RATHNAPALA

Vs.

ATTORNEY GENERAL

COURT OF APPEAL
P. FERNANDO, J. (P/CA)
ABAYAKOON, J.
CA/HCC/162/2019
HC ANURADHAPURA 89/2012
OCTOBER 4, 2021

Criminal law-Kidnapping and murder-Penal Code, sections 296, 354-Admissibility of evidence obtained illegally-Prejudicial effect versus probative value-Circumstantial evidence

The accused was indicted for the kidnapping and murder of a child. The prosecution relied on circumstantial evidence. The body of the child was alleged to have been recovered upon the accused's statement made to the police and the prosecution led the said evidence under section 27 of the Evidence Ordinance. After trial, the accused was convicted and sentenced to death by the High Court. The accused appealed to the Court of Appeal where he contended that he was severely assaulted and kept at the police station for five days and that the section 27 recovery was false and should not be relied upon. The prosecution submitted that

although there was an issue about the date of arrest, the evidence as to the recovery of the body of the deceased in terms of section 27 of the Evidence Ordinance should be taken into consideration.

Held:

1. It is clear that the police have arrested the accused at least two days prior to the date the body of the child was found. The evidence does not become inadmissible merely because it has been obtained illegally, improperly or unfairly. The test is to weigh the prejudicial effect against the probative value. Evidence can be excluded if the judge is of the opinion that the prejudicial effect on the jury was likely to outweigh its probative value.

2. The body of the deceased child was discovered upon the statement made to the police by the accused. The prejudicial effect on the accused by keeping him in custody for a longer period of about two days than is permitted by law does not outweigh the probative value of the evidence adduced at the trial. The High Court did not err by admitting the evidence of the recovery of the body of the deceased child in terms of section 27 of the Evidence Ordinance.

3. Where there are no eye-witnesses to substantiate a charge and the prosecution reties solely on circumstantial evidence, it is incumbent on the prosecution to establish that the circumstances it relies on are consistent only with the guilt of the accused and not with any other hypothesis. The prosecution has established this in the instant case.

Cases referred to:

1. Sacheverell Stanley Walton Houghton Stephen Anthony Franciosy (1979) 68 Criminal Appeal Reports, Vol. 68, 1979 at 197
2. R v. Leathern [1861] 8 Cox CC 498
3. R v. Sang [1980] AC 402; [1979] Crim LR 655
4. Shankarlal Gyarasilal Dixit v. State of Maharashtra [1981] Cri LJ 325
5. Junaiden Mohmed Haaris v.Attorney General (SC/APPEAL/118/17, SC Minutes of 09.11.2018)

APPEAL from the Judgment of the High Court of Anuradhapura.

Nihara Randeniya for the Accused-Appellant.

Shanil Kularatne, S.D.S.G., for the Respondent.

cur. adv. vult.

October 29, 2021

P. FERNANDO, J. (P/CA)

1. The accused appellant (hereinafter referred to as appellant) was indicted in the High Court of Anuradhapura for one count of kidnapping from lawful guardianship, punishable in terms of section 354 of the Penal Code and one count of murder, punishable in terms of section 296 of the Penal Code. After trial the learned High Court Judge convicted the appellant on both counts and was sentenced to 5 years rigorous imprisonment and a fine of Rs. 5000/- for the first count of kidnapping and sentenced the appellant to death for the 2nd count of murder. Being aggrieved by the above conviction and the sentence, the appellant preferred the instant appeal. The learned counsel for the appellant urged the following grounds of appeal;

I. That the learned High Court Judge failed to consider the well settled principles of law relating to a case entirely based on circumstantial ev