MURDER- CONFLICT OF INTEREST-CIRCUMSTANTIAL EVIDENCE-CAN POSSESSION OF STOLEN PROPERTY LEAD TO PROOF OF MURDER-IDENTIFICATION OF THE ACCUSED
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A W Abdus Salam, J
The
Appellants (1st to 5th accused) along with the
6th accused stood indicted by the Attorney General on the
following counts.
1. Conspiracy
to murder Nimal Samarasingha punishable under section 300 read with sections
113 (b) and 102 of the Penal Code.
2. Being
members of an unlawful assembly to murder of Deepthi Champa Samarasingha, an
offence punishable under section 140 of the Penal Code.
3. Being
members of unlawful assembly committed the murder of Deepthi Champa
Samarasingha, an offence punishable under section 296 read with section 146.
4. Being
a member of the said unlawful assembly attempted to murder Nimal Samarasingha
an offence punishable under section 300 read with section 146.
5. Being
several members of the said unlawful assembly committed the offence of robbery
an offence punishable under section 380 read with section 146.
6. Being
members of the said unlawful assembly to commit the offence of robbery entered
the house of ….an offence punishable under section 443 read with section 146.
7. Being
members of the unlawful assembly to commit the offence of attempted murder of
…. an offence punishable under section 445 read with section 146.
8. Committed
the murder of Deepthi Champa Samarasingha an offence punishable under
section 296 of read with section 32.
9. Caused
injury to Nimal Perera Samarasingha with such intention or knowledge and under
such circumstances that if he by that act caused death he would be guilty of
murder, an offence punishable under section 300 read with section 32.
10. Committed
the offence of robbery of cash amounting to Rs 70,000/- and thereby committed
the offence of robbery punishable under section 380 read with section 32.
11. To
commit the offence of robbery entered the house of Nimal Perera Samarasingha an
offence punishable under section 443 read with section 32.
12. To
commit the offence of attempted murder of Nimal Perera Samarasingha entered the
house of .. an offence punishable under section 445 read with section 146.
13. At
the time of committing robbery the 3rd accused used a pistol
and thereby committed an offence punishable under section 383.
14. At
the time of committing robbery the 4th accused used a pistol
and thereby committed an offence punishable under section 383.
15. At
the time of committing robbery the 5th accused used a knife and thereby
committed an offence punishable under section 383.
After a non-jury trial, the
1st to 5th accused were found guilty and
convicted of all the charges while the 6th accused was
acquitted for want of evidence.
This concerns the several
appeals preferred by the 1st to 5th accused
against their conviction and sentence.
Dr Ranjith Fernando took up
a preliminary issue, at the hearing of this appeal on the ground that the
learned trial judge started the trial ceased to hear the case midway and on the
request of the appellants the incoming judge ordered a fresh trial without
giving the jury option and cited the judgment in Wijesena Silva Vs Attorney
General 1998 3 Sri Lanka Law Report page 309 and Queen Vs Don Hemapala
64 NLR 1 in support
of his argument as to the implementation of section 190 (5) (e) (e) of
the Code of Criminal Procedure. The preliminary issue thus raised was ruled out
by my brother W L Ranjith Silva J with whom I respectfully concurred. For
purposes of convenience the relevant portion of the ruling of Ranjith Silva, J
dated 01.04.2010 is reproduced below….
“We are mindful of the
judgment No SC appeal 24/08 along with appeals No 25/2008 and 79A/2007 (Hon
Attorney General Vs Goniyamalige Kamal worth Viraj Aponso) . The Judgement of
His Lordship Justice Asoka de Silva ( as he was then) wherein his
Lordship held that not giving the jury option is not a mere irregularity but is
an illegality that vitiates all proceedings. It was brought to the notice
of this court by the learned deputy solicitor general that section 48 of the
Judicature Act, does not speak about a trial de novo. I hold that the
dicta in the two cases above are referred to namely Wijesena Silva and Attorney
General, Queen vs Aluthge Don Hemapala Silva (supra) are not applicable
to section 48, even before it was amended it talks about, the
re-summoning of witnesses and having a trial
afresh. It presupposes that the re-summoning of the witnesses is the first step
and the word afresh stated in proviso to section 48 would not tantamount to a
de novo trial in the proper sense. This is further consolidated by the proviso
to section 48. The proviso to section 48, as it stands amended, states that on
the application of the accused in a prosecution, the judge shall re-summon the
witnesses and re-hear the case. The proviso does not contemplate of a trial de
novo proper” Per Rnjith Silva J.
