Law-Report-part-8.pdf

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D I G E S T
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CONSTITUTION – Article 12(1) – Right to equality – Articles 13(1) and 197
13(2) – Freedom from arbitrary arrest, detention and punishment –
Article 14(g) – Freedom of speech, assembly, association, occupation,
movement – Article 126 – Fundamental rights jurisdiction – Excise
Ordinance – Section 33, 35, 37, 46g, 47, 48(a), 48 (c), 52(1) a
Udagama and 2 Others v. Chandra Feranando, Inspector General
of Police and 5 others
(Continued from Part 7)
PENAL CODE – Section 296 – Murder – Conviction – Approach of the 201
Appellate Court?- Identifcation of accused by deceased?- Turnbul
principles – Evidence Ordinance Section 27, Section 32 –
Statement – Contradictory – Consideration – Dying declaration – circum-
stantial evidence
Sigera Vs. Attorney General
SUPREME COURT RULES, 1990 – Compliance of Rule 8 is imperative – 220
Rule 40 – Application for extension of time for the purpose of Rule 8(3)
– Procedure
Attanayake V. Commissioner General Of Elections
(Continued in Part 9)

Udagama and 2 Others v. Chandra Feranando, Inspector General of Police
SC and 5 others (Gamini Amaratunga J.) 197
Section 35 of the Excise Ordinance provides that “Any
offcer of the Excise, Police, Customs or Revenue Depart-
ments, not below such rank and subject to such restrictions
as the Minister may prescribe, and any other person duly
empowered, may arrest without warrant any person found
committing in any place other than a dwelling house, an
offence punishable under section 46 or 47; and may seize
and detain any excisable or other article which he has
reason to believe to be liable to confscation under this
Ordinance or other law for the time being in force relating to
excise revenue; ….. “ (emphasis added).
This section gives powers of arrest of any person found
committing an offence under section 46 or 47 and the power
to seize any excisable or other article liable to confscation
under the Excise Ordinance or other law in force relating to
excise revenue. While the frst part of this section gives powers
of arrest of offenders committing offences under section 46
or 47, the second part gives powers of seizure of contraband
liable to forfeiture under laws relating to excise revenue.
By clause 1 (ii) of the Excise Notifcation No. 509, the
Minister has appointed all offcers of the Police Force to
perform the acts and duties mentioned in section 35 of the
Excise Ordinance throughout the Island. In the written
submissions fled for the petitioners, the learned counsel
quoting the words of section 35 that “Any offcer of the
Excise, Police, Customs or Revenue Departments, not below
such ranks and subject to such restrictions as the Minister
may prescribe” has submitted that since in clause 1(ii) the
Minister has not specifed the rank of the police offcers
who could perform the acts and duties mentioned in sec-
tion 35, the police offcers cannot act under section 35 of the

198 Sri Lanka Law Reports [2011] 1 SRI L.R.
Excise Ordinance. This submission does not appeal to me at
all. When the Minister by the said clause 1(ii) of the Excise
Notifcation has appointed all offcers of the Police Force to
perform the acts and the duties mentioned in section 35 of
the Excise Ordinance, that is an appointment of offcers of all
ranks of the Police Force to perform the acts and duties under
section 35. I therefore reject the aforementioned submission
and hold that offcers of all ranks of the Police Force have
powers to perform the acts and duties mentioned in section
35. As such all police offcers have powers to arrest without
a warrant any person found committing in any place other
than a dwelling house an offence punishable under section
46 or 47 of the Excise Ordinance.
Section 46 of the Excise Ordinance in Paragraphs (a) to
(h) of that section sets out offences committed in contraven-
tion of the Excise Ordinance, or of any rule or order made
thereunder or of any licence, permit or pass obtained under
it. In terms of paragraph 46(g) whoever in contravention of
any licence granted under the Ordinance “sells or keeps or
exposes for sale any excisable article shall be guilty of an
offence.” In view of this provision sale of arrack at a wine
stores in contravention of a condition of the licence issued to
such wine stores is an offence under section 46 of the Excise
Ordinance and as such a member of the Police Force, em-
powered by Excise Notifcation No. 509 to perform the acts
and duties mentioned in section 35 of the Excise Ordinance
has power to arrest without a warrant any person found sell-
ing any excisable article in contravention of a licence issued
under the Excise Ordinance.
The learned counsel for the petitioners, in his written
submissions has submitted that any violation or breach of

Udagama and 2 Others v. Chandra Feranando, Inspector General of Police
SC and 5 others (Gamini Amaratunga J.) 199
any condition of the licence can be dealt with only under
section 48(c) of the Excise Ordinance and as the Excise
Notifcation No. 509 does not empower a police offcer to act
in terms of section 48 (C) the police offcers do not have the
power to detect sales of excisable articles in contravention of
the conditions of a licence. However section 48(c) deals with
acts or omissions in breach of any condition of a licence not
otherwise provided by the Excise Ordinance. Section 46(g)
specifcally states that the sale of any excisable article in
contravention of a condition of the license is an offence.
Therefore sales of excisable articles in contravention of a
condition of a licence falls within section 46(g) and not
under Section 48(c). For the reason set out above I am unable
to accept the submission referred to above.
For the reasons set out above I am unable to accept the
proposition put forward by the petitioners that police off-
cers do not have power to detect sales of excisable article in
contravention of the conditions of a license issued under the
Excise Ordinance. As I have already stated in this judgment,
as a result of the combined effect of clause 1(1) of the Excise
Notifcation 509 read with sections 35 and 46(g) of the Excise
Ordinance, police offcers have the power to detect the offence
of selling an excisable article in contravention of a condition
of the licence issued to a wine stores.
However in terms of section 52(1)(a) of the Excise
Ordinance, no Magistrate shall take cognizance of an offence
punishable under section 46, 47 or 50 except on his own
knowledge or suspicion or on the complaint or report of an
excise offcer. Although the police have the power to detect
and apprehend a person who has committed an offence
under section 46(g), in view of the provisions of section 52(1)(a),

