dying declaration - recovery of article under section 27

 

786  Headnote:

Jagath Premalal Senanayake v. Attorney General 

Court of Appeal of the Democratic Socialist Republic of Sri Lanka 

CA/HCC/0166/2016 

Decided on: 13th September 2024 

Court: Court of Appeal 

Judges: Sampath B. Abayakoon, J.; P. Kumararatnam, J.

 

Facts: 

Jagath Premalal Senanayake, the accused-appellant, was indicted for the murder of two individuals, Madarasinhage Chandrawathi and Madarasinhage Padmawathi, on or about August 22, 2008, an offense punishable under Section 296 of the Penal Code. After a jury trial, the High Court convicted him of murder and sentenced him to death. The appellant challenged the conviction and sentence, raising multiple grounds of appeal, including procedural irregularities, errors in jury direction, and misapplication of law regarding the evidence.

 

Held: 

The Court of Appeal dismissed the appeal, affirming that the prosecution had proved the case beyond reasonable doubt. The Court found no merit in the appellant's grounds of appeal and upheld the High Court’s conviction and sentence.

 

 

 

Background of the Case: 

On the day of the incident, at around 9:30 AM, witnesses (PW1 and PW2) working outside the house of the deceased heard cries of "menna maranawa" (I am being killed). When they rushed to the scene, they found Padmawathi lying on the ground, fatally injured, and saw the appellant holding a crowbar. As they approached, Padmawathi uttered, “Aru Jagath, Jagath” (It’s Jagath). PW1 immediately informed the police. The appellant, in his dock statement, denied the charges, claiming that he discovered the bodies of the victims after returning home.

The appellant was convicted based on the eyewitness testimony, the dying declaration of the victim, and the recovery of a weapon used to commit the offence under Section 27(1) of the Evidence Ordinance.

Legal Issues: 

1. Whether the appellant’s right to a fair trial under Article 13(3) of the Sri Lankan Constitution was violated due to procedural errors during the trial.

2. Whether the trial judge erred in directing the jury regarding the standard of proof and the evidentiary value of the appellant’s dock statement.

3. Whether the trial judge properly directed the jury on the legal concept of a dying declaration.

4. Whether the recovery of the crowbar under Section 27(1) of the Evidence Ordinance was correctly utilized in the trial.

5. Whether the jury’s verdict was against the evidence presented at the trial.

Arguments:

Appellant’s Arguments: 

1. Fair Trial Violation: The appellant claimed that the High Court Registrar announced the jury’s verdict before the foreman had a chance to do so, violating Section 234 of the Code of Criminal Procedure and Article 13(3) of the Constitution, which guarantees the right to a fair trial. The appellant further argued that his application to call the magistrate who conducted the inquest was improperly denied.

2. Errors in Jury Direction: The appellant argued that the trial judge misdirected the jury regarding the standard of proof, particularly the meaning of "beyond a reasonable doubt." He also contended that the judge failed to adequately explain the evidentiary value of his dock statement.

3. Dying Declaration: The appellant argued that the trial judge failed to properly direct the jury on the legal value of the dying declaration made by the deceased.

4. Improper Use of Recovery Evidence: The appellant challenged the recovery of the murder weapon under Section 27(1), alleging that the recovery evidence contained infirmities and doubtful circumstances.

5. Jury’s Verdict: The appellant contended that the jury’s guilty verdict was against the weight of the evidence.

 

Respondent’s Arguments (Attorney General): 

1. Fair Trial Safeguards: The respondent argued that the jury verdict was properly recorded and that any minor procedural irregularities did not result in a miscarriage of justice or violate the appellant’s right to a fair trial.

2. Standard of Proof: The respondent maintained that the trial judge properly explained the legal standard of proof and that the jury was adequately instructed on the presumption of innocence and reasonable doubt.

3. Dying Declaration: The prosecution contended that the dying declaration was correctly admitted as evidence, as it fulfilled the requirements under Section 32(1) of the Evidence Ordinance. The trial judge provided appropriate guidance to the jury regarding its legal weight.

4. Recovery Evidence: The respondent argued that the recovery of the crowbar under Section 27(1) was lawfully conducted and corroborated the testimony of the medical officers regarding the nature of the injuries.

5. Jury Verdict: The prosecution contended that the evidence presented, including the dying declaration, eyewitness testimony, and forensic evidence, overwhelmingly supported the guilty verdict.

Precedents Discussed:

1. R v. Martin [31 NLR 124]: The Court referenced this case to address the procedural irregularity involving the jury verdict. The Court found that any error was immediately corrected, and no prejudice was caused to the appellant.

  

2. Woolmington v. DPP [1935] AC 462: The case established the "golden thread" of criminal law, affirming that the prosecution must prove guilt beyond a reasonable doubt. The Court concluded that the trial judge’s explanation of reasonable doubt was clear and appropriate.

 

3. Queen v. Buddharakkitha Thero [63 NLR 433] and Queen v. Kularatne [71 NLR 529]: These cases were cited regarding the evidentiary value of a dock statement, which must be treated as evidence, though unsworn, and evaluated for its potential to create reasonable doubt.

 

4. Dharmawansa Silva and Another v. The Republic of Sri Lanka [1981] 2 Sri L.R. 439: The Court reaffirmed that a dying declaration is not inferior evidence and can form the basis of a conviction, provided it is reliable and authenticated.

 

5. Somaratne Rajapakse v. Attorney General [2010] 2 Sri L.R. 113: The Court reiterated the legal requirements for recovery under Section 27(1), emphasizing that there must be a clear nexus between the accused’s information and the fact discovered.

Conclusion: 

The Court of Appeal dismissed the appeal, affirming the conviction and sentence of the appellant. The Court found that the trial judge had properly directed the jury on the legal principles, including reasonable doubt, the value of the dock statement, and the admissibility of the dying declaration. The recovery of the crowbar was lawfully conducted, and the jury's verdict was based on sufficient evidence. Consequently, the Court upheld the appellant’s death sentence, concluding that no miscarriage of justice occurred during the trial.