Background of the case
Nimal and Deepthi were
married and along with their infant daughter lived at their house bearing No
172, Sri Vajiragnana Mawatha Maharagama. The 1st accused
(Anuruddha) is a brother of Nimal. who lived with his wife in the same premises.
Buweneka Karunaratna and his wife who are the maternal uncle and aunt
respectively of both brothers also resided under the same roof. The
deceased Deepthi Champa Samarasingha was a dentist by profession, a mother
of an infant girl and was carrying a foetus of 5 ½ months gestation. Nimal
Perera Samarasingha (virtual complainant and witness No 1 on the list of
witnesses for the prosecution) is her husband.
Case against the 2nd
accused-appellant
For purpose of convenience,
I propose to begin with the appeal of the 2nd accused. He was
arrested 18 days after the incident. While he was in police custody and
consequent upon his information, certain items of jewellery were recovered from
the refrigerator in his house.
Although the 2nd accused
denied the recovery of the articles, the learned High Court Judge (HCJ)
rejected the dock statement of the 2nd accused which formed
part of the evidence in the case
and convicted him for
murder, attempted murder, robbery, housebreaking, conspiracy and for being a
member of an unlawful assembly and sentenced him accordingly. The
circumstantial evidence as referred to by the leaned HCJ against him was his
acquaintance with the 1st accused and possession of stolen
property.
It is common ground that
the 2nd accused was known to the virtual complainant and that
he did not participate in the commission of the offence. The learned HCJ
has failed to address his mind to the evidence relating to the 1st accused
not being seen at or around the place during the commission of the offence,
before he extended the application of the presumption to murder, attempted
murder, robbery etc. It appears that the learned HCJ has failed to appreciate
that illustration A to section 114 of the Evidence
Ordinance leaves to his discretion to presume a fact or call
for confirmatory evidence of it as the circumstances of the case may require.
One of the purposes of the inference is that if no fact would thus be
ascertained by the inference in a court of law, very few offenders could be
brought to punishment. A tremendous body of case law deals with this
presumption that stands for the position that if an accused has exclusive possession
of the property shortly after a crime is perpetrated and there are other
circumstances such as the absence of explanation of his possession, a negative
inference may be drawn. That inference is that the accused knew that the
property he or she possessed was stolen.
However it is not right on
the part of the trial court to convict a possessor of such property on the sole
ground of recovery of it from him. Though the court can draw a presumption
under Section 114 of the Evidence Ordinance, simply on the recovery of stolen
articles, no inference can be drawn that a person in possession of the stolen
articles is guilty of the offence of murder and robbery. The culpability of the
offence will depend on other circumstantial evidence, if any.
Further the presumption
permitted to be drawn under Section 114 must be read along with the time
factor. If the articles recovered are found in possession of a person soon
after the murder, a presumption of guilt may be rightly permitted. On the other
hand a presumption cannot be permitted after a considerable interval. On this
aspect of the matter one has to be also mindful of the distance between the
place where the offence in respect of the articles was committed and the place
where they were later found.
It is settled law that the
presumption concerned, is not confined to charges of theft alone, but extends
to every offence including murder. This principle has been clearly illustrated
in Rex Vs William Perera & Etin 45 NLR 433, where it was held that
possession by a person of property recently stolen from a house in the course
of housebreaking and theft gives rise to the presumption that the possessor was
either concerned in the housebreaking or possessed them with the knowledge of
them being stolen.
It was held in Sanwat Khan Vs State of Rajastan 1956 AIR sc 54 and
1956 Cr.L.J 150 that the presumption cannot be drawn in the absence of any
other evidence connecting the accused in the commission of murder even though
the possession is recent and unaccounted for.
A long line of authorities
both in Sri Lanka and India favour the extension of the application of the
presumption to offences other than retention of stolen property, only after
exercise of great care, particularly when direct evidence clearly exonerates
the possessor of stolen articles, from having participated in the commission of
the principal offence.
In the case of Cassim Vs Udayar, 44 NLR
519, the maxim relating to this presumption, was
enunciated by Wijeyewardene J in his own lucid style in a case
where the lower court convicted the accused for housebreaking by
night, theft and retention of stolen property. The case for the prosecution
there was devoid of participatory evidence in the commission of housebreaking
and theft by the accused. Some of the goods burgled in Mannar were discovered
at Anuradhapura in the possession of the accused eight days after the
commission of the offence. The Magistrate convicted the accused for house
breaking by night and theft. Setting aside the conviction for
housebreaking and theft Wijewardena, J stated that the accused is a hawker of
goods and there is no evidence whatever to show that he was seen near the
burgled house or even in Mannar at or about the time of the burglary. His
Lordship considered it as being unsafe in the circumstances of the case to base
a conviction for housebreaking and theft on the isolated fact of retention of
stolen property, eight days later.
