Law of Evidence - value of voice identification - alibi - Belatedness of Witness - The Tests of Probability and Improbability and the Test of Spontaneity - evaluation of the dock statement - applicability of the Ellenborough Principle - Criminal Procedure Code, S.21
IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
Kaludev Rajaliyes de Silva
v.
The State
C.A. Appeal No.10/2005
Present -
S.I. Imam, J. & Sarath de Abrew,J.
President's Counsel D.S. Wijesinghe appears with Miss. Kaushalya Molligoda for the Accused-Appellant.
DSG Navarathna Bandara appears for the AG.
Decided on-
02.04.2008
S.I. Imam,J.
This is an Appeal tendered by the Accused-Appellant (henceforth sometimes referred tows the "Appellant") seeking to (a):- set aside the conviction and the sentence imposed on the "Appellant" by the learned High Court Judge of Galleon 18.02.2005. (b) Acquit the Appellant" and (c) Grant such further and other relief as to this Court shall seem meet.
The facts of the case are briefly as follows :
The Accused-Appellant was indicted in the High Court of Galle as the 2nd Accused, together the with Ranil Abeysekara committed the 1st Accused for allegedly having on the 12th of July 1986 murder of Manimeldura Small Mendis an offence punishable under section 296 read with section 32 of the Penal Code. During the course of the Trial the 1st Accused died, and the case proceeded against the Accused-"Appellant" without a jury. Out of the 11 Witnesses listed in the Indictment the following 06 were called by the Prosecution.
I) Kaludura Gnanawathie (mother of the deceased)
II) Kaludura Jayaliyas (Uncle of the deceased)
III) Sarath Mendis (brother of the deceased)
IV) Prof. Chandrasiri Niriella(Judicial Medical Officer)
V) IP Chandradasa Welahetti (Police Officer)
VI) IP Camilus Fernando
At the conclusion of the Prosecution case, although the Defence made an application under section 200(1) of the Code of Criminal Procedure Act to acquit the Accused-"Appellant" on the basis that the evidence was unreliable, yet the learned High Court Judge refused the application under section 200 and called for a Defence. The "Appellant" made a statement from the Dock. The Defence also marked the Deposition of Kamal de Silva who was dead at the time of the trial and who had been listed as a Prosecution witness under section 33 of the Evidence Ordinance. The evidence of Kamal de Silva had been marked by the Defence as V9. Consequent to the addresses of both counsel the learned High Court Judge delivered her Judgment on 18.02.2005 convicting the Accused "Appellant" who- was accordingly sentenced to death.
There are no Eye-witnesses to the incident, although there were 04 persons allegedly present in the house namely Ajith, Sunil Mendis, C. Mahattaya and Oranielhamy along with the deceased at the time of the shooting, although none of them were called as witnesses. It was the position of the Police that none of the persons who were present in the house had stated that they saw the Accused "Appellant" shooting the deceased Saman Mendjs. The entire case for the Prosecution therefore rests on Circumstantial Evidence.
The Prosecution led the evidence of 3 lay witnesses namely Gnanawathie, Jayaliyas and Sarath Mendis. Gnanawathie and Sarath Mendis in their evidence claimed that they saw the Accused-"Appellantn and Ranil Abeysekera close to the temple on the night of the incident. The temple was situated some distance away from the house where the deceased was. Jayaliyas who was residing below the house of his mother Oranielhamy who was the grandmother of the deceased Saman Mendis, Gnanawathie the mother of the deceased being the sister of Jayalias. Jayaliyas in his evidence testified that he saw at approximately 1.10 a.m two unidentified persons walking up towards his mother's house consequent to which he waited for about two minutes, after which he testified that he heard 3 Gun-shots being fired in rapid succession. Jayaliyas the star witness in his testimony said that 2 persons came running down the narrow path from his mother's house and the person who flashed a torch said " Ranil fire another." {"Ranil tava ekak thiyapan"} Jayalias did not claim to visually identify the Accused"Appellant", but said that the voice giving instructions to Ranil was identified by him as being that of Rajaliyas.
