KELUM AND OTHERS

Vs.

ATTORNEY GENERAL

COURT OF APPEAL
KARUNARATHNA, J.
GURUSINGHE, J.
CA/HCC/219-222/2014
HC COLOMBO 6929/13
JULY 28, 2021

Criminal law-Penal Code, sections 32, 138, 364-Evidence Ordinance, sections 134, 145, 157-Murder-Gang rape-Unlawful assembly Common intention-Identification of the accused-Identification parade notes-Marking contradictions-Omissions-Purpose of sentence

Five accused were indicted in the High Court inter alia for unlawful assembly, murder, attempted murder and gang rape- offences punishable under sections 140, 146, 300, 317, 383, 410, 345, 364(2)(g) and 296 of the Penal Code. After trial, the 5th accused was acquitted and the others were convicted of the offences except for murder and sentenced to jail. Although the 1st to 4th accused appealed against the convictions to the Court of Appeal, only the 2nd accused pursued his appeal.

The main arguments before the Court of Appeal were: failure to consider the dock statement and the evidence of the main eye-witness properly; misinterpretation of sections 32, 140 and 146 of the Penal Code.

Held:

1. Although the main eyewitness failed to identify the 2nd accused when he testified in court two years and four months after the

incident, his identification of that accused at the identification parade soon after the incident is valid. After a witness identifies a suspect at the identification parade, he is not informed of the accuracy of his identification. At the end of the parade, the Magistrate makes notes as to what happened at the parade including the identification of suspects. These notes are admissible at the trial regarding identification in addition to witness testimony.

2. In terms of section 145 of the Evidence Ordinance, when a witness is to be contradicted, his attention must first be drawn to the fact of his having made a previous statement and thereafter, more specifically, to the parts of the statement which are to be used for the purpose of contradicting him. It is only then that the actual writing on which the witness is contradicted can be proved.

3. The evidence of a witness cannot be disregarded or considered a contradiction merely because he made improvements to his police statement, if the facts stated for the first time before court are in the nature of elaboration.

4. Omissions do not stand in the same position as contradictions. The rule regarding consistency and inconsistency is not strictly applicable to omissions.

5. Absence of cross-examination of prosecution witnesses on certain facts leads to an inference of admission of those facts.

6. No person accused of a crime is bound to offer any explanation either of his conduct or the suspicious circumstances attached to him. But when the prosecution establishes a strong prima facie case against an accused, he should offer a reasonable explanation.

7. A deliberate lie by the accused on a material point may corroborate the prosecution case if it was done on realisation of guilt and fear of the truth.

8. A dock statement, though considered evidence, is subject to the infirmity that it was not given under oath and thus cannot be subjected to cross-examination. The accused merely making an exculpatory statement from the dock without having put any suggestions to that effect to the prosecution witnesses has little value.

9. When an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly or such members know that such offence was likely to be committed in prosecution of that object, all the members become liable for the offence by operation of the principle of vicarious liability.

10. When a criminal act is committed by several persons in furtherance of the common intention, each such person is liable for that act in the same manner as if it was done by him alone. Whether the circumstances establish that the accused acted in furtherance of the common intention is