PIYARATNE
vs.
ATTORNEY GENERAL

COURT OF APPEAL
ANIL GOONERATNE. J.
WALGAMA J.
CA 203/2007
HC RATNAPURA 106/2004
OCTOBER 1, 2014
 
Penal Code Section 295 - Convicted for murder - Circumstantial evidence Value of same - Evidence Ordinance Section 27, Section 114, Section 165 - Recovery of a club-

The accused-appellant was convicted for the murder of a fellow security guard. The entire case was based on circumstantial evidence. As a consequence of a statement made to the Police, by the appellant a recovery of 2 gold rings from the appellant's house, a chain pawned to a Rural Bank, and nickel club in a swamp closer to the scene of the crime was recovered. Medical evidence revealed that injuries were caused by a heavy blunt weapon.

It was contended by the accused-appellant that the [1] trial judge erred in law on the principles relating to Section 27 recovery of a nickel rod [2] that items of circumstantial evidence were inadequate [3] no evaluation of the evidence [4] prosecution has not excluded the possibility of a third party committing the crime.

Held:

(1) Recovery under Section 27 of the nickel rod from a swamp and closer to the scene of the crime, which evidence remained unchallenged and the provisions of Section 27 have not been violated- for the accused had the knowledge and whereabouts of the facts discovered, non production of a material object is not necessarily fatal to a conviction. [This item was lost].

(2) In the context and circumstances of the case in hand, medical evidence reveal that the head injuries caused to the deceased could have been caused by a heavy blunt weapon. Accused party seemed to have played a passive role at the trial. Injuries are consistent with having been caused by an iron rod. When vital material facts in a case remains unchallenged it would lead to an inference of admission of fact.

(3) The defence did not attempt to dispute or offer an explanation for the confirmed possession of jewellery belonging to the deceased - nor has the accused disputed the pawned items of jewellery. A judge is free to exercise his power of inference and either draw the presumption or call for proof. When the presumption is drawn the accused party should be called upon to explain his position. The accused is expected to give a reasonably true explanation which is consistent with his innocence- No reasonable explanation had been given.

Per Anil Gooneratne. J.-

"No attempt was made to rebut the presumption ; in any event when somewhat of a passive role is played by the accused without probing and examining on material points it would weaken the defence case and substantiate and advance the prosecution case".

(4) The judgment is not totally devoid of reasoning - failure of the accused to challenge material points in cross examination support the findings of the trial judge.

(5) The material placed does not suggest the presence of a third party. The improbability of the accused's version which suggest falsehood fortify the prosecution case.

APPEAL from the judgment of the High Court of Ratnapura.

Cases referred to :

1. Ariyasinghe vs. AG- 2004 - 2 Sri LR 357
2. CA 173/2005- HG Kegalle 1576/2001-C. A. M. 16.3.2009

3. Sarwan Singh vs. State of Panjab- AIR SC [iii] 3652 at 3655
4. Himachal Pradesh vs. Thakur Dass - 1983 Cr LJ 1694 at 1701 V D. 1
5. Motilal vs. State Madhaya Pradesh- 1990 Cr LJ. NOC 125 MP
6. Sudu Banda vs. AG- 1998- 3 Sri LR at 378
7. K vs. Jayasena - 48 NLR 241
8. Banda vs Andre Appu -25 NLR 218
9. 5 CWR 236
10. Coore vs. Allis Appu- 7 NLR 327
11. Ariyasinghe vs. AG- 2004 2 Sri LR 357 at 398- 399
12. Cassim vs. Daya Mannar
13. Sajeewa alias Ukkuwa and others vs. AG- 2004 2 Sri LR 263 at 278-279
14. R Vs Exall
15. K Vs Guneratne

lndika Mallawaratchy for accused-appellant

Harippriya Jayasundera DSG for complainant-respondent.

Cur.adv.vult

June 20, 2015

ANIL GOONERATNE J.

This was a