The deceased Saman 25 years old was an Army deserter with a history of violence, was found shot in the compound of the house of his grandmother Oranielhamy at a place called Dolikanda. The grandmother's house is on top of a hillock about 20-25 yards away from the house of the witness Jayaliyas. The time of the shooting is given as between 10 p.m and 11 p.m by Gnanawathie. 11.10 p.m by Jayaliyas and 12.20 A.M by Sarath Mendis. It was admittedly pitch dark at the time of the shooting, and despite the darkness Jayaliyas identified the Assailants with the aid of the torch light carried by one of the Assailants which resulted in a visual identification of Ranil who held the torch and was walking behind Rajaliyas the "Appellant" whose voice alone was identified by Jayaliyas. Jayaliyas in his testimony said that he never identified Rajaliyas the -Appellant" visually, but that he identified the voice as being that of the "Appellant".
In accordance with the Medical evidence, the deceased died of gun-shot injuries fired from a distance of 8 to 10 yards. Dr. Niriella the Judicial Medical Officer who gave evidence stated that there were 6 entry wounds on the from of the body and 2 entry wounds at the back. The evidence in this case can be categorized into
i) The evidence of Gnanawathie and Sarath who are mother and brother respectively of the deceased.
ii) The evidence of Jayaliyas a brother of Gnanawathie and an uncle of the deceased respectively.
The evidence of Gnanawathie and Sarath who lives at Pattidora nearly 1/2 a mile away from the scene of the shooting relates to an aspect of the case after the shooting. They had seen the 2nd accused when they were on their way to the grandmother of Sarath, namely Orananielhamy's house, consequent to hearing the shots. The Appellant lives in the vicinity of the temple at "Pansalwatta."
The evidence of Gnanawathie
Gnanawathie testified that the deceased Saman Mendis was an Anny deserter, having led a violent life, and had 2 cases against him. In one case it was alleged that he had caused mischief to the house of the Accused-Appellant, which case was settled. In another case the deceased was alleged to have assaulted his uncle Deeson Mendis, which case too was settled. Gnanawathie said that the Accused-"Appellant" has threatened to kill her son the deceased Saman, threatening that he would spend a lakh of Rupees, and have him killed. As the deceased was wanted by the Army, he avoided his village Pattiyadora and was employed on an estate at Batadola, Ambalangoda several miles away from his village. Gnanawathie referring to the date of the incident (12.07.86) testified that the deceased made one of his rare visits to the village having come uninvited to attend the wedding of a relation at about 5 p.m, and thereafter she accompanied the deceased to her house. The deceased subsequently at about 6.30-7.00 p.m left with Kamal Silva a relation, with the deceased having instructed his mother to send the dinner at the wedding house to his grandmother. Oranielhamy's house at Dolikanda as the deceased had not been invited to the Wedding House, which Gnanawathie performed. Around 10 p.m or 11 p.m , three gun shots were heard from the direction of Gnanawathies mother Oranielhmay's house, and on hearing these shots she along with her son Sarath ran in the direction from which the shots were fired, Oranielhamy's house being about 1/2 a Kilometer away from her house. Both Gnanawathie and Sarath took a short cut through the temple land, and while they were on the temple land, Gnanawathie testified that the Accused-"Appellant" and Ranil came towards them. Gnanawathie testified that Ranil was hiding his left hand and he jumped towards a nearby well. However the Accused-"Appellant" walked forward and "went his way". Sarath however in his evidence stated that Ranil had something like a gun- I am not sure. When Gnanawathie came to her mother's house, she saw the deceased fallen in the center of the hall of the house. At that time Kamala de Silva, Sunil Mendis , and Siri Mahattaya alias ' Sisira' were in the house. She later says that her mother Oranielhamy and her son Ajith Mendis too were in the house at that time Gnanawathie went with Siri Mahattaya alias Sisira to the Police Station and made a complaint.
The evidence of Sarath
Sarath is the eldest son of Gnanawathie and was living with her at the time of the incident. When Sarath heard the shots it was 12.20. a.m, whilst he was talking to his mother. Sarah testified that he heard the sound of one shot being fired, and little later 2 shots, all 3 shots coming from the direction of his grandmother's namely Oranielhamy's house, consequent to which he ran to his grandmother Oranielhamy's house, followed by his mother Gnanawathie. Sarath corroborated Gnanawathie's evidence, and testified that when he was passing PansalWatta he met Ranil and the Accused-"Appellant, that Ranil had something like a gun in his hands. Ranil being about 75 feet away. When he, went to his grandmother Oranielhamy's house, his brother Saman was lying fallen in the hall dead. subsequent to which he ran and brought a vehicle to take the deceased Saman to the Galle Hospital.
