SIVAKUMAR

VS.

ATTORNEY GENERAL

SUPREME COURT
DE ABREW, J.
SURASENA, J.
AMARASEKERA, J.
SC/APPEAL/39/2019
CA/294/2012
HC JAFFNA 996/2006
JANUARY 23, 2020

Murder and robbery-Identification of the accused-Evaluation of the accused's evidence

Held:

1. In a criminal trial when the accused elects to give evidence under oath, it is the duty of the trial judge to consider the evidence and state whether he accepts or rejects it.

2. If the evidence of the accused is acceptable or believable, he is entitled to be acquitted.

3. Even if his evidence is not believable, if it creates a reasonable doubt with regard to his guilt or in the prosecution's case, he is entitled to be acquitted.

4. If the accused elects to make an unsworn statement from the dock, if it is believed, it must be acted upon; if it raises a reasonable doubt in the case of the prosecution, the defence must succeed.

5. lf the accused does not rely on a general or special exception contained in the Penal Code, there is no burden on him to establish any fact. The burden is on the prosecution to prove the charge beyond reasonable doubt.

Cases referred to:

1. Ariyadasa v. Queen 68 NLR 66
2. Martin Singho v. Queen 69 CLW 21 at 22
3. Queen v. Kularatne 71 NLR 529

APPEAL from the Judgment of the Court of Appeal.

Asela B. Rekawa with Ramalingam Ranjan for the Accused-Appellant-Petitioner.

P. Kumararatnam, S.D.S.G., for the Complainant-Respondent-Respondent.

cur. adv. vult.

January 23, 2020

DE ABREW, J.

Heard both counsel in support of their respective cases. In this case the Accused-Appellant was charged for the murder of Thilagaraja Jegath Janani which is an offence punishable under section 296 of the Penal Code. The Accused-Appellant was also charged for the robbery of three rings, one pendent and one pair of bangles worth Rs.124,000/- from the possession of said Thilagaraja Jegath Janani which is an offence punishable under section 383 of the Penal Code.

After trial the learned High Court Judge by his judgment dated 01.11.2012, convicted the Accused-Appellant for the offence of culpable homicide not amounting to murder which is an offence punishable under section 297 of the Penal Code and sentenced him to a term of only 10 years Rigorous Imprisonment. The Accused-Appellant was also convicted for the offence of robbery and was sentenced to a term of 10 years R. I.

Being aggrieved by the said Judgment of the learned High Court Judge, the Accused-Appellant appealed to the Court of Appeal. The Court of Appeal by its Judgment dated 19.05.2017 affirmed both convictions of the Accused-Appellant and dismissed the appeal.

Being aggrieved by the said Judgment of the Court of Appeal, the Accused-Appellant has appealed to this Court. This Court by its order dated 11.02.2019 granted leave to appeal on the following question of law.

Have their Lordships' of the Court of Appeal erred in law by failure to consider evidence adduced in respect of the identification of the Petitioner.

The facts of this case as alleged by the prosecution may be briefly summarized as follows:

On the day of the incident Yesurasan, on hearing screams of a woman, ran to the place where the screams emanated and saw the Accused-

Appellant grappling with a woman. On hearing the shouts of Yesurasan, a toddy tapper named Marrie and his son Tiron Ranjith came to the scene.

When his son came to the scene, he saw a person hiding behind a parapet wall. He chased after this person as he ran away from the scene of the offence and attacked him with a club. However he says he could not identify him as there was mud on his face. He says that this person was a dark short person. But according to the identification parade, he notes the Accused-Appellant is a 5 and % feet tall person. The Accused- Appellant was arrested 11 months after the incident. Then an identification parade was held in order to identify the Accused-Appellant. Yesurasan, at the identif