ARUNA ALIAS PODI RAJA VS. ATTORNEY GENERAL

ARUNA ALIAS PODI RAJA VS. ATTORNEY GENERAL

COURT OF APPEAL
SISIRA DE ABREW, J.
UPALY ABEYRATNE, J.
CA 7 1 / 2003
HC BADULLA 67/2000
AUGUST 31ST, 2009

Penal Code - Section 365 - Evidence Ordinance - Section 27  Recodes - Dock Statement - Accused proved to be innocent - Is them burden on the Accused to proved anything? men is he expected to offer an explanation? - Ellenborough principle - Exeception?

The accused - appellant was convicted of the murder of a man called  W and was sentenced to death.

In appeal it was contended that the trial Judge failed to judicially  evaluate the items of circumstantial evidence and the reliance made by the trial Judge on Section 27 recoveries was erroneous.

Held:

(1) When an allegation of murder is leveled against a person if he had acquired the knowledge of the items he would have divulged  the way he acquired such knowledge in his dock statement which is not even subjected to cross examination. This is the normal  behavior. The conditions reached by the trial Judge that the appellant acquired the knowledge of the items recovered by an act done  by him is not objectionable.

(2) An accused person against whom a criminal charge is leveled is always presumed to be innocent until his guilt is proved. There is  no burden on the accused to prove anything but when strong and cogent evidence is established, an accused person in a criminal  case is expected to offer an explanation of the highly incriminating circumstances established against him.

As a rule a party's failure to explain damning facts cannot convert in-sufficient evidence into prima facie evidence, but it may cause prima  facie evidence to become presumptive.

Per Sisira de Abrew, J.

    "When prosecution established a strong incriminating evidence against an accused in a criminal case the accused in those  circumstances is required to offer an explanation of the highly incriminating evidence established against him and the failure to offer such explanation suggests that he has no explanation to offer".

APPEAL from the judgment of the High Court of Badulla.

Cases referred to:-

1.    Ariyasinghe vs. Attorney General (G.C. Wickrenasinghe abduction cave)- 2004 2 Sri LR 357

2.    Rex vs. Cochrane and others - 18 14 - Gueney's Reports at 479

3.    King vs. Seeder Silua 41 NLR 337 at 344

4.    Peiris vs. Appuhamy 43 NLR 4 12 at 4 18

5.    King vs. Endoris 46 NLR 499 (per Soertsz, J.)

6.    Inspector Arendstz us. Wilfred Peiris 10 CLW 12 1 at 123

7.    Queen vs. Seetin 68 NLR 160

8.    Chandradasa us. Queen 72 NLR 160

9.    Beddavithanu vs. A. G. 1990 1 SLR 275 at 278

10.    Republic vs. nlangathihke 1984 2 Sri LR 38

11.    Rex vs. Burdett (1820) 4B and ALd 161, 162

12.    Chandradasa vs. Queen 72 NLR 160

 13.    Queen vs. Santin Singho 65 NLR 445

14.    State of Tamil Nadu vs. Rajendran 1999 Cri L.J. 4552

15.    Boby Mathew vs. State of Karanatake 2004 Cri L.J. Vol3P 3003 at 3015.

Dr.Ranjith Fernando for the accused-appellant.
Dappula de Livera DSG for the Attorney General.

October 09th 2009

SISIRA DE ABREW J.

    The accused appellant in this case was convicted of the murder of a man named Illepemma Archchilage Wimalasena  and was sentenced to death. This appeal is against the said conviction and the death sentence. The second accused who was charged with the same offence was discharged at the end of the prosecution case. Learned Counsel for the appellant  urged the following grounds of appeal as militating against the maintenance of the conviction.

1.    The learned trial judge failed judicially to evaluate the items of circumstantial evidence.
2.    Reliance made by the Learned High Court Judge on Section 27 recoveries was erroneous.

    According to the prosecution case the deceased who was working in a mine in the morning of 3.11.95 left for his  work place but he never returned home. At the time he left his home

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