ANURUDDHA SAMARANAYAKE AND FOUR OTHERS

ANURUDDHA SAMARANAYAKE AND FOUR OTHERS
VS. ATTORNEY GENERAL

COURT OF APPEAL
RANJITH SILVA, J.
ABDUS SALAM, J.
CA 36-40/2007
HC COLOMBO 11/2000
APRIL 29, 2009
JULY 13, 2009
SEPTEMBER 30, 2009
NOVEMBER 18, 23, 2009
FEBRUARY, 10, 2010
MARCH 8, 2010
JULY 8, 2010
NOVEMBER 29, 2010
DECEMBER 6, 2010
FEBRUARY 2, 3, 8, 2011
MARCH 7, 2011

Penal Code - Section 113 (f) 162, 140, 146, 300 - Murder, unlawful assembly - Robbery' - Evidence Ordinance Section 8, Section 27, Section 113, 114 - Absence of proved motive - Proved absence of motive - Dock statement - Subsequent conduct of accused -Burden of proof - Judicature Act - Section 48 - Trial de novo - Same Counsel appearing for all accused - Inferences? Constitution Article 138 (1) - Criminal Procedure Code - Section 190 (5) - Section 338

The five accused -appellants along with the 6th accused [he was acquitted] were indicted on several counts - Conspiracy to murder one N - murder of one S - [wife of N] - being members of an unlawful assembly- Robbery.

In appeal it was contended that identification by a single witness un­accompanied by other evidence does not warrant a conviction - that motive was not established - that the trial Judge has misapplied the burden of proof - that the trial Judge failed to consider Section 114 [f] of the Evidence Ordinance - and the charges were not proved beyond reasonable doubt.
 

Held

(1) It is not right on the part of the trial Court to convict a possessor of alleged stolen property on the sole ground of recovery of it from him though the Court can draw a presumption under Section 114 of the Evidence Ordinance, simply on the recovery of stolen articles, no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and robbery. The culpability of this offence will depend on the other circumstantial evidence if any .

Per Abdus Salam, J.

"The case for the prosecution against the 1st accused is not a mere probability on a strong suspicion but goes beyond that degree".

(2) The learned High Court Judge has seriously misdirected himself with regard to law when he stated that the 1st accused was obliged to explain that the intruders did not have his co-operation to enter the house, by this erroneous finding and unsubstantiated obser­vation the trial Judge has misapplied the burden of proof and thus failed to appreciate the well-recognized concept of burden of proof and evidential burden.

(3) In criminal proceedings, the prosecution is not bound to assign or establish motive behind a criminal act. In terms of Section 8 of the Evidence Ordinance, any fact which shows or constitutes a motive or preparation for the commission of a crime is relevant. Although the prosecution is not required to establish a motive once a cogent and intelligent motive is established, that fact considerably advances and strength e ns the prosecution case.

(4) It is well settled law that the prosecution is not required to call all the witnesses whose names appear in the indictment as witnesses for the prosecution. Under the Evidence Ordinance to presume that a particular witness was not called because his evidence would be adverse to the prosecution is a presumption of fact and discretionary in nature. To draw this presumption an

important qualification is to satisfy the trial Judge that the witness concerned is necessary to unfold the narrative that is with-held by the prosecution and the failure to call such a witness is a vital missing link in the prosecution case.

Per Abdus Salam, J.

"The prosecution has invited us to take notice of the unusual arrangement made to represent the accused by one single Counsel as a relevant fact against them as well in determining their degree of responsibility in the commission of the crimes considering the extreme unusual conduct of the 1st accused and oth

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