IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal against an order of the High Court under Section 331 of the Code of Criminal Procedure Act No: 15 of 1979.

Alagan Sasitharan Accused-Appellant Court of Appeal Case No:

HCC 107/15 HC Vavuniya Case No:

2084/10 v.

The Attorney General Respondent Before: Menaka Wijesundera, J.

B. Sasi Mahendran, J.

Counsel: Dr.Ranjith Fernando for the Accused-Appellant Dileepa Peiris, SDSG for the Respondent Written 26.08.2019 (by the Accused-Appellant)

Submissions: 01.06.2018(by the Respondent)

On Argued On: 24.07.2023 Decided On: 25.09.2023 Sasi Mahendran, J.

The 1st Accused (hereinafter referred to as ‘the Accused’) along with two others, Thiyagarajah Kumar and Thillaiyambalam Arunthawarjah, were indicted before the High Court of Vavuniya for the alleged murder of one Thiyagarajah Thiripuradasan (the Deceased). This offense is punishable under Section 296 read with Section 32 of the Penal Code.

The prosecution presented the evidence of seven witnesses and marked documents as P1 to P7. The Accused testified from the witness box. At the conclusion of the trial, the Learned High Court Judge acquitted and discharged the 2nd and 3rd Accused. However, the Accused was convicted of murder, and a death sentence was imposed.

Dissatisfied with this conviction, the Accused has appealed to this court.

In the instant case, it is imperative to note that the prosecution has heavily relied on the dying declaration made to the Police officer (PW5) and two statements by the Deceased to PW1 and PW2 concerning his cause of death. These statements were deemed admissible and relevant under Section 32(1) of the Evidence Ordinance. Before we analyze the evidence presented to us, we must consider how the courts have historically interpreted and accepted the concept of a dying declaration. We are mindful of the judgements relied by Justice Sisira De Abrew on considering the admissibility of the dying declaration as an item of evidence against the accused in the case of Ranasinghe v Attorney-General [2007], 1 S.L.R 218, His Lordship Sisira De Abrew held that:

“When a dying declaration is considered as an item of evidence against an accused person in a criminal trial the trial Judge or the jury as the case may be must bear in mind following weaknesses, (a) The statement of the deceased person was not made under oath, (b) The statement of the deceased person has not been tested by cross examination (c) That the person who made the dying declaration is not a witness at the trial”

He has relied on the following cases to strengthen his proposition.

In The King v Asirvadan Nadar [1950], 51 NLR, 322, His Lordship Gratiaen J held that:

“As the evidence was presented to the Jury at the trial, the statements contained in the dying deposition P9 formed to a very large extent the foundation of the case against the accused, and it was in our opinion imperative that they should have been adequately cautioned that, when considering the weight to be attached to this evidence, they should appreciate that the statements of the deponent had not been tested by cross-examination.

The reliance was also placed on the decision in Justinpala v. Queen [1964], 66 NLR, 409, His Lordship T.S Fernando J held that:

“While the necessity of a direction in regard to corroboration of a dying declaration or deposition must depend on the particular circumstances of each case, we think the jury’s attention should ordinarily be drawn to the fact that the declaration or deposition, as the case may be, has not been tested in the usual mode available to a party affected by it, viz. by cross examination. There may, of course, be other ways of testing the truth of such a statement, as for example, by the presence or absence of other evidence corroborating the statement. In this apparent conflict of decisions of this Court, we prefer to follow the earlier decision in Asirvadan Nadar’s case (supra) in so far as it requires a trial judge