200 Sri Lanka Law Reports [2011] 1 SRI L.R.
the police have no authority to initiate proceedings before a
Magistrate against the offender. Such offences, commonly
called technical offences, have to be referred to an excise
offcer for appropriate action.
The 1st and 2nd petitioners’ assertion that the detection
made by the 3rd and 4th respondents at the petitioners wine
shop on 10.10.2005 was illegal is based on their contention
that police offcers do not have power and authority under the
Excise Ordinance to detect violations of the conditions of their
licence. In this judgment I have already held that in terms
of Clause 1 (ii) of the Excise Notifcation No. 509 read with
section 35 and 46(g) of the Excise Ordinance police offcers
have the power to detect the offence of selling an excisable
article in contravention of a condition of a licence granted
under the Excise Ordinance and to arrest the offender without
a warrant. In view of that fnding the 1st and the 2nd petitioners’
assertion that the respondents have violated their fundamental
rights guaranteed by Articles 12(1) and 14(1) (g) fails.
For the same reason the 3rd petitioner’s claim that the
respondents have violated his fundamental rights guaranteed
by Articles 12(1), 13(1), 13(2) and 14(1) (g) also fails. This
application is therefore dismissed without costs.
Tilakawardena J. – I agree.
Marsoof J. – I agree.
Application dismissed.

Sigera Vs. Attorney General
CA 201
SIGERA VS. ATTORNEY GENERAL
COuRT OF APPEAl
RANjITH SIlvA.j
lECAMWASAM.j
CA 184/2004
DC COlOMBO 849/2002
jANuARy 27, 2011
MARCH 9, 2011
Penal Code – Section 296 – Murder – Conviction – Approach of the
Appellate Court?- Identifcation of accused by deceased?- Turnbul
principles – Evidence Ordinance Section 27, Section 32 –
Statement – Contradictory – Consideration – Dying declaration –
circumstantial evidence
The accused-appellant was indicted with another (since dead) for
causing the death of one F. After trial he was convicted and sentenced
to death. In appeal, it was contended that, the High Court judge
misdirected himself on the facts, not given due consideration to the
contradictory narration of circumstances surrounding the alleged
Section 32 statement, drew unwarranted inferences regarding the
circumstances surrounding the alleged identifcation of the assailant
by the deceased and that the burden of proof was placed on the
accused.
Held:
(1) Appellate Court will not lightly interfere with the fndings of facts of
a trial judge as it is the trial judge who has the privilege and the
advantage of hearing and observing the demeanour and deport-
ment of the witnesses as and when they gave evidence in Court.
(2) The identifcation was not in a diffcult circumstance or in a
multitude of persons in a crowd or in a feeting moment. To
apply the Turnbul principles the identifcation had to be made
under different circumstances – in this case although the incident
took place – during night, there was ample light shed by the bulb
of the lamp post that was burning. There was no congregation of

202 Sri Lanka Law Reports [2011] 1 SRI L.R.
multitude of persons in a crowd but only the accused-appellant
and the deceased. In order to infict the injuries on the deceased,
the assailant had to come very close to the deceased.
(3) Under our law a dying declaration can be admitted in evidence
under Section 32 of the Evidence Ordinance. One of the salient
features discernible in this section is that the declaration may be
written or oral. Even a sign made by a person who is unable to
speak is caught up in this phrase.
(4) First and foremost a judge must apply his mind and decide
whether the dying declaration is a true and accepted statement –
in doing so he must be mindful of the fact that the statement was
not made under oath, that the statement of the deceased person
has not been tested in cross examination and that the person who
made the dying declaration is not a witness at the trial.
(5) An accused can be convicted for murder based mainly and solely
on a dying declaration made by a deceased without corroborat-
ing under certain circumstances. It would not be repugnant or
obnoxious to the law to convict an accused based solely on a dying
declaration.
Per Ranjit Silva. j
“In order to justify an inference of guilt from the circumstantial
evidence the inculpatory facts must be incompatible with the
innocence of the accused and incapable of explanation upon any
other reasonable hypothesis than that of his guilt”.
Per Ranjit Silva. j
“In the instant case taken cumulatively the proved circumstan-
tial evidence irresistibly point towards the only inference that the
accused committed the offence, and is not capable of any inference
other than the guilt of the accused. The proved items of circum-
stantial evidence taken together with the dying declaration are
inconsistent with the innocence of the accused”.
appeal from the judgment of the High Court of Colombo.
Cases referred to:-
1. Samaraweera vs. AG – 1990 1 Sri lR 256