The case of the 2nd accused
in the instant matter is much stronger than the facts in Cassim Vs Udayar.
In the instant matter, the articles that were robbed at Maharagama were
recovered at Dehiwala 18 days after the robbery. Besides, no exclusive
possession on the part of the 2nd accused has been proved by
the prosecution. Admittedly, it has been recovered from inside a refrigerator
placed in the kitchen of the house of the 2nd accused. It has
not been kept under lock and key. Everyone in the household had free and
unrestricted access to the refrigerator. As has been explained by the 2nd accused
in the dock statement his two children had liberal access to it.
As such, I am of the
opinion that the learned High Court Judge had erred in law, when he convicted
the 2nd accused of the charges preferred in the indictment. It
is my considered view that the evidence against the 2nd accused which
I took the precaution to examine carefully and anxiously, does not prove with
that certainty which is necessary in order to justify a verdict of
guilty for any of the charges in the indictment or for a lesser count and
therefore the 2nd accused is entitled to be acquitted on all
the charges.
The 3rd accused was
sentenced to death and rigorous imprisonment ranging up to 15 years. The
evidence against the 3rd accused was his identification at a parade and joint
representation by Counsel. The 3rd accused is said to have worn a face mask
during the commission of the offences and the virtual complainant claims to
have identified him when he had occasionally removed/lifted the mask. In any
event his identification alone by a single witness unaccompanied by other
evidence does not warrant a conviction on the charges. For these
reasons, I am satisfied that the verdict against the 3rd accused was
unreasonable and against the weight of the evidence, and that he too is
entitled to be acquitted. Hence, I feel constrained to think that the
convictions of the 3rd accused and sentence passed on him should be set aside.
As far as the 5th accused
is concerned, the evidence against him is almost the same as in the case of the
3rd accused. As such I feel that in order to meet out justice
and to give meaningful effect to the presumption of innocence, the 5th accused
also should be acquitted of all the charges.
The case against the 4th accused
mainly depended on the evidence relating to the identification parade, dock
identification and section 27 discovery of the firearms and an opinion
expressed by a ballistic expert regarding the use of the firearms in the
commission of the offences. The conviction of the 5th accused
was based on mere identification, at a parade followed by dock identification.
The Counsel for the 4th accused contended that the evidence
adduced against their clients is hardly sufficient to bring home a conviction
while the State argued the contrary.
There is no gainsaying that
the case against the 1st accused depended solely on
circumstantial evidence. The President’s Counsel strenuously argued that the
alleged circumstantial evidence adduced against the 1st accused,
did not warrant his conviction. He contended that each and every incriminating
circumstance was not firmly established and the circumstances did not
collectively lead to an irresistible conclusion that the 1st accused
is guilty. The learned Deputy Solicitor General (DSG) met this argument with
admirable opposition and I propose to consider it shortly.
Joint
representation of the accused by a single president's counsel and what impact
it has on the subsequent conduct of the accused
Before considering the
other submissions made for and against the 1st accused, a brief
reference should be made to the mode of representation jointly exercised by the
accused. The learned DSG specifically referred us to the apparent conflict of
interest that was inherent between the 1st accused and 2nd to
6th accused. Throughout the trial, the 1st accused
denied the truth of the allegation levelled against him and was heard to
complain that he too was a victim of the crimes, almost to the same extent and
degree as in the case of his brother, sister-in-law, uncle etc.
What is necessary at this
crucial juncture is to ascertain as to whom the 1st accused
accuses of having committed the atrocities. The material available on this
aspect of the matter shows that his complaint was against none but the
intruders who entered his residing house. It was never his position
that the 3rd, 4th and 5th accused were not the
intruders or who perpetrated the crimes as alleged by the prosecution.
Therefore, it can safely be assumed that the 1st accused does
not dispute that the intruders who entered their house and terrified the entire
household including the 1st accused and his wife are the 3rd, 4th and
the 5th accused.
As has been submitted by
the learned DSG, a President’s Counsel had appeared for 1st to
6th accused from 14th December 2000 to 8th September
2005 in the High Court, although it was obvious that there was a serious conflict
of interest between the 1st accused and others. Upon a perusal
of the record of the Magistrate’s Court, it appears that a President’s Counsel
(presently deceased) has appeared in 1-6 accused throughout the non-summary
proceedings and cross examined the witnesses for the prosecution on the footing
that the 1st to 6th accused are not responsible
for the crimes committed and the eyewitnesses were making a false allegation on
that matter. This line of defence taken up in the non-summary proceedings
jointly by all 6 accused is diametrically opposed to the complaint of the 1st accused
who ought to have determined to bring the culprits to book.
