KUMARA DE SlLVA AND 2 OTHERS VS. ATTORNEY GENERAL

KUMARA DE SlLVA AND 2 OTHERS VS. ATTORNEY GENERAL

COURT OF APPEAL
IMAM. J.
SARATH DE ABREW, J.
CA 4/2003
HC BALAPITNA 332
NOVEMBER 28, 2006
MARCH 27, 2007
JUNE 27,2007
AUGUST 29,2007

Penal Code - Section 296 -Penal Code Section 32 - Offence of murder - culpable homicide not amounting to murder - Surrender of accused - does it amount to an inference of guilt? - Evidence Ordinance Section 2 (11), Section 27, Section 114 (f) - Evaluation of dock statement - Absence of common intention to attach vicarious liability - reconciling of two versions -Duty of an appellate Judge - guidelines

The 3 accused-appellants after trial without jury were convicted for the murder on the basis of common intention and sentenced to death. It was contended that, the trial Judge made no efforts to reconcile the two totally contradicting reasons adduced by 2 eye witnesses that medical evidence does not support the version of the actions, and that presumption under Section 114 (4) should be involved against the prosecution and there were misdirection and that trial Judge failed to evaluation, reject or accept the dock statement.

Held

(1) Credibility is a question of fact, not of law. The acceptance or rejection of evidence of witnesses is therefore a question of fact for the trial Judge.

(2) Evidence must be weighed and never countered, in reviewing the veracity of a witness appellate Courts enforce certain rules and guidelines as they do not have the benefit of observing and questioning the witnesses first land.

(1) Court of Appeal may look into the witness's statement to the Police to test the version of witnesses

(2) Due weight should be attached to the opinion of the trial Judge

(3) Appellate Court should examine whether the trial Judge has drawn proper inferences from specific facts that are proved

(4) Where untainted evidence could be safely separated from inaccurate evidence due to faulty observation, exaggerations and embellishments, Court is entitled to act on such untainted evidence and discard and sever inaccurate and false evidence.

(3) Credibility of a witness may be impugned by employing the tests of probability and improbability consistence and inconsistence, interestedness and disinterestedness and spontaneity and belatedness.

(4) Question of an adverse presumption under Section 114 (f) arises only where a witness whose evidence is necessary to unfold the narrative is willfully withheld by the prosecution and the failure to call such witness constitutes a vital missing link in the prosecution case.

(5) Dock statement is an unsworn statement lacking the probative value of formal evidence tested and filtered through crossexamination it is still evidence of a lesser weightage recognized in our law.

Per Sarath de Abrew. J.

"Even though it is desirable that the Judge should have specifically stated her findings as to the credibility of the dock statements in my mind this alone has failed to constitute a failure of justice taking into consideration the direct evidence adduces against the accused".

(6) Careful perusal of the evidence led reveals that there is absolutely no evidence to establish the nexus between the two incidents and also that there was a pre-arranged plan among the accused to act in concert by sharing a common intention to kill the deceased. Trial Judge has clearly misdirected herself in arriving at this

conclusion what is based not on substantial evidence but on mere conjecture.

Per Sarath de Abrew. J.

"I am inclined to award the benefit of the doubt to the accused and detach them from the vicarious liability attached to the principle of common intention.

Held further

(7) No single injury caused by any single accused has created an antecedent probability of death. Charge of murder would fail.

(8) As to the mens rea of the accused at the time of assault there is no conclusive proof whether any one or more o

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