Sigera Vs. Attorney General
CA (Ranjith Silva, J.) 203
2. Perera vs. Sigera – Sri Kantha law Reports – vol 1 page 7
3. Karunaratne vs. Anulawathie – Sri Kantha law Reports vol 7 – page
74
4. Alwis vs. Piyasena Fernando – 1993 – 1 Sri lR 119 at 122
5. Wickramasinghe vs. Dedoleena – 1996 – 2 Sri lR 95
6. Nissanka vs. The State – 2001-1 Sri lR at 78
7. Bhola Singh vs. State of Punjab – 1994 SC 137 at 161
8. Uthtar Pradesh vs. Nahar Singh – AIR 1998 – SC 1328 at 1333
9. CA 51/2003- HC 6416 – CAM 1.11.2007 at 11 and 12
10. Alisandri vs. The King – 38 NlR 257
11. K vs. Mudalihamy – 47 NlR 139
12. Q vs. Anthony Pillai – 68 ClW 57
13. Weerappan vs. Q – 76 NlR 169
14. K vs. Asirivadan Nadar – 51 NlR 322
15. Justinapala vs. Q 66 NlR 409
16. Ratnayake vs. Q – 73 NlR at 481
17. K vs. Samarakoon Banda – 44 NlR 169
18. The Emperor vs. Naga Hal Din and another AIR Rampon at 187
19. Q vs. Vincent Fernando 65 NlR 265
20. Lewis Fernando vs. Q – 54 NlR 274
21. K vs. Abeywickrama – 44 NlR 254
22. K vs. Appuhamy 46 NlR 128
23. Podi Singho vs. K – 53 NlR 49
24. Don Sunny vs. A.G. – 1998 – 2 Sri lR at 1
Tirantha Walaliyadda PC for accused-appellant
Rohantha Abeysuriya SSC for respondent.
March 31st 2011
ranJiTH silva, J.
In this case the Accused Appellant, P. Mervin Athula
Sigera, hereinafter some times referred to as the Appellant
was indicted in the High Court of Colombo, along with

204 Sri Lanka Law Reports [2011] 1 SRI L.R.
another accused who died before the trial commenced, for
causing the death of one Abdul Cader Arshad Fahim on
23rd March 1996 at a place called ‘Sigera Watte’ and thereby
committing the offence of murder which is an offence
punishable under section 296 of the Penal Code. After trial
on 14th of October 2004, the Appellant was convicted and was
sentenced to death. It is against the said conviction and the
sentence that the Appellant has preferred this appeal to this
Court.
The facts
According to evidence led at the trial it is apparent that
there are no eyewitness to the incident and the case for the
prosecution rested almost entirely on items of circumstantial
evidence. On the date of the incident namely on 23rd March
1996, shortly prior to the incident the deceased had been at
his residence in the company of one joseph Priyanka Perera
(prosecution witness number one) who happened to be
a friend of the deceased, and his brother Naushad pros-
ecution witness number four. Priyanka was residing at the
premises number 86/48,. The deceased had left his residence
to proceed to the residence of another friend of his around
9 p.m. and within a few minutes Priyanka Perera too had left
the house of the deceased. It is shortly thereafter prosecution
witness number one had witnessed the deceased walking
towards him grievously injured with bleeding injuries.
Priyanka had seen the deceased by the light that was shed by
the streetlamp that was burning in the close vicinity, around
9 p.m. witness Priyanka had helped the deceased to sit and
at or about that time the deceased had upon enquiry, with
diffculty told Priyanka that I quote, “Athula Sigera shot me”.
It appears that the deceased had mentioned the name of the

Sigera Vs. Attorney General
CA (Ranjith Silva, J.) 205
Appellant in no uncertain terms and thereafter the deceased
had not made any further utterances. Thereafter Naushad
P.W. 4 had arrived at the place where the deceased and
Priyanka were and Priyanka had told Naushad that Athula
Sigera shot the deceased. According to the evidence of
Priyanka there had been some trivial disputes between the
accused and the deceased sometime back.
Having received a complaint Inspector jayasundara
had arrived at the scene on the same day at 22.05 hours.
According to him the incident had taken place on a land called
“86 Watte”. He had noted blood stains at the threshold to the
said land (86/watte) and large patches of blood were found
in front of the house bearing number 86/65, where Priyanka
encountered the deceased that night. This particular po-
lice offcer during his investigation had found four empty
.22 cartidges at the entrance to the ’86 Watte’. According
to his evidence when one proceeds from the entrance to the
said land along a by road one comes to the spot where the
deceased was lying fallen on the ground this land is called
‘Sigera Watte’. Thereafter Inspector jayasundara had
searched for the suspects and during his search he had
sent phone messages to the surrounding police stations.
Finally the Accused Appellant was arrested by Sub Inspector
Asoka Kumara on 26 of March 1996 in a hut at ‘Katukurunda
Watte’ and upon a statement made in terms of section 27 of
the Evidence Ordinance a gun was recovered from inside a
chest containing clothes in the house where the Appellant
was found. According to the evidence of the Government
Analyst the empty catridges that were found at the scene
could have been fred from the gun that was recovered from
the chest of clothes. The medical practitioner who gave
evidence that there were four gun shot injuries on the

206 Sri Lanka Law Reports [2011] 1 SRI L.R.
diseased one from front of chest moving downwards, one
from behind near the hip, one from front moving down-
wards, on the abdomen and another injury on the arm. The
conclusions drawn by the Medical offcer were that the
deceased had died due to gunshot injuries sustained by him,
fred from a range just over 3 feet. The Post-mortem report
was produced marked as P1. The prosecution closed its case
leading in evidence the statutory statement made by the
appellant. The Appellant opted to remain silent and did not
call any witness to give evidence on his behalf.
Counsel for the Appellant in his written submissions
as well as in his oral submissions raised several grounds of
appeal which are as follows;
(1) The learned High Court judge misdirected himself on
what amounts to corroboration in law.
(2) The learned High Court judge has misdirected himself
on section 33 and section 157 of the Evidence Ordinance
and acted on unwarranted assumptions regarding un-
proven testimonies in previous judicial proceedings.
(3) The learned High Court judge misdirected himself on the
facts and read into the evidence of witness what was not
in their respective testimonies, thereby causing a miscar-
riage of justice.
(4) The learned High Court judge has not given due consid-
eration to the contradictory narrative of circumstances
surrounding the alleged Section 32 statement.
(5) The learned High Court judge has drawn an unwarrant-
ed inference regarding the circumstances surrounding
the alleged identifcation of the assailant by the deceased.

