ANANDA
VS.
ATTORNEY GENERAL

COURT OF APPEAL
H. N.J. PERERA.J.
JAYATILEKE J.
CA 185/2013
H.C.MATARA 221/09
25.11.2014, 18.12.2014
02.03.2015,

Penal Code- Sections 295-S 296- Murder- Trial without jury-Convicted-Conviction passed on three dying declarations- Circumstances where dying declaration could form the basis of a conviction? Dying declaration should be corroborated?

The accused-appellant was convicted under Section 296 of the Penal Code and sentenced to death, [The trial Judge has believed and acted on the 3rd dying declaration to a police officer at the hospital].

In appeal, it was contended that the conviction which is solely based on three conflicting dying declarations is wholly unsafe and unreliable.

Held:

[1] Though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross-examination, there is neither a rule of law that a dying declaration cannot be acted upon unless it is corroborated.

[2] In a case where there are more than one dying declaration, if some inconsistencies are noticed between one and the other the Court has to examine the nature of the inconsistencies namely whether they are material or not.

Per H.N.J. Perera. J.-

"In this case there is evidence to the effect that the police officer recorded the dying declaration [third] in the presence of a nurse- prosecution has failed to list the said witness and to lead her evidence to corroborate evidence given by the police officer.

Per H.N.J. Perera J. -

"Fact remains that there was consistent evidence relating to the two dying declarations made to an independent witness which did not implicate the accused- appellant. The trial judge has clearly erred by relying on the uncorroborated dying declaration made to the police officer.

APPEAL from the High Court of Matara,

Case referred to :-

1. Khushal Rao vs. State of Bombay- 1958- SCR 552, 1958 AIR SC 22

Indica Mallawarachchi for accused appellant.

Dileepa Pieris SSC for Attorney General.

Cur.adv.vult.

April 2, 2015

H.N.J. PERERA, J.

The accused-appellant was indicted before the High Court of Matara for having committed the murder of Liyanathanthri Gamage Saranelis on 11.12.2007 an offence punishable under section 296 of the Penal Code. After trial without a Jury the learned High Court Judge had convicted the accused-appellant for the offence of murder under section 296 of the Penal Code and sentenced him to death. Being aggrieved by the aforesaid conviction and sentence the accused-appellant had preferred this appeal to this court.

Learned Counsel for the accused-appellant urged three grounds of appeal as militating against the maintenance of conviction.

(1) Conviction which is solely based on three conflicting dying declarations is wholly unsafe and unreliable.

(2) Reliance placed on the dying declaration made to the police officer by the learned trial Judge is legally and factually untenable.

(3) Learned trial Judge has drawn unfair and unwarranted inferences relating to absconding which is totally unsupported by evidence, consequently causing serious prejudice to the accused-appellant.

According to the prosecution witness S.Marambe Gunatilleke who was running a boutique opposite the deceased's house has testified that upon being informed that the deceased had been assaulted had gone to the deceased's house on 11/12/2007 around 7-7.30 a.m. and seeing the deceased lying in a reclining position had inquired from him as to what had happened at which point the deceased had intimated to him that someone had assaulted him. He has further testified that the deceased upon being probed further as to who the assailant was had informed him that he cannot remember and that he was not aware of the assailant.

The said witness has further testified that when the deceased was in Matara Hospital, the witness had visited him at the said Hospital and had in fact stayed