The evidence of Jayaliyas
I have already referred to some aspects of the evidence of Jayaliyas. Jayaliyas is the brother of Gnanawathie and an uncle of the deceased Saman. He was employed as a Watcher in the education Department, while his mother Oranielhamy lived in a house placed on a hillock approximately 20 to 25 yards away at a higher level, with a foot-path leading to it. Jayaliyas testified that on the day of the incident at approximately 11.10.p.m he having been disturbed by dogs barking went behind his house towards that cattle shed in search of any intruder when he looked up towards his mother's house. He then saw two persons about 10 to 20 yards away going up towards his mother's house, of whom one person had a torch with him, but Jayaliyas could not identify them as they were facing the opposite direction. Witness said that within 2 or 3 minutes he heard 3 shots in quick succession coming from that direction, consequent to which he saw 2 persons running and the person who flashed the torch said "Ranil fire another" (Ranil tawa ekak thiyapan) subsequent to which another shot was fired. Jayaliyas identified the voice as that of the Accused-"Appellant". Jayaliyas elaborated further by stating that the Accused-"Appellant" Rajaliyas is the one who said "Ranil fire another" . Witness said that the 2 persons ran towards the temple. Jayaliyas claimed that he identified the Assailants by the light of the torch, that the "Appellant" carried as it was dark outside. Witness said that it was the "Appellant" who flashed the torch and that Ranil had a gun in his hand. Jayaliyas testified that he then went to his mother Oranielhamy's house, where he saw the deceased fallen by the bed in the hall, and Sunil Mendis was pouring water into the mouth of Saman. At that moment the others present were Ajith, Sunil Mendis, C. Mahattaya and his mother Oranieihamy. Jayaliyas stated that a lorry belonging to Sumanadisi Mudalali was brought and the deceased was taken to the Hospital in it in which Jayaliyas too traveled but did not go into the Hospital. Witness stated that the deceased was pronounced dead on admission, and that he returned home in the same lorry. The witness Jayaliyas admitted that he could not make a statement on the very same day of the incident to the Police.
The prosecution called IP Camillus Fernando who testified that the 1st Complaint in this case was made by Gnanawathie at 1.25 A.M on 13.07.1936. Witness said that he functioned as OIC Ratgama during that period, when he along with some other Police Officers accompanied Gnanawathie to the scene of the offence when they met Sarath Mendis (another son of Gnanawathie) who informed him that the suspect Ranil was in his house at Gammaddegoda. During the journey Sarath identified Ranil who was arrested by the witness. Witness said that they reached the scene of the offence at approximately 2.30.a.m, and gave a description of the house of Oranieihamy. Significantly 3 pellets were found under the bed and a piece of wadding near the door. On the wall of the hail room there were pellet -marks, and on the following day an empty cartridge was found below the paved compound. In her first complaint Gnanawathie suspected Ranil and the"Appellant". However no gun was recovered in this investigation.
The witness was present until 4.00 A.M that night, and a Police Officer was on guard duty throughout, with the witness re-visiting the scene at 7.00 A.M.
The Defence
After the close of the prosecution case, the "Appellant" made a statement from the dock and denied the charge against him. He denied that he committed the offence against him, nor that he was arrested when he was asleep in his house at 4.30, am on the night of the incident. The defence also led the deposition of Kamal de Silva who was listed as a prosecution Witness in the trial, and gave evidence at the Non-Summary inquiry in the Magistrate's court on 26.05.89, but had expired when the trial in the High Court was taken up, and hence his disposition (P9) was accepted under section 33 of the Evidence Ordinance. Kamal de Silva who was a very close friend of the deceased said that after partaking at the wedding he came together with the deceased Saman Mendis to the house of the deceased's grandmother Oranielhamy to have dinner, which had already been arranged to be brought the house of Oranielhamy. Subsequent to the deceased changing his clothes, Ajith Mendis and Sunil Mendis came to the house of Oranielhamy. After dinner the deceased went out, washed his fingers, and again went out. When the deceased Saman Mendis was returning he was shot at , and witness states that about 4 or 5 shots were fired repeatedly at him, after which the deceased staggered back into the house. Kamal de Silva did not see the Assailants who. shot the deceased. The deceased sat on his lap and was bleeding profusely, consequent to which he was carried to the Road and taken in a lorry to the hospital.