Sigera Vs. Attorney General
CA (Ranjith Silva, J.) 207
(6) The learned High Court judge misdirected himself on
the facts narrated by the Government Analyst on crucial
matters thereby causing a miscarriage of justice.
(7) The learned High Court judge has not given due
consideration to the contradictory evidence regarding the
identifcation of the productions.
(8) The learned High Court judge has abdicated his
functions to the Government Analyst.
(9) The learned High Court judge misdirected himself on
the burden of proof by placing an imperative burden on
the Accused Appellant.
Most of the grounds of appeal urged by the Counsel for
the Appellant are based on credibility of the Witness. I must
emphasize that an Appellate Court will not lightly interfere
with the fndings of facts of a Trial judge. In Samaraweera
Vs A.G(1). it was held that an Appellate Court will not lightly
interfere with the fndings of facts of a Trial judge as it is
the Trial judge who has the privilege and the advantage of
hearing and observing the demeanour and deportment of the
witness as and when they give evidence in court.
“While a Court of Appeal will always attach the greatest
possible weight to any fndings of facts of a judge of a court
of frst instance based upon oral testimony given before that
judge, it is not absolved by the existence of these fndings
from the duty of forming its own view of the facts, more
particularly in a case where the facts are of such complication
that their right interpretation depends not only on any
personal impression which a judge may have formed by
listening to the witnesses but also upon documentary

208 Sri Lanka Law Reports [2011] 1 SRI L.R.
evidence, and upon inferences to be drawn from the behavior
of these witnesses (demeanour and deportment) both before
and after the matters on which they give evidence. A Court
of Appeal in such situations is free to overrule such fndings
of facts if it appears that the Trial judge has misdirected
himself on the facts or that wrong inferences have been drawn
from the facts. (Vide.Perera Vs Sigera(3) and Karunaratne Vs
Anulawathie(3).
In Alwis Vs Piyasena Fernando(4) at 122 it was
observed by the learned judges who heard that case as
follows: “it is well established that fndings of primary facts
by a trial judge who hears and sees witnesses are not to
be lightly disturbed on appeal. The fndings of this case are
based largely on credibility of witnesses. I am therefore of
the view that there was no reasonable basis upon which the
Court of Appeal could have reversed the fndings of the trial
judge.” (vide. Wickramasooriya Vs Dedoleena(5).)
For convenience I shall frst deal with the 5th ground
of appeal which reads thus; the learned High Court
Judge has drawn an unwarranted inference regarding the
circumstances surrounding the alleged identifcation of
the assailant by the deceased.
Whether the Appellant was suffciently identifed to
support a conviction against him?
One of the grounds of appeal urged by the Accused
Appellant is the issue of identify i.e. as to whether the
deceased was able to clearly identify the assailant. The
learned Counsel for the Appellant contended that the
evidence was not suffcient to identify the Appellant beyond
reasonable doubt as the entire transaction took place during
the night.

Sigera Vs. Attorney General
CA (Ranjith Silva, J.) 209
Prosecution witness (PW1) Priyanka has clearly stated in
his evidence that the deceased, the Accused Appellant and
he were neighbours who had known each other for a consid-
erable lengh of time and that the distance between the resi-
dence of the deceased and the accused has been described as
‘walking distance’. This witness has also stated in evidence
that when he frst encountered the deceased on the road on
that fateful day, He was near a street lamp post with the light
switched on and by that light he was able to clearly identify
the deceased. It is obvious according to the medical evidence
that the deceased could not have walked more than a few
feet let alone a far distance, in that condition, fatally injured,
with four gun shot injuries and therefore it is safe to assume
that the shooting took place in the close vicinity of the street
lamp post that illuminated the area. In this regard it is signif-
icant to note that the Counsel for the Appellant himself was
taking in contradictions when he argued that it would not
have been possible for the deceased to make any coherent
utterances after he sustained the gun shot injuries due to the
serious nature of the said injuries. If that was the case, infer-
entially the deceased could not have walked a far distance after
he received the fatal injuries. According to the expert witness
Dr. lalani Indrani Ratnayake the Additional judicial Medical
Offcer who performed the autopsy on the deceased, the
deceased would have retained the ability to speak for a while
prior to his death after sustaining the injuries. Furthermore
the doctor did not exclude the ability of the deceased to walk
a few steps after sustaining the injuries. The signifcance of
this statement is that the deceased could have walked only
a few steps after he sustained injuries. Furthermore, on a
consideration of the nature of the gun shot injuries sustained
by the diseased, the doctor who performed the autopsy has

210 Sri Lanka Law Reports [2011] 1 SRI L.R.
expressed his opinion in no uncertain terms in stating that
the shooting would have taken place at close range. Thus
it could be seen undoubtedly that even the assailant would
have been in the close vicinity of the street lamp. According to
the evidence of prosecution witness No. 4, the brother of the
deceased, he knew only of one person in that area who was
known by the name Athula Sigera.
The Identifcation was not in diffcult circumstances or
in a multitude of persons in a crowd or in a feeting moment.
I am of the view that Turnbul principles do not apply under
the circumstances.
In Nissanka Vs The State(6) at 78 Their lordships held
that the facts elicited from the testimony of C –who identifed
the accused at the trial, manifest that at the point of identi-
fcation there was no congregation of a multitude of persons
in a crowd but only the two accused, the deceased and the
witness had been present and this happened in broad
daylight hence there cannot be any doubt.
To apply Turnbul principles the identifcation had to be
made under diffcult circumstances. In this case, although
the incident took place during night, there was ample light
shed by the bulb of the lamp post that was burning. There
was no congregation of a multitude of persons in a crowd
but only the Accused Appellant and the deceased. In order to
infict the injuries on the deceased, the assailant had to come
very close to the deceased. The injuries could not have been
caused from a distance. According to the Government Analyst
the shooting had taken place from a short distance. In fact
it had to be done at close quarters and the distance couldn’t
have been more than an arm’s-length. A bulb was lit and the
Appellant was a well known person who lived in the neigh-

