020-SLLR-SLLR-2003-1-KRISHANTHA-DE-SILVA-v.-THE-ATTORNEY-GENERAL.pdf
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KRISHANTHA DE SILVAv.
THE ATTORNEY-GENERAL
COURT OF APPEALFERNANDO, J., ANDEDIRISURIYA, J.
C.A. 146/99
H.C. AM PARA 284/98
JULY 1 AND 4, 2002
Penal Code – Section 296 of the Code – Murder-Sentence of death – Failureof accused to give an explanation of incriminating circumstance-Circumstantial evidence.
Held:
.Even though the accused made a statement from the dock he was
silent as to what happened after the deceased was placed on the bed;the statement that he did not know anything about the incident cannotbe accepted.
. An accused person is entitled to remain silent but when the prosecu-
tion has established strong and incriminating evidence against him heis required to offer an explanation of the highly incriminating evidence.
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The accused has failed to bring an explanation of such circumstanceestablished againt him.
(III). Circumstantial evidence can be acted upon only if from the circum-stances relied upon the only reasonable inference to draw is the infer-ence of guilt. If the circumstances are consistent both with guilt andwith innocence then the case is not proved on circumstantial evi-dence.
Per Edirisuriya, J.
‘The hypothesis of innocence must be excluded by the circumstance reliedupon and the circumstances must point to one conclusion alone, i.e. theguilt of the accused”
APPEAL from the judgment of the High Court of Ampara
Cases referred to:
Rex v. Cockrone – Gurneys Reports pags 479
The King v. Geekiyange John Silva, – 46 NLR 73
U.G. Seetin and 4 Others v The Queen, – 68 NLR 316
J.M. Chandradasa v. The Queen, – 72 NLR 160
Baddewithana v. The Attorney General, -1990 1 SLR 275
The King v L Seedin de Silva, – 41 NLR 337
Illangathilaka and Others v Republic of Sri Lanka, -1984 2 NLR 39
Ranjit Abeysuriya, P.C. with Shamane Gunaratne for appellant.
PG. Dep. P.C. Additional Solicitor-General with H.N. Navavi, State Counselfor Attorney-General.
Cur.adv.vult.
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August 21, 2002EDIRISURIYA, J.
The accused-appellant in this case was indicted in the HighCourt of Ampara for having committed an offence punishable undersection 296 of the Penal Code.
He was tried by the High Court Judge of Ampara without ajury and a conviction for murder was entered against him.Accordingly the learned High Court Judge imposed a sentence ofdeath on him.
The first witness for the prosecution Dr. Mrs. Wijetunga testi-fied to the fact that she performed a post-mortem examination onthe body of Indranie Jayakody, the deceased in this case on 1997-05.26 (i.e. the day following the day of the incident in this case.)According to her there was bleeding from the nose and the ear andalso there were two contusions on both sides of the neck.
Immediately beneath these contusions, there was bleeding.Small blood vessels on both sides of the neck had been damaged.Hyoid bone was fractured. She had noticed a large contusion onthe front of the left side of the head. Corresponding to this contu-sion there was a rupture of small blood vessels inside the scalp.She said 11th rib on the left side of the body was fractured. She hadseen bleeding between ribs no. 8 and No. 9 on the left side. Alsothere were small haemorrhages in the peritoneum. There was asmall contusion on the right lobe of the liver. There were smallhaemorrhages in the spleen. There were two contusions on boththe kidneys. She said that death was due to an assault with a bluntweapon and the strangulation of the neck.
It appears that in view of this ambiguity regarding the causeof death the prosecution led the evidence of Dr. Bandara. He saidthat he obtained his MBBS degree in 1992 from the University ofPeradeniya. He further said that he has performed about 500 post-mortem examintions and about 500 medico legal examinations.The majority of these examinations were on persons who were vie-,tims of assaults. After having obtained his MBBS he said heworked as an analyst for a period of one year in the Forensic
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Department of the University of Peradeniya. His duties during thatperiod was to participate in the post-mortem examinations and toconduct lectures for medical students in this regard. It is his evi-dence that he participated in research work as well. At the time hegave evidence he functioned as the District Medical Officer of theBase Hospital Ampara. According to him he had given evidence onPost-Mortem Reports prepared by Doctors other than himself. Itappears that the learned trial Judge has treated him as an expertwitness on forensic medicine.
