022-SLLR-SLLR-2007-V-1-RANASINGHE-v.-ATTORNEY-GENERAL.pdf
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RANASINGHE
v
ATTORNEY-GENERAL
COURT OF APPEALRANJIT SILVA, J.
SISIRA DE ABREW, J.
C.A. 15/2004
H.C. AVISSAWELLA 44/2003MARCH 28, 29, 2007
Penal Code – Section 296 – Murder – Dying declaration – inherent weaknessnot considered – Principles relating to dying declarations – Evidence Ordinance- Section 27 – Discovery in consequence of a section 27 Statement – Importantof giving reasons?
The accused-appellant was convicted of murder of his mother-in-law and wassentenced to death.
In appeal, it was contended that the trial Judge had not considered the inherentweaknesses of a dying declaration and that there was an erroneous approachwith regard to section 27 Statement of the appellant.
Held:
When a dying declaration is considered as an item of evidenceagainst an accused person in a criminal trial the trial Judge/Jury mustbear in mind the following weaknesses.
The statement of the deceased person was not made under oath;
The statement of the deceased person has not been tested bycross examination,
The trial Judge/Jury must be satisfied beyond reasonable doubt onthe following matters:
whether the deceased in fact made such a statement;
whether the statement made by the deceased was true andaccurate;
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whether the statement made by the deceased could be acceptedbeyond reasonable doubt?
whether the evidence of the witness who testifies about the dyingdeclaration could be accepted beyond reasonable doubt?
whether the witness is telling the truth;
(f) whether the deceased was able to speak at the time the allegeddeclaration was made;
The trial Judge had totally failed to consider the principles relating tothe dying declaration and the risk of acting upon a dying declaration;
The conclusions reached by the trial Judge about the recovery of theiron club removed from a well is erroneous since discovery isconsequence of a section 27 statement only leads to the conclusionthat the accused had the knowledge as to the weapon being kept atthe place from which it was detected;
The trial Court must declare its reasons for the acceptance of theprosecution evidence and the rejection of the defence evidence.
APPEAL from the Judgment of the High Court of Avissawella.
Cases referred to:
King v Asinvadam Nadar – 51 NLR 322
Justinpala v Queen – 66 NLR 409
Queen v Anthonypillai – 68 CLW 57
Moses v State – 1993 – 3 Sri LR 401
Heen Banda v Queen – 75 NLR 54
Dr. Ranjith Fernando for appellant.
Dappula de Livera, D.S.G. for the Attorney-General.
Cur.adv.vult.
May 09. 2007
SISIRA DE ABREW, J.
The appellant was convicted of the murder of his mother-in-law 01and was sentenced to death. This appeal is against the saidconviction and the sentence. The prosecution mainly relied upon thefollowing items of evidence to prove the fact that the appellantinflicted injuries on the deceased.
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The utterances made by the appellant. Around 12.30 p.m.on the day of the incident the appellant addressed thewitness Manel Perera, one of the daughters of thedeceased in the following language. "I will kill all of you. Ihave written in the Police Station and come."
At the time the appellant made the above utterances hewas armed with an iron club which was identified by thewitness at the trial.
This iron club was recovered by the investigating officerfrom a well in consequence of a section 27 statement madeby the appellant.
Dying declaration made by the deceased to witness ManelPerera to the effect that the appellant attacked her with aniron club.
The enmity that the appellant was having with the deceasedwith regard to a land dispute.
Learned Counsel for the appellant complained that the learnedtrial Judge had not considered the inherent weaknesses of a dyingdeclaration before accepting the dying declaration as evidence in thiscase. In order to appreciate the contention of the learned Counsel it isnecessary to consider dying declaration made by the deceased andthe relevant answers given by the witness Manel Perera who went tosee her mother on hearing that her mother had been attacked.
Witness Manel Perera saw the deceased almost crawling in herdirection away from the house of the deceased when she went to thehouse of the mother. On being asked as to who assaulted her thedeceased who was bleeding at the time first replied in the followingwords: "Elder son-in-law attacked me with an iron club." LearnedProsecuting State Counsel who was apparently not satisfied with thisanswer given by the witness Manel Perera told the witness to use theexact words used by the deceased. The answer to this question bythe witness is as follows: "Mother said son-in-law attacked me." Whenquestioned by Court she said the deceased used the following words:"Wijelal attacked me." When the witness questioned the deceased forthe second time the deceased used the following words: "Elder son-in-law Wijelal attacked me." It is therefore seen that witness Manel
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Perera had given four different answers with regard to the words usedby the deceased. They are as follows:
Elder son-in-law attacked me with an iron club.
Son-in- law attacked me.
Wijelal attacked me
Elder son-in-law Wijelal attacked me.
Are these the words used by the deceased? Are these the wordsused by the witness or is this a mixture of words used by both thewitness and the deceased? Learned trial Judge should have been somindful of these questions.
When a dying declaration is considered as an item of evidenceagainst an accused person in a criminal trial the trial Judge or the juryas the case may be must bear in mind following weaknesses, (a) Thestatement of the deceased person was not made under oath, (b) Thestatement of the deceased person has not been tested by crossexamination; vide King v Asirivadam NadatV) and Justinpala vQueens, (c) That the person who made the dying declaration is not awitness at the trial.