Sigera Vs. Attorney General
CA (Ranjith Silva, J.) 211
bourhood, in the same vicinity for a long time. These uncon-
toverted facts prove that there was ample light and ample
time for the deceased to identify the Appellant.
In Bhola Singh Vs State of Punjab(7) at 161 the Indian
Supreme Court held, if I may quote; “if the light was
suffcient for the accused to identify their target there is no
reason to hold that the injured eyewitness and the other
witnesses could not identify the assailant.”
In State of Uthtar Pradesh Vs Nahar Singh (8) at 1333 once
again the Indian Supreme Court held that, “If the light was
enough to enable the assailant to identify the victims and kill
them it can hardly be contended, much less accepted that the
light was not enough to identify the assailants.
The two judgments above referred to cannot be applied
as a general rule without exception. I am prepared to fol-
low the decisions in the above mentioned cases only to the
extent that in the circumstances of the instant case the two
judgments above referred to could be safely applied. There
could be a case where the assailants plan and then surprise
the victim in such a way that the victim would not have any
chance of identifying the assailant. If the appellant is in
hiding lying in ambush, waylays the victim and the witnesses,
if any, taking them by surprise, in such a situation the
Appellant may have the opportunity of observing the victim
prior to the attack but the victim or the witness may not see
the Appellant till the last moment and thus may not be able
to identify the assailant. (vide. The Judgment of ranjith
silva,J.
dying declarations
4th ground of appeal: The learned High Court Judge
has not given due consideration to the contradictory

212 Sri Lanka Law Reports [2011] 1 SRI L.R.
narrative of circumstances surrounding the alleged
section 32 statement.
The principle on which this kind of evidence is
admitted in certain cases is that they are declarations made
in the extremity when the party is at the point of death; when
every hope of this world has gone; when every motive to
falsehood is silenced; and the mind is induced by the most
powerful considerations to speak the truth.
Under our law a dying declaration can be admitted in
evidence under section 32 of the Evidence Ordinance. The
said section states: statements written or verbal of relevant
facts made by a person who is dead… are themselves relevant
facts in the following cases-
When the statement is made by a person as to the
cause of his death or as to any of the circumstances of the
transaction which resulted in his death, in cases in which
the cause of his death comes into question.
The section above referred to states that, such state-
ments are relevant whether the person who made them was
or was not at the time when they were made, under expecta-
tion of death, and whatever may be the nature of proceeding
in which the cause of his death comes into question.
Section 32 (1) is illustrated in the following manner:
The question is whether A was murdered by B; or
whether A died of injuries received in a transaction in the
course of which she was ravished. Statements made by A as
to the cause of his or her death, referring respectively to the
murder, the rape …. under consideration, are relevant facts.

Sigera Vs. Attorney General
CA (Ranjith Silva, J.) 213
One of the salient features discernible in this section
is that the declaration may be written or oral, even a sign
made by a person who is unable to speak is caught up in this
phrase. (Alisandri Vs the King(10))
The circumstances must be circumstances of the
transaction. General expression indicating fear or suspicion
whether of a particular individual or otherwise and not
directly related to the occasion of the death will not be
admissible but statements made by the diseased that he was
proceeding to the spot where he was in fact killed, or as to
his reasons for so proceeding or that he was going to meet a
particular person or that he had been invited by such person
to meet him would even then be circumstances of the
transaction and would be so whether the person was
unknown or was not the person accused. Circumstances
must have some proximate relation to the actual occur-
rence though for instance in the case of prolonged poisoning
they may be related to dates at a considerable distance from
the date of the total dose. In King Vs Mudalihamy (11) when
the witness Mary Nona questioned from Wiliamsingho (the
deceased) as to where he going he said “Mudalihamy (the
accused) wanted me to go and collect honey and I am going
to meet him.”
Thereafter nobody heard about William Singho. Twelve
days later the decomposed body of a man was found wedged
in between two rocks in the middle of a stream. Mary Nona
identifed the body as that of William Singho and several stab
injuries were on his body.
It was held that the said statement made by the deceased
that he was going to the place where the accused lived could

214 Sri Lanka Law Reports [2011] 1 SRI L.R.
be admitted in evidence as it was clearly a statement as to
some of the circumstances of the transaction which resulted
in his death.
First of all this court has to decide whether the dying
declaration in question was a true and accurate one. It is
only then the learned High Court judge could be justifed in
treating the dying declaration as substantive evidence against
the Appellant, which is an exception to the hear say Rule.
H.N.G. Fernando, j in Queen Vs Anthony Pillai (12) held I quote;
“the failure on the part of the learned Trial judge to caution
the jury as to the risk of acting upon a dying declaration,
being the statement of a person who is not a witness at the
trial, and as to the need to consider with special care the
question whether the statement could be accepted as true
and accurate had resulted in a miscarriage of justice.”
Therefore it is seen that frst and foremost a judge must
apply his mind and decide whether the dying declaration is a
true and accurate statement. In doing so he must be mind-
ful of the fact that the statement of the deceased was not
one made under oath (Weerappan Vs the Queen(13)), that the
statement of the deceased person has not been tested in
cross examination (vide King Vs Asirivadan Nadar(14) and
Justinapala Vs The Queen (15)) and that the person who
made the dying declaration is not a witness at the trial.
In view of the inherent weaknesses in the dying declara-
tion, enumerated above, the trial judge or the jury as the case
may be must be satisfed beyond reasonable doubt on the
following matters; whether the deceased in fact made such a
statement, whether the deceased was able to speak at the time
the alleged statement was made, whether the deceased was