It is of much importance to
note that the conflict of interest among the accused in reality had existed
from the very moment of the incident and had continued up to date. According to
the prosecution the 3rd to 5th accused have
perpetrated a cold blooded murder and the rest of the crimes. The 1st accused
maintained that the intruders inflicted injuries on him, robbed him of cash
(the amount of which he has not disclosed up to date) escaped from
the scene of offence in the vehicle forced to be driven by him at gunpoint and
in short responsible for his current predicament. Surprisingly, the 1st accused
has so far not expressed whether in his opinion the 3rd to 5th accused
were the actual culprits who are responsible for the crimes committed nor has
he said anywhere that it is not the 3rd to 5th accused
who committed the crimes and forced him to drop them back in the double
cab, although he had ample opportunity to disclose his stand on that
matter, in his statement to the police or finally in his dock statement.
(Emphasis is mine)
In the circumstances, it
could safely be assumed that the 1st accused has indirectly
admitted the stand of the prosecution that the 3rd, 4th and
5th accused were concerned with the commission of the crime. In
that frame of mind, it is difficult to understand as to the basis on which the
1st accused could have reposed confidence in his Counsel who
had also taken instructions to defend the 3rd, 4th and
5th accused. This is a grave incriminating circumstance
that should have been taken into consideration as an item of evidence against
the 1st accused.
The joint representation
entered by a single Counsel applies to the 3rd, 4th and 5th accused
vice versa. In this background, the prosecution has invited us to take notice
of this unusual arrangement made to represent the accused by one single
Counsel, as a relevant fact against them as well in determining their degree of
responsibility in the commission of the crimes. Considering the extreme unusual
conduct of the 1st accused and others, I am of the opinion that it constitutes
strong incriminating evidence falling into the category of subsequent conduct
of the accused.
I have stated that a
President’s Counsel had appeared for all the accused in the High Court until
08.09.2005. It is thereafter that the appearance had been marked separately for
the 1st accused and others. After this date until the
conclusion of the trial, the same President’s Counsel, continued to enter his
appearance for the 1st accused and quite surprisingly his
junior in the case, ceased to be his Junior Counsel and took over the case of
the other accused. This clearly shows that the cure provided was even worse than
the disease. The conspiracy between the 1st accused and the others,
particularly the 4th accused is quite apparent from this
arrangement. This being relevant to the fact in issue, cannot be ignored in
determining the degree of culpability of the accused. As this is borne out by
the record of the Magistrate Court and High Court none can say that it is not
proven to the required standard.
Motive
To establish the guilt of
the 1st accused the prosecution heavily relied on an alleged
motive as an item of relevant evidence. In criminal proceedings, the
prosecution is not bound to assign or establish a motive behind a criminal act.
In terms of Section 8 of the Evidence Ordinance, any fact which shows or
constitutes a motive or preparation for the commission of a crime is relevant.
As far as the 1st accused is concerned, on the face of the
facts established, it may appear upon a cursory glance, that he is a victim of
the crimes perpetrated and not involved in a conspiracy to commit them.
If there was a lack of
motive on the part of the 1st accused his claim that he is one
of the victims of the crimes perpetrated by 3rd, 4th and
5th accused would appear faultlessly genuine, for the
combination of lack of motive and tainted facts, would create a reasonable
doubt of high degree as to the guilt of the 1st accused.
Although the prosecution is not required to establish a motive, once a cogent
and intelligible motive is established, it considerably advances and
strengthens the prosecution case.
As stated by Channel,J in
Rex Vs Ellwood (cited with approval in Queen Vs Kularatna 71 NLR 529 at
534) (see Cross on Evidence at page 28) " There is a great
difference between absence of proved motive and proved absence of motive."
As far as the 1st accused
in this case is concerned, there was evidence of motive against him but he
never took upon himself to prove absence of motive (despite his not being
bound). To look at it from another angle the 1st accused never
challenged the evidence regarding the alleged existence of motive.
