UDAYA KUMARA & THREE OTHERS

UDAYA KUMARA & THREE OTHERS
VS.
 ATTORNEY GENERAL

COURT OF APPEAL
H.N.J. PERERA, J.
CA 215-218/2013
HC KEGALLE CASE NO. 2339/2006
DECEMBER 04, 2014

Penal Code Section 32 - Section 44(A), Section 380, Section 383 - Committing Robbery using fire arms - Identification faulty? -Legality of the Identification Parade - Identification is a question of fact - Evidence Ordinance - Section 25, Section 26 - Reliability and trustworthiness of Police Officers conduct?

The four Accused - Appellants were indicted for committing the robbery of a tipper using firearms and sentenced. The identification in the parade was the only evidence to convict the Accused - Appellants for the charge of robbery.

Held:

If a person witnessed committing a crime by an unknown person, the only way for the law enforcement authorities to justify the identification of the offender is to get them identified by the witness in an identification parade.

Per Jayathilake, J

"If there is no question regarding the legality of an identification parade of the above kind the identification made in the parade itself shall be sufficient evidence with regard to the identification of the offender"

There are no specific factors been mentioned by the witness which would have helped him to identify offenders.

Per Jayathilake, J.

The identification in the parade is the only evidence to convict the Accused for the charge of robbery. When considering all these factors, I am of the opinion that there is a reasonable doubt with regard to the identification of Accused - Appellant.

APPEAL from the Judgment of the High Court of Kegalle.

Cases referred to:

Nihal Perera and Atukoralage Sumathinanda Perera -CA 43- 44/2002

Regina Vs. Obsourue and Virtue - 1973 QB 678

Ram Nath Mahto Vs. State of Bihar - 1996 AIR S. C (11) 2511

Queen Vs. Julis - 65 NLR 505

Botholamuse Vs. Kularathna - 34 NLR 317

Anil Silva, PC for the 1st Accused - Appellant

Neranjan Jayasinghe for the 2nd Accused - Appellant

Indika Mallawarachchi for the 3rd accused - Appellant

Saliya Peiris with Susil Wanigapura for the 4th Accused - Appellant

Jayantha Jayasooriya, PC ASG for the complainant - Respondent.

December 19, 2014
P.W.D.C. JAYATHILAKE, J.

Sudath Priyashantha was a businessman who had been in transportation of metal and sand for 12 years by 2004. Usually, he transported sand during night as he did it illegally without obtaining a permit. On 04.01.2014 Priyashantha, his driver Jagath and two helpers, namely, Alloysias and Samantha went to Daigala, sand mine by the tipper bearing No: PGU 5018 owned by Priyashantha to bring a lorry load of sand. They left for Delgoda around 3.00 in the morning. As the road was not familiar to the driver Jagath, Priyashantha, himself drove the vehicle. Before driving a long distance, they had to stop the vehicle since there was a log across the road. This place was surrounded by shrub jungle. In two three minutes four persons who were covering their bodies from head to knee appeared before them. Priyashantha saw those

persons clearly by the headlights of the vehicle. Although their heads and ears were covered, their cheeks, noses, mouths and chins were visible. They were armed with firearms. One person carrying a T56 gun came up to Priyashantha who was in the driving seat and commanded to get down from the vehicle. Then all who were in the vehicle got down and they were taken into the jungle and tied to trees. After 5, 6 minutes, the vehicle was taken away. Priyashantha and the others remained in the same position until 5.00 a.m. and got themselves untied by other as they were tightened close to each other. Thereafter , they went to Avissawella Police Station and made a complaint.

An identification parade was held in the Magistrate Court, Ruwanwella on 03.08.2004 in connection with the complaint made by Priyashantha. Four suspects who were in remand custody were produced in this parade by the prison authorities. The 1st

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