The Post Mortem Report of Professor N. Chandrasiri (P1) referred to in the Ante-Mortem-Injuries six puncture marks on the body of the deceased Saman Mendis, the size of each puncture being 9 mm in diameter. The edges of the punctures were driven inwards with the left long being punctured. There was approximately 3 liters of blood in the left side of the chest cavity. Bleeding had occurred in the posterior wall of the belly. The right and left lobes of the liver and the Spleen were perforated. Dr. Chandrasiri states in (P1) that these are the effects of penetration caused by entry wounds from the discharge of a shot gun.
Post - Mortem Injuries
A flattened SG type of pellet was under the skin on the right side and upper part of the front wall of the abdomen, 2 lacerated Wounds of the skin were on the right side of the front of the belly over it's Upper and lower parts, 2 Puncture marks were present on the back of the trunk. The cause of death was severe internal bleeding due to laceration of the spleen and lung following Penetrating effects of the pellets caused by a shot gun. The deceased was dead on Admission to the hospital. The Inquest conducted by Mr. Baron Mendis, Acting Magistrate Galle, is in compliance with the Post- Mortem report of Professor N. Chandrasiri, and states that "the gun has been fired at a distance of about 8 yards from the victim". It further states that "2 pellets of the SG type discovered from inside the body were handed over to RPC Wilson of the Ratgama Police.
Eviednce indicative of the Motive
The Position of the Prosecution is that the grave motive entertained by the Accused -Appellant to cause the death of the deceased is amply demonstrated by the evidence of Kaludura Gnanawathie, the mother of the deceased, who testified that the deceased (Saman) was unwilling to marry the sister of the Accused-Appellant Rajaliyas. The Prosecution averred that before the incident they had associated closely with the Accused-Appellant, but that the deceased ( Saman) had eloped with another girl. As a result of these ill feelings between the deceased and the Accused-Appellant when the deceased had asked for a photograph of himself from the son of the Accused-"Appellant" which the latter had taken, the latter namely the Accused-"Appellant's" son had said that the Accused-"Appellant" had burnt it. Consequently the deceased had smashed the house of the Accused-"Appellant". The witness Gnanawathie had referred to this incident in her evidence ( P 56 of the brief ). Incidentally Ranil's elder brother is married to the Accused-Appellant's daughter ( P. 56 of the Brief)
Gnanawathie in her evidence stated that on hearing 3 consecutive shots from the side of the grand mother's house, she awoke her son Sarath Mendis, and they both proceeded towards Dolikanda the time being approximately 10-11 p.m Gnanawathie and Sarath had a torch each in their hands and Sarath Mendis went ahead of Gnanawathie, whilst on the way she heard another 2 shots. Whilst walking towards Doli Kanda she identified the 1st and 2nd Accused from the lights of the temple. Gnanawathie testified that on seeing her, the 1st Accused was hiding his hands as if to cover something, and he jumped towards the well. The 2nd Accused did not have anything in his hands.
Evidence of Sarath Mendis
Witness said that he heard the gun shots at exactly 12.20 A.M, from the side of the Mahagedera, and subsequently ran towards Dolikanda well ahead of his mother. From the lights of the temple witness saw both accused coming from the direction of DoliKanda. According to the Prosecution Jayaliyas identified both the Accused by voice and by sight. Jayaliyas in his evidence stated that he had not made a statement to the police at that time, as he had to report to work to the Education Department the next morning where he worked as a watcher. Jayaliyas testified that when he returned home from work, the Coroner's Inquest was in progress, and consequent to the Corner Mr. Baron Mendis having signaled to him with his eyes that it was late, and also considering the fact that he had not made a statement to the police, Jayaliyas upon receiving a 'chit' from the police, had made a statement to the police at 7 a.m the following morning. According to the prosecution version, the entirety of the Prosecution case is based on the evidence of (1) Gnanawathie (2) Sarath Mendis and (3) Jayaliyas.
The Prosecution contends that the case against the Accused-Appellant has been proved beyond reasonable doubt.
