The Court of Appeal recently revisited and analyzed the legal principles governing dying declarations in a case involving a murder conviction based on two such statements. In delivering its decision, the Court reviewed several past judgments that emphasized the caution required when relying on a deceased person's untested statements, while confirming the circumstances under which …
CA Examines Principles on Dying Declarations
The Court of Appeal recently revisited and analyzed the legal principles governing dying declarations in a case involving a murder conviction based on two such statements. In delivering its decision, the Court reviewed several past judgments that emphasized the caution required when relying on a deceased person’s untested statements, while confirming the circumstances under which such declarations may be accepted beyond reasonable doubt.
In this matter, the accused was convicted by the High Court of Chilaw for the murder of a man who had sustained multiple severe cut injuries. At trial, the prosecution relied on two separate dying declarations made by the deceased—one to a bystander immediately after the incident, and another to a police officer at the hospital. Both witnesses confirmed the victim named the accused as the assailant. Medical evidence also confirmed the deceased was in a rational and conscious state at the time. Upon arrest, the accused was found in possession of a blood-stained manna knife. The Court held that the dying declarations were credible and consistent with other corroborative evidence.
“…It is pertinent to reproduce the sentiments expressed by His Lordship H.N.G. Fernando J in Queen v. Anthony Pillai 68 CLW 57 with regards to how the Court could act on such dying declarations. “The failure on the part of the Learned Trial Judge to caution the jury as to the risk of acting upon a dying declaration, being the statement of a person who is not a witness at the trial, and as to the need to consider with special care the question whether the statement could be accepted as true and accurate had resulted in a miscarriage of justice.” This dictum was considered by Hos Lordship Sisira de Abrew J in Gamini Mahaarachchi vs. The Attorney General, CA 106/2002, Decided On 22.08.2007, held that: “When a dying declaration is sought to be produced as an item of evidence against an accused person in a criminal trial. the Trial Judge or the jury as a case may be, must bear in mind on the following weakness; 1. Statement of the deceased person was not made under oath. 2. Statement of the deceased person has not been tested by cross-examination vide King vs. Asirivadan Nadar 51 NLR 322 and Justin Pala vs. Queen 66 NLR 409/ 3. That the person who made the dying declaration is not a witness at the trial. As there are inherent weaknesses in a dying declaration which I have stated above, the trial Judge or the jury as a case may be, must be satisfied beyond reasonable doubt on the following matters; a. Whether the deceased in fact made such a statement b. Whether the statement made by the deceased was true and accurate c. Whether the statement made by the deceased person could be accepted beyond reasonable doubt. d. Whether the evidence of the witness who testifies about the dying declaration can be accepted beyond reasonable doubt. e. Whether the witness is telling the truth. f. Whether the deceased was able to speak at the time the alleged declaration was made. g. Whether the deceased was able to identify the assailant.” (Similar legal principles related to dying declarations were considered by His Lordship Sisira De Abrew in Ranasinghe v Attorney-General [2007], 1 S.L.R 218) This was followed by His Lordship Achala Wengappuli J in Korinvige Anura Lakshman Silva alias Pechchei alias Chooti vs. The Attorney General, CA No. 288/2013 decided on 04.05.2018 and held that: “It is the contention of the accused-appellant that the dying deposition on which he was convicted fails to satisfy these stringent tests, in view of the inconsistencies referred to above and therefore the prosecution has failed to prove its case against him.” – Justice Sasi Mahendran
Dock Statement and Inference of Guilt
The accused chose not to testify under oath but instead made an unsworn dock statement, denying the charges. The Court noted the lack of explanation from the accused regarding the strong incriminating evidence, and referred to the well-established principle laid down in R v. Lord Cochrane (1814) (Gurney’s Reports 479), often cited as the Ellenborough dictum. The Court confirmed its applicability in Sri Lanka and cited the following local authorities:
- Sumanasena v. Attorney General (1999) 3 SLR 137 – H.L. Jayasuriya, J.
- Baddewithana v. Attorney General (1990) 1 SLR 275 – P.R.P. Perera, J.
- Aruna alias Podi Raja v. Attorney General (2011) 2 SLR 44 – Sisira De Abrew, J.
These judgments uphold the principle that, where the prosecution presents strong and prima facie incriminating evidence, the accused’s failure to provide an adequate explanation can justifiably lead to an adverse inference under section 114(f) of the Evidence Ordinance.
Case No: CA/HCC/108/2023 [Decided on 30.04.2025]
Before: Before : B. Sasi Mahendran, and J. Amal Ranaraja, J
