SARATH FERNANDO VS. ATTORNEY GENERAL

SARATH FERNANDO VS. ATTORNEY GENERAL

COURT OF APPEAL
SISIRA DE ABREW J. (ACTING P/CA)
JAYATILAKA, J.
CA 270/2012
HC MATARA

Penal Code - Section 286, Murder - Robbery - Code of Criminal Procedure Act, No 15 of 1979 - Section 334 - Trial Judge - Misdirection - Appellate Court has power to sustain a conviction? Ellen borough principle - Is the establishing of the time of death vital? Rules governing circumstantial evidence.

The accused-appellant was convicted of the murder of one R and sentenced to death, he was also convicted for robbing a three wheeler from the possession of the deceased and sentenced.

The appellant contended that there were misdirections - non directions. it was contended by the accused that the police did not establish that the ring discovered was that of the deceased and that the prosecution failed to establish the time of the death.

Held

Per Sisira de Abrew. J. [Acting P/CA]

"The learned trial Judge committed a misdirection as regards the ring. The learned trial Judge has concluded on the evidence that, the 2nd accused had pawned the ring and that the ring discovered from the pawning Centre belonged to the deceased there is no concrete evidence to arrive at this conclusion."

[1] though the trial Judge committed a misdirection, the Court of Appeal in terms of section 334 proviso Criminal procedure Code had a power to sustain a conviction.

[2] the accused has failed to offer an explanation to the incriminatory evidence the principle laid down by lord Ellen borough applies. the prosecution has put forward a strong prima facie case and it is in the power of the accused to offer an explanation to the said incriminatory evidence.

[3] As regards the contention that the time of death should be established the body was found after 5 days of the incident. it was in a highly decomposed position K. vs. Appuhamy(7) could be distinguished.

[4] In a case of circumstantial evidence if the Court is going to arrive at a conclusion of guilt such an inference must be the one and only, irresistable and inescapable inference that the accused committed the crime.

In order to justify the inference of guilt from purely circumstantial evidence the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.

APPEAL from the judgment of the high Court of Matara.

Cases referred to:

1. K vs. Musthapa Lebbe 44 NLR 505
2. M.H.M. Lafeer vs. The Q -74 NLR 246
3. R. vs. Lord Cochrane and others 1814 Gurneys reports 479
4. Sumanasena vs. Attorney General 1999 3 Sri LR 137
5. Baddewithana vs. Attorney General 1990 1 Sri LR 275
6. Boby Mathew vs. State of Karnataka 2004 Cr CJ Vol III
7. K vs. Appuhamy 46 NLR 128
8. K vs. Abeywickreme 44 NLR 254
9. Podi Singho vs. The King 53 NLR 49
10. Emperor vs. Browning 1917 Cr LJ 482

Indica Mallawaratchi for accused appellant.

Yasantha Kodagoda DSG for AG.

12th February 2014

SISIRA J. DE ABREW, J (ACTING P/CA)

Accused appellant is present in Court produced by the prison Authorities.

Heard both Counsel in support of their respective cases. The accused appellant in this case was convicted of the murder of a man named, Maithripala Rubasinghe and was sentenced to death. he was also convicted for robbing a three wheeler bearing registration no. 203-1067 from the possession of the said deceased person and was sentenced to a term of 7 years rigorous imprisonment and to pay a fine of Rs. 10,000/- carrying a default sentence of 6 months rigorous imprisonment. Being aggrieved by the said conviction and the sentence he has appealed to this Court.

The accused-appellant is the 2nd accused in this case. The 1st and the 2nd accused both were charged for the offence of murder and the offence of robbery. the 1st accused too was convicted for both offences. The 1st accused was tried in absentia. He has not appealed against the conviction.

Facts of this case may

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