029-SLLR-SLLR-2007-V-1-WANNAKU-ARACHCHILAGE-GUNAPALA-v.-ATTORNEY-GENERAL.pdf
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Wannaku Arachchilage Gunapala v Attorney-General
273
WANNAKU ARACHCHILAGE GUNAPALA
vATTORNEY-GENERAL
COURT OF APPEALRANJITH SILVA, J.
SISIRA DE ABREW, J.
C.A. 70/2004
H.C. NEGOMBO 115/2000July 10,2007
Penal Code – Section 296 – Convicted – Weapon used not produced – Is it fatalto a conviction? Evidence Ordinance Section 60(1)(2) – Section 91, Section 165- Statement of facts made by witness not challenged – What is the conclusion?
Held:
Non-production of a material object is not fatal to a conviction.
Provisions of the Evidence Ordinance itself have made a cleardistinction with regard to the documentary evidence on the one handand real evidence on the other.
Absence of cross-examination of a prosecution witness of certain factsleads to the inference of admission of that fact.
APPEAL from the Judgment of the High Court of Negombo.
Cases referred to:
Hichin v Ahquirt Brothers – 1943 All ER 722
Lucus v William and Sons – 1892 2 QB 113
Rex v Francis – 1874 Law Reports 2 CCR 128 at 132
Sarwan Singh v State of Punjab – 2002 – AIC SC (iii) 3652 at 3655,3656,
Boby Mathew v State of Karnataka – 2004 3 Cri LJ 3003
Himachal Pradesh v Thakuar Dass – 1993 2 Cri 1694 at 1983
Motilal v State of Madya Pradesh – 1990 Cri LJ No. C 125 MP
Edrick de Silva v Chandradasa de Silva – 70 NLR 169 at 170
Jagath Abeynayake for accused-appellant.
Shavindra Fernando, DSG for Attorney-General.
Cur. adv. vult
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July 2,2007RANJITH SILVA, J.
The accused-appellant was charged in the High Court of oiNegombo for having committed the offence of murder an offencepunishable under section 296 of the Penal Code. After trial theaccused was found guilty of the charge and was sentenced to death.Aggrieved by the said judgment and the sentence the accused-appellant has preferred this appeal to this Court. At this stage of theargument learned Counsel for the appellant confines himself to onlyone ground of appeal namely that the High Court Judge erred inconvicting the accused, in the absence of any evidence to prove thatthe accused stabbed the deceased with the weapon that was iomentioned in the charge. Further he contends that the weapon usedwas never produced in Court and was not identified by the Doctor tobe the murder weapon or a like weapon that could have caused theinjuries. A production in a case is only one of the circumstantial evi-dence against an accused in a case. When there is cogent evidencegiven by eye-witnesses sufficient to warrant a conviction it would notalways be necessary to produce the weapons used in the crime.
I hold that non production of a material object is not fatal to aconviction. The provisions of the Evidence Ordinance itself havemade a clear distinction with regard to documentary evidence on the 20one hand and real evidence on the other. Section 91 of the EvidenceOrdinance excludes parole evidence whereas section 60(1) and (2)of the Evidence Ordinance enacts that if the oral evidence refers toa fact which could be seen or perceived by any other sense or in anyother way, it must be the evidence of the witness who says that hesaw or perceived that fact by that sense or in that manner, thatshould be led to prove that fact, although the Court may, if it thinksfit, require the production of such material thing for itsinspection. (Section 165 of the Evidence Ordinance) Thus theprosecution was entitled to lead oral evidence of a witness without 30producing the material object.
Although the English law is different on this point in severalEnglish cases it was held that the production of a material object isnot necessarily fatal to a conviction. Vide the following case Hichin vAhquirt Brother^), Lucus v William & Sons<2>, flex v Francis<3> at 132.
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Wannaku Arachchilage Gunapala v Attorney-General(Raniith Silva. J.)
275
In the circumstances the contention that as the knife was listed as aproduction in the indictment, its non production at the trial is fatal tothe conviction, is an untenable proposition.
We have heard both Counsel in support of their cases. We haveperused the evidence in this case and we find that the accused-appellant had not taken up any objection as to the non-production ofthe weapon in the course of the trial and also we find that theaccused had not thought it fit to question the doctor with regard to thenature of the weapon. Eye-witness Roshantha has stated in hisevidence that he saw the accused-appellant stabbing the deceasedwith a pointed weapon. No questions were asked from him in crossexamination as to the nature or the type of the weapon used. Itappears that the nature or the type of the weapon was not put inissue instead the Counsel for the defense had challenged thiswitness only on the basis that the witness did not see the incident orthe weapon that was used in the commission of the crime. Thereforewe find that it is not in the mouth of the accused now, to take up allthese objections that were not raised at the trial. In Sarwan Singh vState of Punjab<4) at 3655, 3656." It is a rule of essential justice thatwhenever the opponent has declined to avail himself of theopportunity to put his case in cross-examination it must follow thatthe evidence tendered on that issue ought to be accepted." This casewas cited with approval in the case of Boby Mathew v State ofKarnataka.
In Himachal Pradesh v Thakuar Dassfi) at 1983 V.D. Misra, CJheld: Whenever a statement of fact made by a witness is notchallenged in cross-examination, it has to be concluded that the factin question is not disputed.
“Absence of cross examination of prosecution witness of certainfacts leads to the inference of admission of that fact." Motilal v Stateof Madya PradeshP).
In Edrick de Silva v Chandradasa de Silvaft) at 170 Justice
N.G. Fernando observed I quote "Where there is ampleopportunity to contradict the evidence of a witness but is notimpugned or assailed in cross-examination that is a special fact andfeature in the case. It is a matter falling within the definition of theword “prove" in section 3 of the Evidence Ordinance, and as trial
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Judge or Court must necessarily take that fact into consideration inadjudicating the issue before it".
The witnesses including the medical officer was not questionedor challenged with regard to the nature of the weapon alleged to havebeen used in the Commission of the Crime.
Therefore the learned trial Judge could not be faulted forconvicting the accused on the charge of murder and it cannot be saidthat the prosecution has failed to prove the identity of the weapon soused in the crime beyond reasonable doubt.
For these reasons we find that there is no merit in this appeal.
We affirm the conviction and the sentence. Accordingly the appeal isdismissed.
SISRA DE ABREW, J.I agree.
Appeal dismissed.