LUKSHMAN VS. REPUBLIC OF SRI LANKA

LUKSHMAN VS. REPUBLIC OF SRI LANKA

COURT OF APPEAL
SISIRA DE ABREW. J
UPALY ABEYRATNE. J
CA 17/2005
27, 28, 29, 30 MARCH 2009

Penal Code- Murder-Dying declaration- When Could it be admitted? Presumption of Innocence - Ellenborough principle

The accused-appellant was convicted and sentenced to death - for the murder of one F. In appeal it was contended that, the dying declaration should not have been accepted since the Police witness has failed to produce the piece of paper in which he noted the dying declaration and that the accused did not offer an explanation.

Held

(1)Where a dying statement is produced three questions arise for the Court. Firstly whether it is authentic. Secondly if it is authentic whether it is admissible in whole or in part. Thirdly the value of the whole or part that is admitted.

(2) Sgt-Sirisena's evidence was corroborated by the evidence of others. There were no contradictions or omissions marked from the evidence of Sirisena - He is a truthful witness where evidence can be accepted.

Per Upaly Abeyratne, J.

"After the conclusion of the case for the prosecution the appellant exercising his legal rights remained silent in the dock, therefore the High Court Judge may have considered the applicability laid down in R vs. Lord Cochrane and others".

APPEAL from the judgment of the High Court of Gampaha

Cases referred to:-

1. Dhannawansa Silua and another vs. Republic of Sri Lanka - 1981- 2 Sri LR 439

2. R us. Cochrane and others - 1814 Gurneys Report - 479

3. Rajapaksha Devage Somaratne Rajapaksa and others us. A.G. -2010 - 2 Sri LR 113

 Tirantha WalaUiadda PC with Indica Mallawaratchi for accusedappellants.

S. Thurairajah DSG for respondent.

June 23rd 2009

UPALY ABEYRATHNE, J.

    This is an appeal preferred against the conviction and sentence imposed upon the Accused Appellant (hereinafter referred to as the Appellant) by the learned High Court Judge of Gampaha date 24.02.2005. The Appellant in this case was indicted in the High Court of Gampaha for having committed murder of a woman named Abdul Hannan Nabisha alias Farthima. After trial the Appellant was found guilty for the said offence and sentenced to death. Being aggrieved by the said conviction and sentence the Appellant preferred the instant appeal to this court.

    At the hearing of this appeal, the learned President's Counsel for the Appellant submitted that the dying declaration of the deceased cannot be accepted since the witness sergeant Sirisena has failed to produce the piece of paper in which he noted the dying declaration.

    I now deal with the said submission. According to the evidence of Mohomad Safi Mohomed Jirfy, who was an eye  witness to the incident, the deceased who was his mother's sister (aunt) had a vegetable stall near his house. On

21.01.2000, at about 9.30 a.m. while the witness was in his shop he heard a family voice. He recognised that voice as his aunt's voice. On his way to inquire about the voice he again heard the same voice. He saw the appellant was pulling out some object from his aunt's abdominal area. At that time the witness was about 3 feet away from the place of the incident. He identified the person who attacked his aunt as Sarath Luxman (the appellant). Therefore the appellant got on to a motor cycle, raised his hand with the object he attacked the deceased and said Thereafter he left the place of the incident. The witness noticed the object which was in the appellant's hand as of a knife. The witness instantly attended to his aunt, put her in to a three-wheeler and rushed to the police station. On their way to the police station the deceased said to the witness that "Locki stabbed me with a knife.

    " When they reached the police station sergeant Sirisena came to the three-wheeler. Then the deceased said to sergeant Sirisena that Thereafter the deceased was admitted to the hospital. She succumbed to the injuries infl

Click Here to Read the rest of this document