The prosecution witnesses
have attempted to unfold, a strong motive which prompted an angry reaction by
the 1st accused to be instrumental in the commission of the
offences in question. The factual background of the motive as disclosed by the
prosecution is that the virtual complainant was engaged with his father as
partners in the manufacture of linen and undergarment. They had commenced
business in the year 1966. After the death of the father in the year 1970, the
virtual complainant carried on the business as the sole proprietor for a short
period. Thereafter, in the year 1972- 73 he had accepted the 1st accused
as a partner. In 1984, they incorporated “Thusitha Industries Private Ltd” and
the two brothers became its sole shareholders. After its formation, the company
obtained a loan of Rs 13,000,000/- and the industry was developed utilizing the
loan so advanced. The virtual complainant has persistently accused the 1st accused
of siphoning off a large sum of money from the company for his own use. With
this money he had purchased vehicles etc. The 1st accused has
drawn money from the company without it being properly sanctioned to purchase
also a house at Melder place. The aggregate sum of money so drawn by the 1st accused
from the company is estimated to be in the region of 3 million in the year
1986-87.
The virtual complainant has
also blamed the 1st accused of having directly obtained monies
due to the company from its debtors and spending the same for his own use
without crediting it to the company's account. The 1st accused
is also alleged to have registered the trade name of the business
"Diamond" in his personal name. Above all, the 1st accused
is said to have started a rival business of manufacturing and selling products
similar to those that were manufactured by “Thusitha Industries Private
Limited”.
The 1st accused
is alleged to have sold machinery belonging to the company without proper
approval. The virtual complainant has complained against him on this matter to
the lending institution which ultimately appointed a member to be on the Board
of Directors to prevent the recurrence of such acts. These are some of the
controversies that had developed into a grave animosity between the two
brothers and resulted in the virtual complainant to have recourse to legal
remedy.
Over the death of their
mother, both brothers were at loggerheads. Due to this disagreement the 1st accused
had even complained to Narahenpita police against the wife (deceased) of the
virtual complainant, accusing her of giving an overdose of medicine to his
mother. According to the 1st accused drug overdose was the
immediate cause of his mother’s death.
Due to the above state of
affairs, there can be no doubt that the two brothers mutually would have gone
through the bitterest experience in their life as against each other and their
relationship too would have been irremediably damaged, both in regard to their
personal affairs and business transactions.
As has been indirectly
submitted by the Learned President’s Counsel, inasmuch as one can argue that
the 1st accused would possibly have been behind the entire fate
of misfortune that befell Samarasighe family, there is nothing to prevent a
counter allegation being levelled against the virtual complainant that the
charge made against the 1st accused was fabricated or merely
conjectural by reason of the prejudice the virtual complainant had towards the
1st accused owing to the displeasure. In other words the 1st accused
attempted to show that the motive concerning him is a double-edged weapon. It
is in this background the learned President’s Counsel submitted that the
disputes existed between the two brothers in fact caused damage and annoyance
not to the 1st accused but to his brother (Nimal) and are in
fact, if at all, a motive for the brother to act against the 1st accused.
In this respect, I wish to
emphasize that the motive sought to be established against the 1st accused,
if looked at it in the correct perspective, would appear on the face of it to
be exceptionally strong and very much relevant. Even though the High Court
Judge appears to have proceeded to conjecture on certain matters, the fact that
the prosecution established a strong case against the 1st accused
especially on a possible motive cannot be ignored. Taking into account
all these matters, in my opinion, there is no difficulty in believing the
existence of a strong motive, behind the back of the 1st accused
to harm the virtual complainant and his wife. As such the motive undertaken to
be established by the prosecution has been proved beyond reasonable doubt. The
conduct of the 1st accused subsequent to the commission of the
offences undoubtedly inculpates him. Such conduct of him relates back to the
moment immediately after the commission of the offence and extends up to a
considerable length of time. The mass of evidence from official witnesses such
as Doctor De Alwis and IP Munidasa supported by the evidence of Karunaratna as
to his meeting of the 1st accused on his return after having dropped the
culprits and the election of the 1st accused a counsel who defended the other
accused throw enough light as to his exact mentality and culpability.
Turning to the factual
background, the virtual complainant had met a lawyer to discuss matters
regarding the business dispute with the 1st accused and
returned home around 8.30-8.40 PM. The security officer was on duty at that
time. Right at that moment, the double-cab belonging to the 1st accused
had been parked unusually under the mango tree, instead of its usual place,
i.e. In front of the garage. The virtual complainant having then gone to the
bedroom originated a phone call to Edward Gunaratna, Attorney-at-law and
discussed for nearly 10 to 15 minutes about the dispute he had with the 1st accused
over the business. Thereafter, he had gone to the bathroom and come back in 10
minutes. While combing hair, he heard a Sound. The witness was emphatic that
when he was in conversation with Edward Gunaratna, Attorney-at-law over the
phone, the 1st accused left in his double cab and came back
almost at the same time when he heard the noise of a glass falling. Soon after,
he had rushed into the dining room, to find a man of the height of 5’ 2’’ armed
with a knife and in mask with an injured elbow standing. The witness then went
on to describe as to what took place in the room occupied by his uncle. There,
he had seen two people armed with pistols threatening his uncle, aunt and the
security guard.