Sigera Vs. Attorney General
CA (Ranjith Silva, J.) 215
able to identify the assailant, whether the statement made
by the deceased was true and accurate, whether the state-
ment made by the deceased person could be accepted beyond
reasonable doubt, whether the evidence of the witness who
testifes about the dying declaration can be accepted as
credible.
The frst ground of appeal relied on by the counsel for the
Appellant is that the learned High Court judge misdirected
himself on what amounts to corroboration in law.
Of course the learned High Court judge has misdirected
himself with regard to ‘corroboration’ of the evidence of the
prosecution witness No. 1 in that he had concluded that
prosecution witness No. 4 corroborated the evidence of
prosecution witness No.1 whereas the evidence of prosecu-
tion witness number 4 is only admissible under Section157
of the Evidence Ordinance to ensure consistency of the
evidence of prosecution witness number one. This cannot in
my opinion prejudice the defence in any event as corrobora-
tion is not the sine qua non in proving a dying declaration. As
I have enumerated in a different chapter of his judgment an
accused can be convicted for murder based mainly and solely
on a dying declaration made by a deceased without corrobo-
ration under certain circumstances.
In Rathnayake Vs The Queen(16) at 481 the accused was
charged with the murder of a person called Punchi Nilame
as well as one Herath Hamy. The case against the accused
depended almost entirely on statements made by Herath
Hamy to the police and to the magistrate. Herath Hamy said
that the accused Ratnayake stabbed Punchi Nilame and when
he (Herath Hamy) tried to intervene the accused stabbed him
as well.

216 Sri Lanka Law Reports [2011] 1 SRI L.R.
In the appeal it was argued that the dying deposition of
Herathamy could not be used by the prosecution to support
the frst charge that is, the murder of Punchi Nilame. Follow-
ing the decisions in King Vs Samarakoon Banda(17) at 169 and
The Emperor Vs Naga Hal Din and another(18) at 187 it was
held in that case that the circumstances relating to the two
killings were so closely interwoven that Herath Hamys death
would come into question in any charge relating to the death
of Punchi Nilame.
A dying deposition of a deceased person is not an inferior
kind of evidence which must not be acted on unless corrobo-
rated. like any other relevant fact, it must be considered by
the judge having due regard to the circumstances in which
the statement was made. It is wrong to give the statement of a
deceased person an inferior status as it is also equally wrong
to give an added sanctity. It would be a misdirection to hold
that the statement of a deceased person as to the cause of his
death which is admissible under section 32 of the Evidence
Ordinance as a relevant fact is diminished in weight by the
absence of cross examination or that it is an inferior kind of
evidence which must not be acted upon unless corroborated.
(vide. The Queen Vs Vincent Fernando(19), Lewis Fernando Vs
the Q(20))
It would not be repugnant or obnoxious to the law to
convict an accused based solely on a dying deposition, if
the trial judge is convinced that the evidence of the witness
testifying as to the dying deposition is credible, is a true and
accurate version of the statement of the deceased and that
it could be safely acted upon. In this regard I would like to
refer to the evidence given by witness Priyanka prosecu-
tion witness number 1 wherein he had stated that he had

Sigera Vs. Attorney General
CA (Ranjith Silva, J.) 217
absolutely no reason to falsely implicate the Appellant
since there was no enmity between the witness and the
Appellant and that evidence was never contradicted. In the
circumstances there aren’t any reasonable grounds to doubt
the credibility of prosecution witness number 1 with regard
to the dying declaration made by the deceased. The medical
evidence and the evidence of the police evidence too strongly
support his evidence.
Another item of circumstantial evidence which may
be considered in favour of the prosecution version is the
subsequent conduct of the Accused Appellant. According to
the evidence of the police witness it seems that although the
accused is a very close neighbour of the deceased, he had been
absconding for some time after the incident. It was about three
days later that the offcers attached to the Meeggahawatte
police station succeeded in apprehending the Appellant who
was hiding in a house in the area. Thus it appears that the
Accused Appellant opted to be away from his permanent place
of abode immediately after the murder. Another important
item of circumstantial evidence is the recovery of a frearm
from the hideout of the Accused Appellant consequent to a
statement made by the accused which is admissible under
section 27 of the Evidence Ordinance. under the guidance
of the accused a pistol was recovered by the investigation
offcers concealed in a box of clothes where the Appellant
was found. The police recovered four spent cartridges from
the scene of the crime shortly after the commission of the
offence. The said cartridges with the frearm recovered conse-
quent to the statement of the Accused Appellant were sent for
examination and report by the Government Analyst. As per the
report of the Government Analyst which is marked as P9, the
opinion of the Government Analyst was to the effect that