He said he is competent to express an opinion on the con-tents of the Post-Mortem Report (P3) prepared by Dr. Mrs. M.BWijetunga. The Post-Mortem Report (P3) states that death was dueto an assault with a blunt weapon and strangulation of the neck.According to Dr. Bandara there connot be two causes of death. Hewas of the view that strangulation of the neck was the immediatecause of death.
He said if medical attention was not given the rest of theinjuries other than injuries on the neck taken together would havecaused death in the ordinary course of nature. He further said thatDr. M.B. Wijetunga was wrong when she stated in the Post-MortemReport that there were no external injuries since there were twocontusions on either side of the neck. He said hyoid bone was frac-tured and there was bleeding above the contusions. According tohim the above injuries on the neck could have been caused byexerting a heavy pressure on the neck. He said a person could diewithin fifteen to thirty seconds after receiving such injuries. He wasof the view that these injuries are necessarily fatal and fracture ofthe hyoid bone could be caused by stangulation of the neck.
He said the deceased herself could not have squeezed herown neck and up-to now an incident of that nature has not beenrecorded.
The main witness Anjana said that on the day prior to the dayof the incident there was a quarrel between the father and themother. She said on that day her mother was assulted and severe-ly scolded by the father. The cause of the quarrel was the lendingof a bicycle to one Martin.
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According to her on the following day (i.e, 1997.05.25) hermother left the house and went to a neighbour’s house. The fathercame home drunk and slept on a mat. He woke up at about 4.00p.m. or 5.00 p.m. and went in search of the mother with heryounger brother. She said the father brought the mother andpushed her into the house.
The father slapped the mother and thereafter used the han-dle of the knife (p1) to stirke her on the head and the blunt side ofthe knife to strike her on the back of the chest.
It is also in her evidence that the father dragged the motherfour steps to the compound holding her by her hair.
Again he brought the deceased to the house and put herdown on the floor and trampled her stomach.
Thereafter she vomited blood. Stating that the mother hadapplied kerosene oil on her head the accused-appellant wanted thewitness and her younger brother to bring water to bathe the mother.
Subsequently the accused-appellant poured water on thedeceased, from the head down wards.
After pouring water the witness and her younger brother wereasked to leave the house. They entered the house after about 20minutes. During this 20 minute period only the father and the moth-er were inside the house. The witness did not hear her motherspeak. When they came into the house the father wanted their helpto dress up the mother and keep her on the bed. At the time shewas kept on the bed she did not speak and was unconscious. Thewitness was unable to say whether the mother was alive or dead atthis particular time. The witness and her younger brother watchedthe television and slept in the drawing room. Only the mother wasin the room.
Before they went to sleep the father locked the doors andwindows of the house. At about 12 p.m. or 1 a.m. she woke up dueto the noise of her aunt’s (mother’s sister) crying. She saw hergrand mother and her aunt crying near her mother.
In the early morning she came to know that her mother haddied. She also said that after the mother was kept on the bed her
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uncle came to the house and removed the bulb which was in theVesak lantern.
The witness Padminie Malkanthie in her evidence said thaton 1997-05-25 both the accused-appellant and the deceased cameto her house. It is her evidence that the accused-appellant sayingthat he would kill the deceased that day and demanded that sheshould come home. At this stage the deceased pleaded with themother to be with her at least that night. The deceased had alsosaid that it was likely that she would be killed that night. When themother tried to go with the deceased the accused-appellant haduttered filthy words. The witness pulled the mother’s frock.Thereafter the mother did not go with the deceased. When theaccused-appellant pushed the deceased ordering her to come withhim the deceased poured kerosene oil on her head saying it is farbetter to kill herself than die at the hands of another. She could notstrike a match stick due to the intervention of the witness and herlittle son.
Her younger brother and the accused came home in the
night.
The accused told the witness that the sister was not dead buther body was cold and wanted the witness to go with him and seethe deceased. She went to the sister’s house at about 1.00 a.m.and came to know that the sister was dead.
Another prosecution witness Ramanisge Martin said he livedin the house adjoining the house of the accused. His evidence wasthat on the day of the incident at about 6.30 p.m. the accused heldthe deceased by her hair and dragged her along the road, beatingher. She was dragged to the steps near the door.