The man armed with the
knife forced the witness, his wife and daughter to sit on the settee and
Buwaneka to sit where his wife and the security guard were seated. The two
intruders with pistols had entered the room of the complainant’s daughter then
searched the almirah for valuables but were disappointed to find no-one inside.
Narrating further details,
the witness said that the man with the black pistol went towards the room of
the 1st accused. The man with the black pistol went through the
bathroom and entered the witnesses’ room. He then demanded the witness and his
wife to come into that room and they were forced to open the almirah. The man
with the black pistol removed his mask and started to search for valuables in the
cupboard.
The person with the silver
colour pistol brought the 1st accused and hit him twice or
thrice. Then the 1st accused requested “to give whatever the
things they had” “;sfhk fohla oS,d bjr lr.kak” and upon this the wife of the
witness responded saying "we have given all what we had” and told the
witness “it is your brother who is behind this incident”.
Having taken the jewellery
the two men armed with pistols brought the witness, his wife and daughter to
the dining area. Both men removed their masks and put them in their pocket and
searched the cupboard once again. The witness was asked to open the safe for the
second time also. When it was opened they searched it and found cash on the
upper deck to the value of 60 to 70 thousand.
Recounting the most bitter
experience that traumatized the witness and his wife, Nimal went on to say that
they were asked to sit on the long settee on another occasion and the man with
the knife (5th accused) plastered the mouths of his wife and
Buwaneka. The gunmen (3rd and 4th accused) asked them to proceed to the room
again. At that stage, the 1st accused told them to leave the
child and go. He (1st accused) took the child and gave it to
one of the employees. Then the witness and his wife went into the room. Inside
the room accused removed the masks and put them into the pockets and ordered
the witness and his wife to sit on the floor. After obeying the orders the
witness pleaded with accused not to harm their lives. The accused said that, if
they were to behave as they were told, no harm will befall on them. The 3rd accused
scolded the witness. While the witness and his wife were lying on the floor
face downwards, then the witness was shot. He did not see as to who shot him.
There were no outsiders in the room at that time other than the 3rd and
4th accused. As the witness was shot his wife said why did you
then tell us that we won’t be harmed? Then the witness heard the sounds of two
more shots and then felt blood falling onto the carpet and someone breathing up
and also some liquid like substance falling on his body.
The fact that the double
cab of the 1st accused having been parked at an unusual place
loomed large in the course of the argument. By this the prosecution was trying
to make out that the 1st accused had conspired with the 3rd 4th and
5th accused the commission of the offence, and the vehicle was
parked unusually to facilitate the transportation of the culprits to the
residence and back. The learned President’s Counsel has contended that the
learned High Court Judge was not justified in having adverted to the fact of
parking of the vehicle in that manner thereby imputing a sinister motive to the
1st accused. According to the principal eyewitness for
the prosecution the 1st accused usually drops his servants at
night. As such the learned High Court Judge has erred himself when he expected
an explanation from the 1st accused as to what made him park
the vehicle under the Mango tree.
As regards the 1st accused
leaving the house shortly before the arrival of the intruders and returning
almost with the arrival of the intruders, the learned HCJ concluded that the
intruders had been transported in the double cab belonging to the 1st accused.
There was no direct evidence that the intruders were transported by the 1st accused.
However, relying on the circumstances spoken to by the main witness, the
learned High Court Judge has inferred that the intruders could have been
transported by the 1st accused. There are several reasons which
have contributed towards this conclusion. To begin with the witnesses have
clearly spoken as to the security arrangement that was in operation at the premises
where the incident had taken place. It is common ground as between the 1st accused
and the prosecution that to enter into these premises one has to come through
the main gate which is manned by security personnel during the day and
night. Then, the issue centres round as to how intruders found their way
into the compound without being noticed by the security guards. Learned
President’s Counsel has submitted that the fact that the security guard being
taken into custody by the intruders and the sound of breaking glass heard by
the main witness and one of the intruders being seen with bleeding injured are
suggestive of the intruders overpowering the security guard to enter the
premises and breaking a glass pane to enter the house. There was no evidence of
the security guard being overpowered by the intruders. The security guard had not
sustained any injuries. According to the evidence led at the trial it appears
that the security guard had been attracted into the house by the noise created
by the intruders.