On an examination of the entirety of the evidence led in the case, the documents produced at the trial, and the written and oral submissions tendered at the Appeal. I conclude as follows.
(1) There are no eye witnesses to the incident, and the entire case for the Prosecution hence rest on Circumstantial Evidence. The Circumstantial evidence relied on by the Prosecution are those of the 3 lay witnesses namely (1) Gnanawathie, (2) Jayaliyas and (3) Sarath Mendis. Of these 3 witnesses Gnanawathie and Sarath Mendis claimed that they saw Ranil Abeysekera and the Accused-"Appellant" close to the temple on the night of the incident, the temple being situated some distance away from the house of the deceased. Jayaliyas who was residing below the house of the Grandmother of the deceased Oranielhamy claimed that he saw 2 persons walking towards the house of the deceased's Grandmother, but could not identify them as they were facing the opposite direction and as it was dark. Jayaliyas in his evidence said that after the first 3 shots were fired, the 2 persons came running down the footpath, and whilst he saw Ranil possessing a gun in his hand, the other person held a torch in his hand and said "Ranil tawa ekak thiyapan." At one point in his evidence Jayaliyas said that he reorganized the other person by his Voice, which the identified as that of Jayaliyas the Accused-"Appellant". However at another point in his evidence, Jayliyas said that he recognized Rajaliyas the Accused-"Appellant" due to the torch light.
(2) the Voice Identification of the "Appellant" by Jayaliyas is subject to several infirmities, one of which is the inherent contradictory nature of the evidence itself. The evidence of Jayaliyas is also contradictory and vague relating to the identity of Rajaliyas ("Appellant") and Ranil. For instance at page 165 of the Brief, Jayaliyas was asked by learned State Counsel as follows.
Q: Did you identify them?
A: I identified
Q: How did you identify in the dark?
A: the torch was flashed by the man who came behind. Because of that the person coming in front can be identified.
Q: Who flashed the torch?
A: Rajaliyas (Appellant) Ranil came behind
Q: Did you see anything in Ranil's hand.
A: 1 saw a gun in his hand.
If it is true that Jayaliyas identified the man in front with the aid of the torchlight flashed by the man who came from behind, and if as he says it was Rajaliyas the "Appellant" who flashed the torch, (Page 165 of the Brief) then Rajaliyas should have been behind and Ranil should have been front of Rajaliyas. The witness Jayaliyas however in the continued narration of evidence stated Ranil was behind Rajaliyas the "Appellant". Hence the evidence of Jayaliyas with regard to the identity the Appellant Rajaliyas is contradictory and thus cannot be depended upon. The evidence of Jayaliyas that the "Appellant" said "Ranil tava ekak thiyapan" while Ranil and the "Appellant" were running down the hill after first firing 3 shots in rapid succession introduces an artificial element to his evidence in that firing a shot at that stage would not have served any purpose. The need to perform such a meaningless and rash act is not borne out by the evidence. Such an act if assumingly done would have been senseless, for by this time the deceased could not have been at the same spot nor in any case in a standing position as already three shots had been fired in rapid succession, and the Assailants were running away from the compound.
(3) The subsequent conduct of Jayaliyas is inconsistent with that of a person who had actually witnessed the shooting and identified the Assailants.
(i) The failure to make a Spontaneous Disclosure.
In considering the Conduct of Jayalias consequent to his identification of the 2 Assailants, what has to be considered is whether his conduct satisfies the test of Spontaneity or the Test of Probability and Improbability which are the normal yardsticks for evaluating evidence. After hearing the gun fire and identifying the Assailants he went up to the house of his mother Oranielhamy to see what had happened. When he went inside the house he discovered that his own nephew Saman Mendis was lying with gun shot injuries on the floor near the bed of his mother. Within a minute two of the shooting Ajith the younger brother of Saman shouted "Saman Aiya has been shot," Ajith being unaware of the identity of the Assailants. At this instant who shot Saman would naturally have been the question which everyone was pondering about the persons present in the house at that time being ( a) Sunil Mendis, (b) Ajith Mendis, (c) Mahattaya (d) the mother of Jayaliyas namely Oranielhamy, (e) Kamal de Silva a close friend of the deceased, who had all been present in the house at the time of the shooting, but did not see the shooting. Jayaliyas according to his own testimony was the only person who had seen the actual shooting and consequently had identified the Assailants, when they were running away.
