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2022 Supreme(SRI)(CA) 403


IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal under and in terms of section 331 of the Code of Criminal Procedure Act No. 15 of 1979 as amended.
Hon. Attorney General, Attorney General’s Department, Court of Appeal Case Colombo 12.
No. HCC/255/19 Complainant High Court of Polonnaruwa Vs.
Case No. 051/14 Beligolle Sujith Thushara Jayasinghe, No.220, Medagama, Medirigiriya.
Accused AND NOW BETWEEN Beligolle Sujith Thushara Jayasinghe, No.220, Medagama, Medirigiriya.
Accused-Appellant Vs.
Hon. Attorney General, Attorney General’s Department, Colombo 12.
Complainant-Respondent BEFORE : K. PRIYANTHA FERNANDO, J (P/CA)
WICKUM A. KALUARACHCHI, J COUNSEL : Darshana Kuruppu with Sajini Elvitigala for the Accused-Appellant Sudharshana De Silva, DSG for the Respondent WRITTEN SUBMISSION TENDERED ON : 26.06.2020 (On behalf of the Accused-Appellant)
31.07.2020 (On behalf of the Respondent)
ARGUED ON : 26.05.2022 DECIDED ON : 19.07.2022

Advocates:
Darshana Kuruppu with Sajini Elvitigala for the Accused-Appellant Sudharshana De Silva, DSG for the Respondent

WICKUM A. KALUARACHCHI, J.

The accused-appellant was indicted in the High Court of Polonnaruwa on the first count of possessing a T-56 automatic weapon, an offence punishable under section 22(3) read with section 22(1) of the Fire Arms Ordinance No. 33 of 1916 as amended by Act No. 22 of 1996; and on the second count of possessing of 30 bullets, an offence punishable under section 27(1)(a) read with section 9(2) of Explosives Act No. 21 of 1956 as amended by Amendment Acts No. 33 of 1969 and No. 18 of 2005. After the trial, the learned High Court Judge convicted the appellant and imposed life imprisonment for the first count and a fine of Rs. 15000/= with a default term of six months simple imprisonment for the second count. This appeal is preferred against the said convictions and sentences.

The facts of the case, according to the prosecution, may be briefly summarized as follows:

On the day in question, around 6.30 a.m., the Chief Inspector of Police Station, Hingurakgoda (PW-1) received information from a private informant about a group of armed persons going for a robbery. He arranged a raid and a group of police officers went with him to “Marasinghe estate” on Medirigiriya road. The ‘Elf’ lorry mentioned in the information was searched by him and the other officers. The appellant was seated in the front left with a dark blue colored bag. When this bag was opened, there was a T-56 weapon and a magazine with 30 bullets.

Both parties have tendered written submissions prior to the hearing of the appeal. At the hearing, the learned counsel for the appellant advanced his arguments on the following three grounds:

I. The learned trial Judge was in error when he failed to consider the serious contradictions in the prosecution story.

II. The prosecution has failed to prove beyond reasonable doubt the chain of production.

III. The learned trial Judge has misdirected himself in law by failing to evaluate the evidence of the prosecution and the defence in the proper perspective.

Apart from the aforesaid grounds of appeal, the learned counsel for the appellant pointed out that PW-1 stated in his evidence that the raid was carried out after receiving information on 27.09.2010. However, the learned counsel submitted that according to the charges, the offences were committed on 28.09.2010, and thus it was not proved that the offences were committed on the date mentioned in the charges.

However, it is apparent that it is only a mistake because PW-1 stated in cross-examination that the accused-appellant was arrested on 28.09.2010 at 11.50 hours. (The said answer of PW-1 is found on page 57 of the appeal brief). In addition, PW-20 who went for the raid has also explained that the raid was carried out on 28.09.2010 (Page 193 of the appeal brief). Therefore, the date of the raid is not an issue and no prejudice is caused to the appellant as a result of the above mistake. The learned counsel for the appellant has brought to the notice of the court a vital discrepancy. PW-1 stated that the serial number of the T-56 weapon purported to be recovered from the appellant is No. 28032467 (Page 48 of the appeal brief). PW-1 stated on another occasion that the serial number mentioned in the notes is 38032467 (Page 50 of the appeal brief). In fact, on the same page, in response to a question, PW1 stated correctly that the serial number mentioned in the notes is 28032467. Only when the learned state counsel who prosecuted the case asked whether the number mentioned in the notes is 38032467, PW-1 answered in the affirmative. Apart from that, the government analyst has stated, in one instance, that the serial number of the weapon is 18032467. (Page 88 of the appeal brief). Here also, only the first digit of the serial number differs. However, this is a discrepancy that should be carefully examined because the serial number is the best method of identifying a gun. Also, if the gun examined by the Government Analyst does not have the same serial number as the gun alle

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