218 Sri Lanka Law Reports [2011] 1 SRI L.R.
all ammunition found at the scene had been fred from one
weapon. On a scientifc analysis (ballistics) the Government
Analysts has also concluded that these Bullets had been
fred from the frearm recovered consequent to the section 27
statement of the Accused Appellant. Furthermore on the day
the prosecution led the evidence of the Government Analyst
the defence had admitted the entire chain of productions
right up to the handing over of the same to the Government
Analyst.
In order to base a conviction on circumstantial evidence,
the evidence must be consistent with the guilt of the accused
and inconsistent with any other reasonable hypotheses of
his innocence. In order to justify an inference of guilt from
the circumstantial evidence the inculpatory facts must be
incompatible with the innocence of the accused and
incapable of explanation upon any other reasonable hypoth-
eses than that of his guilt. (vide. King Vs Abeywickrama(21)
King Vs Appuhamy(22)) it was held in Podisingho Vs King (23)
that in the case of circumstantial evidence it is the duty of the
trial judge to tell the jury that such evidence must be totally
inconsistent with the innocence of the accused and must
only be consistent with his guilt. In Don Sunny Vs Attorney
General (24) at 1 it was held that proved items of circumstan-
tial evidence when taken together must irresistibly point
towards the only inference that the accused committed the
offence and that if an inference can be drawn which is con-
sistent with the innocence of the accused the accused cannot
be convicted.
In the instant case taken cumulatively the proved circum-
stantial evidence irresistibly point towards the only inference
that the accused committed the offence, and is not capable of

Sigera Vs. Attorney General
CA (Ranjith Silva, J.) 219
any other inference other than the guilt of the accused. The
proved items of circumstantial evidence taken together with
the dying declaration are inconsistent with the innocence of
the accused.
For the foregoing reasons adumbrated by me on the
facts and the law, I am of the view that there is no justifable
reason for me to interfere with the judgment of the learned
Trial judge. Accordingly I affrm the conviction and the
sentence and dismiss this appeal.
Appeal dismissed
leCaMwasaM, J. – I agree
Appeal dismissed

220 Sri Lanka Law Reports [2011] 1 SRI L.R.
ATTANAYAKE V. COMMISSIONER GENERAL OF ELECTIONS
SuPREME COuRT
DR. SHIRANI A. BANDARANAyAKE, C.j.,
RATNAyAKE, P.C., j. AND
PRIyASATH DEP, P.C.,j.
S.C.(SPl)l.A. NO. 55/2011
C.A. WRIT APPlICATION NO. 155/2011
july 4TH, 2011
Supreme Court Rules, 1990 – Compliance of Rule 8 is imperative –
Rule 40 – Application for extension of time for the purpose of Rule
8(3) – Procedure
The petitioner preferred this application before the Supreme Court
for special leave to appeal. The Respondents took up a preliminary
objection that the application for special leave to appeal before the
Supreme Court should be dismissed as the Petitioner has not complied
with Rule 8(3) and Rule 40 of the Supreme Court Rules, 1990. At the
time of fling of the application, the Petitioner had not issued notices
on the Respondents through the Registrar. It is also admitted that the
Petitioner had not made any application in terms of Rule 40 for an
extension of time. Admittedly, this matter had come up for support on
two occasions without notices to the other Respondents.
Held:
(1) the provisions laid down in Rule 8 clearly deal with the need to
issue notices on the Respondents through the Registry and sets
out clear guidelines to ensure that steps are taken at several stages
to ensure that the Respondents are so notifed. The guidelines
are given not only for the Petitioner, but also for the Registrar of
the Supreme Court and even for the Respondents to see that the
application for special leave to appeal is properly instituted,
notices are correctly tendered and relevant parties are properly
notifed. It is in order to follow the said procedure that it is impera-
tive for a Petitioner to comply with Rule 8 of the Supreme Court
Rules.

Attanayake V. Commissioner General Of Elections
SC (Dr. Shirani A. Bandaranayake, CJ.) 221
(2) Supreme Court Rules 8(3) and 40 indicate that the Petitioner
should tender notices to the Registry of the Supreme Court along
with his application for special leave to appeal and in the event if
there is need for an extension of time to tender such notice that it
should be done following the procedure laid down in terms of Rule
40 of the said Rules.
(3) In terms of Rule 40, where there is an application for extension of
time for the purpose of Rule 8(3), the Registrar cannot entertain
such an application, but he should submit it to a single judge,
nominated by the Chief justice, in chambers to decide on such
grant of extension of time.
(4) The Supreme Court procedure laid down by way of Supreme
Court Rules made under and in terms of the provisions of the
Constitution cannot be easily disregarded as they have been made
for the purpose of ensuring the smooth functioning of the legal
machinery of the Supreme Court. When there are mandatory Rules
that should be followed and when there are preliminary objections
raised on non compliance of such Rules, those objections cannot
be taken as mere technical objections.
appliCaTion for Special leave to Appeal from the judgment of the
Court of Appeal dated 04.03.2011
Cases referred to:
1. C. Comasaru V. M/s. Leechman and Co.Ltd. and Others – S.C.
Application No. 217/72 and 307/72, S.C. minutes of 26.05.1976
2. Nicholas V. O. L. M. Macan Marker Ltd. and Others – (1981) 2
Sri l.R. 1
3. K. Reaindren V.K. Velusomasundera – S.C. (Spl.) l.A. Application
No.298/99, S.C. minutes of 07.02.2000
4. Union Apparels (Pvt.) Ltd. V. Director-General of Customs and Others
– (2000) 1 Sri l.R. 27
5. Piyadasa and Others V. Land Reform Commission – S.C. Application
No.30/97, S.C. Minutes of 08.07.1998
6. Kiriwanthe and Another v. Navaratne and Another – (1990) 2 Sri
l.R. 393