She was taken to the verandah and was pushed into thehouse. When the witness was in his house he heard the deceasedplead with the accused not to assault her saying.
“gg dsSzsidesf eoeosfe) c5od raezstes)
After the prosecution case was closed the learned trial judgecalled for the defence. The accused made a statement from thedock to the following effect: On the day of the incident a minor dis-pute arose between the deceased and himself over his uncle’s
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bicycle being lent to one Martin. He brought his wife from herparental house. At the door steps of his house the deceasedabused him. He slapped her and she fell down. The accused heldthe wife by her hand and took her into the house. Thereafter shesat on the bed. The daugher and the son watched the television.
He went to sleep and at about 2.00 a.m. Since he felt thirstyhe went to the kitchen and drank some water. At that stage hewent to the room and spoke to the deceased. She appeared tohave fainted and did not speak. Thereafter he ran to the mainhouse and told “Mallie” (Probably the younger brother of thedeceased) that the deceased appeared to have fainted and something should be done.
The accused wanted the “Mallie” to inform the mother-in-law about the matter. Thereafter a crowd of people came from“Mallie’s” house with Tilakapala and examined the deceased. Themother-in-law massaged the deceased’s legs with khohombaleaves. People from the neighbourhood also came. OneSuriyaarachchi after having examined the wife declared that shewas unconscious. It was at that stage that the accused realizedthat his wife was dead. The accused said that he did not knowanything about the incident.
The learned High Court Judge after having analyzed theevidence for the prosecution has correctly held that the prosecu-tion has proved the follwing facts.beyond reasonable doubt:
Anjana did not strangle the deceased.
Mahesh Chinthake did not strangle the deceased.
On the day of the incident an outsider could not have enteredthe house.
An outsider did not enter the house and strangle thedeceased.
The deceased did not commit suicide.
Hyoid bone of the deceased was fractured and this could havebeen done by exerting pressure with the hands on either sideof the neck.
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In the circumstances the learned trial Judge has correctlyheld that a prima facie case was made against the accused. It isnoted that even though the accused made a statement from thedock he was silent as to what happened after the deceased wasplaced on the bed. I am of the view that the statement of theaccused that he did not know anything about the incident cannot be.accepted. An accused person is entitled to remain silent but whenthe prosecution has established strong and incriminating evidenceagainst him he is required to offer an explanation of the highlyincriminating circumstances established against him. The accusedhas failed to give an explanation of such circumstances establishedagainst him. In the circumstances I hold that the learned trial judgewas entitled to draw certain inferences which he deemed properfrom the failure of the accused to give an explanation of incrimina-tory circumstances. I am of the opinion that the principle laid downby Lord Ellenborough in Rex v. Cockroinei1) is applicable to thefacts of the instant case. This dictum has been followed withapproval and applied in Sb» Lanka.
Vide The King v Geekiyanage John Silvai2)
U.G. Seetin and 4 others v The Queeni3)
J.M. Chandradasa v The Queeni4)
Baddewithana v The Attorney General5)
The King v L Seeder de Silvai6)
llangathilaka and others v The Republic ofSri Lankai7)
It is admitted that this is a case of circumstantial evidence. Insuch a case circumstances relied upon should be consistent withthe guilt of the accused and inconsistent with his innocence. If thecircumstantial evidence relied upon can be accounted for on thesupposition of innocence then the circumstantial evidence fails.Circumstantial evidence can be acted upon only if from the circum-stances relied upon the only reasonable inference to be drawn isthe inference of guilt. If the circumstances are consistent both withguilt and with innocence then the case is not proved on circum-stantial evidence. The hypothesis of innocence must be excluded
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by the circumstances relied upon and the circumstances must pointto one conclusion alone, ie. the guilt of the accused. The learnedtrial Judge has in detail discussed these principles to be followed inappreciating circumstantial evidence in the instant case.
The learned trial Judge has rejected the statement made bythe accused from the dock. He has also stated that it does notthrow a reasonable doubt on the prosecution case.
In the circumstances I see no reason to interfere with thefinding of the learned High Court Judge and accordingly I affirm theconviction and the sentence.
Appeal is dismissed.
FERNANDO, J.I agree.
Appeal dismissed.