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PREMAWANSHA V. ATTORNEY GENERAL
2009 SLR 2 205
PREMAWANSHA V. ATTORNEY GENERAL
COURT OF APPEAL
SISIRA DE ABREW, J.
ABEYRATNE, J.
CA 173/2005
HC KEGALLE 1576/2007
FEBRUARY16,17,2009
Penal Code - Murder - Robbery - Evidence of Doctor not challenged? Evidence should be accepted? Absence of cross examination - inferences? Judicial evaluation of circumstantial evidence? - Evidence Section 27 - Code of Criminal Procedure - Section 334 - Constitution - Article 138
The accused-appellant was convicted for the murder of one J and for the robbery of a watch - necklace and ear stud. He was sentenced to death on count 1. 10 yrs R.I. on count 2.
Held
(1) Absence of cross examination of prosecution witness of certain facts leads to inference of admission of that fact.
Per Sisira de Abrew, J.
"I hold that whenever evidence given by a witness on a material point is not challenged in cross examination it has to be concluded that such evidence is not disputed and is accepted by the opponent subject however to the qualification that he or she is a reliable witness. The Doctor who conducted the post mortem is a reliable witness".
(2) In a case of circumstantial evidence if an inference of guilt is to be drawn, such an inference must be the one and only irresistible and inescapable conclusion that the accused committed the offence.
Per Sisira de Abrew, J.
"Although there was no judicial evaluation of evidence learned trial Judge on the evidence led at the trial could not have arrived at any other conclusion other than the conclusion reached by him.
APPEAL from the judgment of the High Court of Kegalle,
Cases referred to :-
(1) Sanuan Singh vs. State of Punjab 2002 AIR (iii) 3652 at 3655 and 3656
(2) Bobby Mathew vs. State of Kamaiaka 2004 - 3 Cri W 3003
(3) Himachal Pradesh vs. Thakur Dassa - 1983 2 Cr W 1694 at 170 1
(4) Motilal vs. State of Madhya Predesh- 1990 - Cr W NOL 125 MP
(5) Ariyasinghe vs. A.G. - 2004 - 2 SRI LR 257 at 258
(6) K vs. Abeywickrema - 44 NLR 254
(7) K vs. Appuhamy - 46 NLR 128
(8) Podi Singho vs. K - 53 NLR 49
Dr. Ranjith Fernando for accused-appellant
Sarath Jayamanne DSG for the A. G.
March 19th 2009
SISIRA DE ABREW J.
The accused appellant in this case was convicted for the murder of a woman named Prema Jayasundara and for the robbery of a watch, gold necklace and ear stud from her possession. He was on count No.1 sentenced to death and on count No.2 to a term of ten years rigorous imprisonment. This appeal is against the said conviction and the sentence.
The facts of this case may be summarized as follows:
Around 5.00 p.m. on 22.11.97 Chaminda who was engaged in catching fish with his fishing rod in a stream called wee oya had to walk up on the bank of the stream since be was not successful in his attempts. He then saw the accused in the stream but could not see his hands as the water level was up to his neck level. When the accused appellant raised
his hands the body of the deceased, with the flow of water, fell from a rock in the stream. Thereafter the body of the deceased got washed awaydue to current of the water. The mother of the deceased, who arrived at this place on hearing a commotion, took the body, which was floating, to the shore. At this time the accused appellant, who came from the stream, went away showing the body of the deceased to the mother.
Dr. Abeysiriwardene who examined the accused appellant on 25th of November found several abrasions allover his body. There were vertically placed ten abrasions on his cheeks. He found abrasions on both sides of the neck, both hands, left buttocks, both legs and loin. According to the doctor these injuries could be caused by nails of another person during a struggle. The question whether these injuries could be caused while running in a jungle was answered in the negative by the doctor. The evidence of the doctor was not challenged by the learned defence counsel. When this evidence is not challenged can it be sa