222 Sri Lanka Law Reports [2011] 1 SRI L.R.
7. Priyani Soysa V. Rienzie Arsecularatne and Another – (1999) 2 Sri.
L.R. 179
8. Bank of Ceylon V. Bank Employees’ Union (0n behalf of
Karunatilake) – (2003) 1 Sri l.R. 47
9. Samantha Niroshana V. Senarath Abeyruwan – S.C. (Spl.) l.A.
No.145/2006, S.C.Minutes of 02.08.2007
10. Fowzie and Others V. Vehicles Lanka (Pvt.) Ltd. – 2008 1 Sri l.R.
23
11. L.A. Sudath Rohana V. Mohamed Cassim Mohamed Zeena – S.C.
(H.C.C.A.) l.A. 111/2010, S.C. Minutes of 17.03.2011
12. N.A. Premadasa V. The People’s Bank – S.C.(Spl.) l.A. Application
No.212/99, S.C. Minutes of 24.02.2000
13. Hameed Majibdeen and Others – S.C. (Spl.) l.A. Application
No.38/2001, S.C.Minutes of 23.07.2001
14. K.M. Samarasinghe V. R.M.D. Ratnayake and Others – S.C. (Spl.)
l.A. Application No.51/2001, S.C. Minutes of 27.07.2001
15. Soong Che Foo V. Harosha K. De Silva and Others – S.C. (Spl.) l.A.
Application No.184/2003, S.C. Minutes of 25.11.2003
16. C.A. Haroon V. S.K. Muzoor and Others – S.C. (Spl.) l.A. Application
No.158/2006, S.C. Minutes of 24.11.2006
17. Woodman Exports (Pvt.) Ltd. V. Commissioner-General of
Labour – S.C. (Spl.) l.A. Application No.335/2008, S.C. Minutes of
13.12.2010
18. Fernando V. Sybil Fernando and Others – (1997) 3 Sri l.R. 1
Upul Jayasooriya with M. Ariyadasa for Petitioner-Petitioner
Nihal Jayamanne, P.C., with Kushan D’Alwis, K. Ratwatte, Dilshan de
Silva and Chamath Fernando for 4th Respondent-Respondent
Nerin Pulle, P.C., SSC for 1, 2, 3, 28th Respondent.
Cur.adv.vult.
july 07th 2011
dr. sHirani a. Bandaranayake, CJ.
This is an application for special leave to appeal from
the judgment of the Court of Appeal dated 04.03.2011. By

Attanayake V. Commissioner General Of Elections
SC (Dr. Shirani A. Bandaranayake, CJ.) 223
that judgment, the Court of Appeal had refused to issue
notice and interim relief, on the application fled by the
petitioner-petitioner (hereinafter referred to as the petitioner)
for a writ of certiorari quashing the decision of the 2nd and
3rd respondents-respondents (hereinafter referred to as 2nd
and 3rd respondents) in accepting the nomination paper of
the united People’s Freedom Alliance for Chilaw Pradeshiya
Sabha 2011, a writ of mandamus directing the 1st to 3rd
respondents-respondents (hereinafter referred to as 1st and
3rd respondents) to conduct the election for Chilaw Pradeshiya
Sabha consequent to the rejection of the nomination paper
submitted by the united People’s Freedom Alliance and a
writ of Prohibition prohibiting the 5th respondent-respondent
(hereinafter referred to as 5th respondent) and others con-
tained in the same list, from contesting as candidates of the
united People’s Freedom Alliance for the Chilaw Pradeshiya
Sabha Election 2011 and /or sitting and voting as Members
of the Chilaw Pradeshiya Sabha on the basis of preliminary
objections raised on behalf of the 4th respondent-respondent
(hereinafter referred to as 4th respondent).
The petitioner preferred an application before this Court
for special leave to appeal and when this matter came up
for support, learned Senior State Counsel for 1st, 2nd, 3rd and
28th respondents took up a preliminary objection that the
application for special leave to appeal before this Court should
be dismissed as the petitioner had not complied with Rule
8(3) and Rule 40 of the Supreme Court Rules 1990.
learned President’s Counsel for the 4th respondent also
raised the same preliminary objection stated above and
submitted that the petitioner’s application for special leave to
appeal should be dismissed in limine.

224 Sri Lanka Law Reports [2011] 1 SRI L.R.
Since preliminary objection was raised at the stage when
the application was listed for support, all parties were heard
on the said preliminary objection and the order on the said
preliminary objection was reserved.
The facts relevant to the preliminary objection raised by
the learned Senior State Counsel and the learned President’s
Counsel as presented by them, albeit brief, are as follows:
On 03.05.2011, the petitioner’s application for special
leave to appeal came up for support before this Court with
an undated petition and incomplete documents. This Court
at that stage had directed the petitioner to fle fresh docu-
ments and the matter was fxed for support for 27.05.2011.
On 23.05.2011, the petitioner had issued notice on the 4th
respondent through the Registry. Although the applica-
tion was fxed for support on 27.05.2011, the said date was
later declared as a public holiday in the Western Province and
this matter was fxed for support on 07.06.2011 and later for
21.06.2011.
When it came up for support on 21.06.2011, objections
were raised by the learned Senior State Counsel and the
learned President’s Counsel for the 4th respondent that notices
were not tendered to the Registry and therefore the petitioner
had not complied with the Supreme Court Rules, 1990.
Thereafter the petitioner made an application to tender
notices to the 5th to 27th respondents on 21.06.2011, after
having been informed by Court that notices had not been
issued on the respondents in terms of Supreme Court Rules,
1990. learned Senior State Counsel referred to the motion
fled by the Instructing Attorney-at-law for the petitioner
dated 27.06.2011 that there had been failure on the part
of the petitioner to tender notices in compliance with the
Supreme Court Rules, 1990.