The 1st accused
in his dock statement has not dealt with the allegation relating to his leaving
the premises in the double-cab shortly prior to the arrival of the intruders.
He neither admitted nor denied the allegation. Had he left the premises for a
genuine cause, he could have stated it in his unsworn dock statement which constitutes
evidence. It is very important both for the prosecution and the 1st accused,
as his having left the premises at that crucial point of time provides
circumstantial evidence to strengthen the prosecution case that it is he who
had transported the intruders into the compound avoiding a security check or
security identification. On the other hand if he did not leave the
residence as alleged by the prosecution witnesses to transport the intruders
into the house, he could have very well denied such allegation in the
statement, since it is one of the serious allegations levelled against him in
the form of an item of highly incriminating evidence. Further, when Nimal was
under cross examination on behalf of the 1st accused no
question was put or suggestion made about the double cab being parked under the
mango tree for an innocent purpose, as was urged by the President’s Counsel. No
doubt the learned HCJ has seriously misdirected himself with regard to the law
when he stated in the judgment that the 1st accused was obliged
to explain that the intruders did not have his cooperation to enter the house.
By this erroneous finding and unsubstantiated observation, the learned trial
Judge has misapplied the burden of proof and thus failed to appreciate the
well-recognized concept of burden of proof and evidential burden. Nonetheless,
in the light of the overwhelming evidence adduced against the 1st accused, the
misdirection on the part of the learned HCJ appear to me as a mere instance of
overstating the reasons for his conclusion.Even though Buwenaka says that the 1st accused
was assaulted twice or thrice by the intruders, surprisingly there were no
injuries on his body suggestive of such an attack. As narrated by Buweneka it
appears to be an assault by a friendly hand. These are matters that should be
duly taken into consideration in weighing the prosecution case. The fact that
the wife of the 1st accused had not been harassed by the
intruders in any manner speaks for volumes as to the aim of the intruders who
kept on harassing the virtual complainant, his wife and others and not the wife
of the 1st accused or the 1st accused himself.
This is a strong incriminating circumstance that has to be taken into
consideration.
The 1st accused
was in the double-cab for quite some time with the intruders when he was forced
to transport them. In the dock statement the 1st accused has
not mentioned a word about them wearing masks inside the vehicle. Even if they
did wear masks inside the vehicle, the 1st accused could have
disclosed in the dock statement his ability or failure to identify them. The
failure on the part of the 1st accused to disclose his
position, as to whether he is able to identify the other accused or not points
to a strong incriminating circumstance relating to a conspiracy to commit
murder, attempted murder etc.
To be fair by the 1st accused,
at this stage it is pertinent to observe the failure on the part of the
prosecution to lead the evidence of the security guard who was on duty at the
time of the incident. No reasons whatsoever have been given for such failure.
The 1st accused has contended that the failure to lead such
evidence attracts the presumption set forth in section 114 F
of the Evidence Ordinance. Taking into consideration the role played by
the security guard and the extent to which he has been harassed by the
intruders, undoubtedly the security guard had been one of the material
witnesses in the attended circumstances of the case. As such the failure on the
part of the learned Judge to consider the application one way or the other in
terms of Section 114F of the Evidence Ordinance may have deprived the accused
of the opportunity to cross examine him on the matter. However, it is to be
noted that the accused had not made any application to have his evidence led
even without the prosecution calling him. If the accused was so certain that
the security officer would have testified in favour of the accused they could
have made an application to the learned HCJ to call them as a witness or to
direct the prosecution to call him. If the accused had missed this opportunity
they could have yet called him as a witness for the defence, they were so keen
to have its evidence placed before the court. The accused had not elected any
of the above options.
It is well settled law that
the prosecution is not bound to call all the witnesses whose names appear in
the indictment as witnesses for the prosecution. Under the Evidence Ordinance
to presume that a particular witness was not called because his evidence would
be adverse to the prosecution is a presumption of fact and discretionary in
nature. To draw this presumption an important qualification is to satisfy the
trial judge that the witness concerned is necessary to unfold the narrative
that is withheld by the prosecution and the failure to call such a witness is a
vital missing link in the prosecution case. I do not think the accused have
established the pre-requirements to draw the adverse presumption on this
matter. Further, the security guard employed by “Thusitha Industries
Private Ltd” is an employee of both the virtual complainant and the 1st
accused. To call him to testify on the matter either against or in favour of
his employer (the 1st accused or the virtual complainant) would have put him
into severe embarrassment. For these reasons, I am not disposed towards the
invitation of the learned President’s counsel to draw an adverse inference
against the failure to call the security guard as a witness.