4) Jayaliyas does not give any reasons to why he did not disclose the fact that he identified the 2 Assailants, when the situation demanded it. When his own wailing mother Oranielhamy asked him after he returned from Hospital, "Budu Puthe kawda me aparadaya kale?" He did not respond. When questioned about it in Court his irresponsible answer was "Kawda ithin uttara denna inne ("Who is there to answer")
At intriguing situation is that if Jayaliyas knew who fired the shots why he did not answer own mother. Jayaliyas met his own anguished sister Gnanawathie (mother of the deceased Samar the same night after he returned from the Hospital and also the following day when he returned from work, but he did not tell any body of that he claims he saw that night. Gnanawathje who was not eye witness to the incident had only told the police that she suspected the 2 Accused. However her own brother Jayaliyas who claims to be an Eye Witness did not even tell her that he saw the shooting. and that the persons responsible were Ranil and Rajaliyas.
Jayaliyas in my view was not a credible Witness due to his insufficient evidence which was contradictory in nature, his failure to make a spontaneous disclosure even to his mother, Oranialhamy, his sister Gnanawathie (the mother of the deceased Saman), and even his immediate behavior after going to his mother's house after the incident, where Kornai de Silva in Cross-Examination which was unchallenged said
Q: "Jayaliyas asked me who shot the deceased? "
A: "I told him I do not know".
It is strange that if Jayaliyas saw the shooting that he should ask Kamal de Silva who shot the deceased. Hence for the aforesaid reasons the evidence of Jayaliyas should be subject to the Test of Probability and Improbability, which are the normal yardsticks for evaluating evidence. Hence for the aforesaid reasons Jayaliyas has failed to make a Spontaneous Disclosure, and the behaviour of Jayaliyas falls short of the test of Spontaneity.
The failure by Jayaliyas to inform the police that night and the whole of the following day.
The question arises as to why Jayaliyas did not make a prompt, voluntary statement to the police that night or the following day disclosing the fact that he saw the shooting and identified the assailants. Initially Jayaliyas makes it out that he did not meet any Police Officer that night, and hence that he did not have an opportunity to make a complaint. The incident occurred on 12.07.1986 at about 11 p.m whereas although Jayaliyas had ample opportunity to do so, he did not make a statement to the Police until 14.07.1986 which is by any standards a belated Statement. Section 21 of the Criminal procedure Code makes it Mandatory that every person aware of the Commission by another person of certain specified offences (including section 296) to forthwith report the same to the nearest Magistrate's Court or to the Officer-in-Charge of the nearest Police Station or to a Peace Officer or to a Grama Sevaka Niladhari of the nearest village. Although Jayaliyas claims that the Police gave him a 'chit' to come to the Police Station, the Police deny that he was given a 'chit'. Jayaliyas did not mark in evidence any `Chit' or photocopy of such 'chit', which leads me to conclude that no 'chit' was issued by the Police. There was a legal obligation on the part of Jayaliyas to act in conformity with Section 21 which he failed to fulfill in my opinion. In this context the Court is evaluating the evidence of Jayaliyas and not his legal obligations, and has to come to a finding on a question of fact when he claims that he saw the Assailants that night. The question here is whether his failure to make a prompt disclosure in the circumstances is consistent with normal human behavior in such circumstances. The question here is whether any ordinary person in the position of Jayaliyas (nephew killed in his own mother's premises next door) would have immediately disclosed this fact to his mother or to any of his intimate relations and friends who would obviously have been openly speculating as to who did this killing? The Answer quite clearly is "Yes". The Tests of Probabilistiy and Improbability and the Test of Spontaneity are applicable Jayaliyas recognized Rajaliyas the Accused-"Appellant" by his voice. In E.R.S.R. Coomaraswamy's Law of Evidence Volume I, page 257 it is said, "Some Witnesses purport to identify a person by his voice. It is not safe to rely on such Identification and the liability to error is great. This is Particularly so when the identification was at night." Thus in a case of Voice Identification there must be material to establish that the witness was quite familiar with the Voice of the "Appellant" and that in the situation of the witness he had ample opportunity to make a Correct Identification by his voice. No such evidence has been led in this case.