In the case of Queen v Anthonypillaffl H.N.G. Fernando, J., held 60that "the failure on the part of the learned trial Judge to caution the juryas to the risk of acting upon a dying declaration, being the statementof a person who is not a witness as the trial, and as to the need toconsider with special care the question whether the statement couldbe accepted as true and accurate had resulted in a miscarriage ofjustice."
As there are inherent weaknesses in a dying declaration which Ihave stated above, the trial Judge or the jury as the case may be mustbe satisfied beyond reasonable doubt on the following matters, (a)Whether the deceased, in fact, made such a statement, (b) Whether 70the statement made by the deceased was true and accurate, (c)Whether the statement made by the deceased person could beaccepted beyond reasonable doubt, (d) Whether the evidence of thewitness who testifies about the dying declaration could be acceptedbeyond reasonable doubt, (e) Whether witness is telling the truth, (f)Whether the deceased was able to speak at the time the allegeddeclaration was made.
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I have gone through the judgment of the learned trial Judgeand I find that the learned trial Judge had failed to consider theabove weaknesses of a dying declaration. Further the learned trialJudge had not directed his mind to the above matters referred toin (a) to (g) above. However there is some reference to criterion (f)above in the judgment but even here he had not been mindful thatthis was a matter that should be proved beyond reasonable doubt.In my view the learned trial Judge should have been mindful of theinherent weaknesses in a dying declaration before he decided toact upon the dying declaration. The learned trial Judge should alsohave been satisfied beyond reasonable doubt about the othermatters set out in (a) to (g) above. The learned trial Judge shouldhave been cautious and careful before he decided to accept thedying declaration especially in view of the different answers, whichI have already mentioned, given by the witness Manel Perera. It istrue that the trial Judge who has a trained legal mind need not stateall these principles in his judgment but it must be apparent from thejudgment that he had directed his mind to the principles of lawgoverning the dying declaration. The learned trial Judge failed togive reasons for the acceptance of the dying declaration. In thisregard I would like to consider a passage from the judgment ofJustice Hector Yapa in the case of Moses v Staffs)."Furnishing ofreasons not only assist the Court of Appeal in scrutinizing thelegality and the correctness of the order made by the lower Court,but also the existence of reasons will tend to support the idea ofjustice and would enhance the public confidence in the judicialprocess. Failure to give reasons may even lead to the inferencethat the trial Judge had no good reasons for his decision." I endorsethis view and add further that in a case of murder it must be bornein mind that the Court which hears the trial is dealing with the libertyof the accused because in the event of the charge being proved theaccused would be sentenced to death. Thus the trial Court mustdeclare its reasons for the acceptance of the prosecution evidenceand the rejection of the defence evidence. In the instant case 1 it isdangerous to permit the conviction to stand as the learned trialJudge had totally failed to consider the principles relating to thedying declaration which I have stated above and the risk of actingupon a dying declaration.
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The next complaint made by the learned Counsel for theappellant was that the erroneous approach of the learned trialJudge with regard to section 27 (Evidence Ordinance) statement ofthe appellant (hereinafter referred to as section 27 statement).Learned trial Judge, referring to recovery of iron club recoveredfrom a well, observed as follows: "This iron club was recoveredfrom a well in consequence of the accused's statement. This showsthat the accused tried to hide the weapon which was used tocommit the crime." In my view the above conclusion of the learnedtrial Judge is erroneous since discovery in consequence of asection 27 statement only leads to the conclusion that the accusedhad the knowledge as to the weapon being kept at the place fromwhich it was detected. This view is supported by the judgment ofHis Lordship Justice Sirimane (with whom Samarawickrama, J. andWeeramantry, J. agreed) in the case of Heenbanda v QueenP>which states as follows: "Where part of a statement of an accusedperson is put in evidence under section 27 of the EvidenceOrdinance, it is the duty of the trial Judge to explain to the Jury thatsuch a statement is only evidence of the fact that the accused knewwhere the article discovered could be found, and nothing more."
Learned Counsel for the appellant also complained about thebasis of the rejection of the dock statement by the learned trialJudge. He submitted that the learned trial Judge had rejected thedock statement on the basis that it had not been corroborated. ButI am unable to agree with this submission. Learned trial Judgeobserved that the dock statement was an uncorroborated one.Although there is no requirement in law that a dock statementshould be corroborated in order to accept it, the observation madeby the learned trial Judge revealed the factual position. The learnedtrial Judge came to the conclusion that the dock statement was notcapable of creating a reasonable doubt in the prosecution case. Itis not necessary for me to comment on the findings of the learnedHigh Court Judge with regard to the rejection of the dock statementin view of the conclusion reached earlier by me with regard toconviction of the appellant.
If the evidence of witness Manel Perera is properlyconsidered having due regard to the law relating to dyingdeclarations and keeping in mind the demeanor and
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deportment of the witness, trial might even end up in aconviction.
For the reasons set out in my judgment I set aside theconviction of the appellant and the death sentence imposed on himand order a retrial.
SILVA, J. – I agree.
Appeal allowed.
Retrial ordered.