ARIYADASA
V
ATTORNEY GENERAL
 

COURT OF APPEAL
RANJITH SILVA, J
SISIRA DE ABREW, J
CA 14212003
HC MATARA 143/96
SEPTEMBER 12, 13, 14, 2007

Penal Code - Section 294 - Section 296 - Section 315 - Eye witness not a credible witness ? - Disturbing a finding with regard to acceptance or rejection of a testimony of a witness ? - Section 294 Ingredients ? - Dock statement - 'Approach in evaluating? - Constitution Article 138 - Criminal Procedure Code Section 334.

The accused - appellant was convicted, of murder and sentenced to death he was also convicted of causing hurt to one K and sentenced to 6 months rigorous imprisonment.

It was contended that, the eye witness was not a credible witness, and that Injury No. I was not caused by the accused - appellant and further that the other 12 cut injuries have not caused the death of the deceased. It was further contended that the reason given by trial Judge in rejecting the dock statement  was erroneous.

Held:

(1) Court of Appeal will not lightly disturb a finding of a Judge with regard to the acceptance or rejection of a testimony of a witness , unless It is manifestly wrong, when the trial Judge has taken such a decision after observing the demeanor and the deportment of a witness. The contention that the eye witness was not a credible witness is rejected.

Held further:

(2) The prosecution must prove the following facts before it can bring a case under Section 294 .

(i) It must establish quite objectively that a bodily injury is present.
(ii) The nature of the injury must be proved. These are purely objective investigations.
(iii) It must be proved that there was an intention to inflict that particular bodily injury, that is to say that it was not accidental or unintended or some other kind of injury was intended.
Once these elements are proved to be present, the Inquiry proceeds further.
(iv) It must be proved that the injury is sufficient to cause death in the ordinary course of nature.
This part of the inquiry is purely objective and inferential and has nothing to do with the intention of the offence.

(3) Once these four elements are established the offence is murder under Section 294

(v) It does not matter that there was no intention to cause death. This part of the inquiry is purely objective and inferential and has nothing to do with the Intention of the offence.
(vi) It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature.

Once the intention to cause bodily injury actually found to be present is proved, the rest of the inquiry is purely objective and the only question is whether, as a matter of purely objective Inference, the injury is sufficient in the ordinary course of nature to cause death.

HELD FURTHER:

(4) The dock statement is a bare denial except for the fact that he was at a certain place at the time of the incident. The dock statement does not create a reasonable doubt in the prosecution case - therefore though the trial Judge gave different reasons he has correctly rejected the dock statement.

Per Sisira de Abrew, J.

"The reason given by the trail Judge that he was rejecting the dock statement on the basis that the prosecution story was more probable than the defence story appears to be erroneous - the observation that the appellant should have given evidence is also wrong. We have considered the strong evidence led by the prosecution, in our opinion the above statements have not occasioned a miscarriage of justice - and no prejudice has been caused to the accused appellant"
 

APPEAL from the judgment of the High Court of Matara.

Cases referred to :
 

(1) Fradd v. Brown and Co . 20 NLR 282 (PC)
(2) Alwis v. Piyasena Fernando - 1993 - 1 Sri LR 119
(3) Virsa Singh v. State of Punjab - AIR 1958. Vol 45
(4) Rajwant Singh v. State of Kerala - AIR 1966 SC 1874