The learned High Court Judge has failed to this aspect of the case and what is more misdirected herself on the premise that the evidence related to a Visual Identification of the "Appellant". This is a serious misdirection which vitiates the conviction in this case.
Misdirected herself in applying the Ellenborough Principle to the facts of this case.
The "Appellant" made a statement from the dock and denied the charge. His position was that on that day he returned from work at 830 p.m and thereafter he had his dinner and slept. The Police came at about 4.30 a.m, woke him and took him to the police Station. The defence of the "Appellant" was therefore an Alibi. In other words, his position was that he had nothing to do with this murder and that he was elsewhere at the time of the alleged Murder. This was his entitlement. Having summarized his Dock Statement the learned High Court Judge suited at page 327.
"Although an Accused is not bound to state anything at this stage, when such strong Evidence had been led, and an allegation made that he is connected to this Murder an explanation from the Accused is called for. We know about it from decided cases."
Under the circumstances the aforesaid passage in the Judgment is a clear misdirection. What else can an accused say except his version with regard to the allegation? If the position of the "Appellant" was that he did not take part in the shooting, what other explanation can he give to suit the 'strong evidence' of the Prosecution ? It would appear that the learned High Court Judge has failed to consider the Dock statement of the "Appellant" and had wrongly gone on the footing that the Accused - "Appellant" has failed to give evidence in the case. A dock statement constitutes Evidence in the case. (Queen vs Kularatne 71 NLR 529 at P 551), and the learned High Court Judge should have considered his Dock Statement before she accepted the Prosecution Evidence more particularly that of Jayaliyas.
In my view the evidence led by the Prosecution cannot by any means be described as 'Strong'. The only material witness was Jayaliyas, and the absolute unreliability of his evidence has already been pointed out as mentioned before.
(1) In Raymond Turnbull and others case (1976 (3) AER p. 549) it was held that "Even if the witness is purporting to recognize someone he knows the Jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. When the quality of the identification evidence is poor, that is, a fleeting glance or a longer observation made in difficult condition the Judge should then withdraw the case from the Jury and direct an acquittal, unless there is other reliable evidence which goes to support the correctness of the identification."
In this case the witness Jayaliyas had only a brief glance towards the Accused-"Appellant" at night when it was dark, and in any case his evidence is contradictory on many matters. There is no other reliable evidence pertaining to the identification of the Accused-"Appellant" proposed by the prosecution.
2) In Sumanasena Vs Attorney - General ( 99 (3) SLR p. 137) {Belatedness of Witness} Just because a witness is a belated witness, the Court ought not to reject his testimony on that score alone. The Court must inquire into the reason for the delay, and if the reason for the delay is justifiable and plausible, the Court must act on the evidence of a belated witness.
In this case the delay displayed by Jayaliyas in making a belated statement to the police implicating the Appellant' is not explained, and therefore the delay is neither justifiable nor plausible, and it is not safe to act on such uncorroborated evidence of well s witness.
3) His Lordship Justice F.N.D.jayasurjya in Wickremasinghe Vs Dedoleena and others ( 1996(2) SLR 956) held that Tests of probability and improbability, Test of Consistency and Inconsistency, and Tests of Interested and Disinterested are employed to measure the Testimonial Trustworthiness and credibility of witness, His Lordship Justice Jayasuriya held that:- "A Judge in applying the of Probability and improbability relies heavily on his knowledge of men and matters, and the patterns of conduct observed by human beings, both ingenious as well as those who are less talented and fortune."
In this case the learned Trial Jude has failed to employ the above Tests correctly in evaluating the evidence of Jayaliyas, on whose unsatisfactory and uncorroborated evidence, it is not safe to sustain a conviction for murder.
Under these circumstances it is unsafe to convict the "Appellant" on the basis of the absolutely unsatisfactory evidence of Jayaliyas and this Court sets aside the conviction and sentence imposed on the "Appellant".
For the aforementioned reasons, I permit the Appeal of the "Appellant", set aside the conviction and sentence imposed on the "Appellant" by the Learned Trial Judge and acquit him. The charge against the Accused-"Appellant" in my view has not been proved beyond reasonable doubt, for the reasons mentioned in this Order.
SARATH DE ABREW,J. - I agree.
Appeal allowed.
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