SURAWEERA
vs.
ATTORNEY GENERAL

COURT OF APPEAL
H.N.J. PERERA. J.
JAYATILEKE. J.
CA 172/13
H.C. ANURADHAPURA 134/04
OCTOBER 13, 15, 16, 2014
NOVEMBER 5, 2014
JANUARY 12, 2015

Penal Code- S 367- Offences against Public Property Act No. 12 of 1982- Theft of a T. 56 gun from a home guard- identification of the gun as the exact  weapon that was stolen? - Beyond reasonable doubt ?

Held:

[1] No analyst report was marked in evidence and the prosecution has failed to summon the Government Analyst to give evidence.
 
[2) All the witnesses who were shown the gun have admitted that some numbers had been removed or scraped off or erased- Is it only the evidence of an expert which would be material to unravel narrative and  establish the identification of the production and the subject matter of theft.

Per H.N.J. Perera J.

The prosecution has failed to lead evidence and establish the fact that the weapon, the subject matter- is the identical weapon which had been issued to the Grama Sevaka beyond reasonable doubt.

APPEAL from the judgment of the High Court of Anuradhapura.,

Dr. Ranjit Fernando for accused-appellant.
Sarath Jayamanne DSG for Attorney General.

Cur.adv.vult.

March 9, 2015

H.N.J. PERERA. J.

The accused-appellant was indicted before the High Court of Anuradhapura for having committed a theft of a T 56 Fire Arm belonging to the Anuradhapura Police station thereby committing an offence under section 367 of the Penal Code read with section 5(1) of the Offences Against Public Property Act No. 12 of 1982.

After trial the learned High Court Judge convicted the accused-appellant for the charge of theft and sentenced him to 10 years rigorous imprisonment and to a fine of Rs. 1,000/-. Being aggrieved of the aforesaid conviction and sentence the accused-appellant had preferred this appeal to this court.

Half way the trial the accused-appellant had met with an accident and not attended court. Thereafter trial had continued in absentia with an Attorney-at-Law appearing on his behalf.

The main ground of appeal raised by the Counsel for the accused-appellant was that the T 56 gun which is the subject matter of the theft has not been identified as the exact weapon that was being stolen from the possession of the Home Guard J.A. Yasmau.

Facts pertaining to this case are briefly as follows.

AT 56 fire arm had been issued to Home Guard Yasmau. It been kept under a mattress in the room of a IP temporarily, at his quarters, with

instructions to return the weapon to H/Q. The IP had gone out of station and the accused was given accommodation for a few days in the said room. The IP on his return to the station two weeks later thereafter found that the weapon kept under the mattress had gone missing and the Home Guard also had not followed his instructions to return the weapon to H/Q.

The prosecution witness Amerasena, the officer who issued weapons in the armoury in Anuradhapura had testified that a T 56 was issued to Home Guard Yasmau on 17.10.1997 bearing No. 3614539. He states that in a gun the number can be found in three places, namely the butt, the glove and the gas chamber of the gun. He has further stated that the complete number of a gun can be found only on the butt. In the instant case the seven digit number in the butt has been completely erased. However, according to this witness the glove of T.56 gun contains only five digits and in this instance number in the glove 14539 remained intact and  it has not been altered. It is contended on behalf of the Respondent that the prosecution has established the identity of the gun through the numbers in the glove. Even the learned High Court Judge has observed the five digit number which is stated in the glove as 14539.

It is the position of the Counsel for the accused-appellant that the evidence of this witness does not establish the identity of the production by way of any serial number and in fact it would amount to evide