing a case on circumstantialevidence – Duty of Judge – Inference of guilt – Beyond reasonabledoubt?
The accused-appellant was convicted of the murder of one W andsentenced to death. It was contended by the accused that theprosecution failed to prove the case beyond reasonable doubt.
Held
In a case of circumstantial evidence if an inference of guilt is tobe drawn against the accused such inference must be the oneand only irresistible and inescapable inference that the accusedcommitted the crime.
It is the duty of the trial Judge to tell the jury that such evidencemust be totally inconsistent with the innocence of the accused andmust only be consistent with his guilt.
APPEAL from the judgment of the High Court of Kalutara.
Cases referred to:-
K vs. Abeywickrema 44 NLR
K vs. Appuhamy 46 NLR
Podi Singho vs. K – 53 NLR 49
Razick Zarook PC with Rohana Deshapirya for accused-appellant.Jayantha Jayasooriya DSG for respondent.
Samantha vs. Republic of Sri Lanka
(Sisira De Abrew, J.)
237
CA
February 20th 2009SISIRA DB ABREW, J.
The accused-appellant has not been produced by thePrison Authorities. Mr. Razick Zarook President’s Counselappears for the accused-appellant. Heard both Counselin support of their respective cases. The accused in thiscase was convicted for the murder of a man namedNanayakkarage Don Weerasingho and was sentenced todeath. This appeal is against the said conviction and thesentence. The prosecution relied upon the following items ofevidence to prove the case:
A pair of slippers alleged to have been given by oneSujeewa to the accused was found near the dead body.
A torch belonging to the deceased and a knife wererecovered in-consequence of a statement made by theaccused.
In the night where the deceased went missing, theaccused put his arm round the shoulder of the daughterof the deceased who was going home.
In the night where the deceased went missing, theaccused – appellant went to one Jayasiri’s house andasked a knife to cut a leaf called Habarala which isnormally used as an umbrella to prevent from being wetin the rain.
According to the prosecution case on 28th June 1992the accused-appellant took a pair of slippers from oneSujeewa. The prosecution tried to prove that this pair ofslippers was found near the dead body of the deceased. Atpage 97 of the brief Sujeewa could not identify the pair of
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slippers produced at the trial as the pair that was removed bythe accused-appellant about 6 years ago. We therefore hold theidentification of the pair of slippers was not proved beyondreasonable doubt and that the same cannot be considered asan incriminating item of evidence against the accused.
According to the prosecution case the deceased personused to carry a torch and an umbrella when he went to pickup the daughter. This umbrella was never found throughoutthe investigation at any place relevant to the case. Theinvestigating police officer in his evidence stated that herecovered a torch in consequence of a statement made bythe accused-appellant. But this torch was not properlyidentified by Siriyawathie, the wife of the deceased andSumitra, the daughter of the deceased. According toSiriyawathie, the colour of the torch is red, vide at page 73of the brief, but according to Sumitra the colour of the torchis green. Jayasiri in his evidence says that on the fatefulnight he met the deceased around 7.00 p.m. and henoticed the deceased carrying a torch in red colour. Inview of the serious contradiction with regard to the colourof the torch, we are of the opinion that the identificationof the torch has not been proved beyond reasonabledoubt and therefore the same cannot be considered as anincriminating item of evidence against the accused. Accordingto Kapuge Don Dayasiri around 8.00 p.m. on the fateful daythe accused came and asked for a knife to cut a Habaralaleaf. The prosecution case is that the Police Officer recovereda knife in consequence of a statement made by the accused.Prosecution, by this item of evidence, tried to establish thatin the night of 9th of October 1998 the accused-appellant wasarmed with a knife. If the accused-appellant was armed witha knife why did he ask for a knife from Dayasiri to cut a
CA
Samantha vs. Republic of Sri Lanka
(Sisira De Abrew, J.)
239
Hubarala leaf. This question remains unanswered throughoutthe trial. This too creates a reasonable doubt in theprosecution case.
According to the investigating Police Officer he observedstains like blood on the blade of the Knife. But he failedto send this knife to the Government Analyst. This knifeaccording to the Police Officer was found on a heap of timberin the accused’s house. If there were 'stains like bloodon the blade of the knife would he have kept the same onthe said heap of timber to be seen by the others. This tooraises a doubt in the prosecution case. In our view theprosecution has failed to prove the case beyond reasonabledoubt. The prosecution tried to establish the case oncircumstantial evidence. In a case of circumstantial evidenceif an inference of guilt is to be drawn against the accusedsuch inference must be the one and only irresistible andinescapable inference that the accused committed the crime.This view is supported by the following judicial decisions.In the case of King vs. Abeywickrema ,1) Soertsz J. remarkedthus:
“In order to base a conviction on circumstantialevidence the jury must be satisfied that the evidence wasconsistent with the guilt of the accused and inconsistentwith any reasonable hypothesis of his innocence.”
In King vs. Appuhamx}2) Keuneman J. held thus:
“In order to justify the inference of guilt from purelycircumstantial evidence, the inculpatory facts must beincompatible with the innocence of the accused andincapable of explanation upon any other reasonablehypothesis than that of his guilt.”
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In Podisngho vs. Kincf3' Dias J. held thus:
“That in a case of circumstantial evidence it is the dutyof the trial Judge to tell the jury that such evidence must betotally inconsistent with the innocence of the accused andmust only be consistent with his guilt.
From the evidence led at the trial 1 am unable toconclude that the accused committed the offence of murder.The Learned Deputy Solicitor General who appears forthe Attorney General, upholding the best tradition of theAttorney General’s Department, submitted to this Court thathe is unable to support the conviction in view of the evidenceled at the trial. We are pleased with this submission. Forthe aforementioned reasons, we are of the opinion that theaccused should not have been convicted of the offence ofmurder. For these reasons we acquit and discharge theaccused-appellant of the charge leveled against him.
The Prison Authorities are not entitled to keep theaccused in their custody once they receive a copy of thejudgment of this Court. We direct the Registrar of this Courtto forward a copy of this judgment to the CommissionerGeneral Prisons.
ABEYRATHNE, J. – I agree.
Appeal Allowed.