Another grave error in the
judgment stems from the conclusion that the intruders had been dropped near Sri
Jayawrdenapura campus at 10 P.M. By this the learned Judge surmised that the
said place was crowded at that time and imagined that the intruders were not
worried about getting down at a crowded place as they were not scared of the 1st accused.
Based on this conjecture the learned Judge thought that it stands to logic to
conclude that the 1st accused was sharing a common intention
with the other accused. Even though this finding is not supported by evidence,
it has not had the effect of being prejudicial to the accused, since the other
evidence against the 1st accused is overwhelming.
The learned Judge states
that involvement of the 1st accused with the crimes is
confirmed by the words uttered by the 1st accused to the
deceased and his brother requesting them to give away whatever they had to
finish it off. Parties impliedly agree that what was meant by this utterance is
to give whatever belongings they had to get rid of the problem. On a perusal of
the judgment, what appears to me is that the utterance made by the 1st accused
is an attempt to demonstrate the leniency shown by the intruders in not
plastering the mouth of the 1st accused. Hence, it cannot be
considered as being erroneous.
According to Nihal the 1st accused
requested the deceased to “give over the child”, but Buwenaka’s version was
that it is an intruder who ordered that the child be handed over. Without
assigning any reason the learned Judge accepted that it is the 1st accused
who requested the handing over of the child and then proceeded to surmise that
the 1st accused knew that Deepika was taken into the room to be
shot. This has clearly influenced the learned Judge to an unfair and
unreasonable opinion of the 1st accused. However, even after excluding
this finding as being unduly prejudicial to the 1st accused,
yet there is a large volume of proved circumstantial evidence against the 1st
accused.
Karunaratna alleged that
the 1st accused handed over an envelope yellow in colour containing cash. Significantly,
Nimal has not seen such an occurrence. Two matters arise for consideration with
regard to this allegation. Firstly, witness Karunaratna has not made any
mention of the alleged cash transaction to the police in his statement. The
learned President’s Counsel contends that in the light of this important
omission Karunaratna should not have been believed at all. Karunaratna was in
his seventies and in a state of shock when the incident took place. Therefore
he stated that he may have by an oversight omitted to mention this to the
police. The question one has to address at this point is the extent to which
Karunaratna can be believed on this matter. There was no allegation that
Karunaratna bore any animosity towards the 1st accused. As far
as Karunaratna is concerned both Nimal and Anuruddha are his nephews and
his explanation appears to me as plausible.
The 1st accused
did not deny in his dock statement that he handed over an envelope containing
money to the intruders. On the other hand he admitted having handed over such
an envelope. Karunaratna on the other hand has testified on matters that
are favourable to the 1st accused and virtual complainant as
well. A clear proof of this is the reference he made to the 1st accused
being manhandled by the intruders. More importantly, the 1st accused
admitted in the dock statement that he handed over an envelope without
conceding that it constituted payment to the intruders. In the circumstances,
no prejudice appears to have resulted against the 1st accused,
by reason of the contradiction arising from the evidence of Karunaratna.
Another piece of
incriminating evidence against the 1st accused is the presence
of two linear injuries on his upper right hand 5 inches long and another 7
inches long. Quite significantly, they were parallel injuries. According to the
medico legal report, there had been two superficial linear cuts placed parallel
to one another on the outer aspect of a right upper arm one measured 7” long
and the other 5’’ long. Dr Nadesan was the Judicial Medical Officer attached to
the Colombo South Hospital during the relevant period. According to
Doctor LBD Alwis whose medical competence has been admitted by the accused, two
injuries on the 1st accused could have been self-inflicted. The
1st accused has been examined by Doctor Nadaraja and the report
issued by him was produced through Doctor Elvis as the former was beyond the
seas at the time of the trial. According to the report of Doctor Nadaraja the 1st accused
has been admitted to hospital on 13.2.1989 around 9.50 pm and he has been
examined on 14.2.1989 at 3.30 pm., to be precise 17 hours after the incident.
According to Dr Nadaraj who had testified before the learned Magistrate at the
non-summary inquiry, the 1st accused has told him that he was attacked by
robbers with knife around 9:30 PM on 13.2.89. The doctor has not found any
defensive injuries on the body of the 1st accused.
At this stage it is useful
to examine the evidence of IP Munidasa who visited the 1st accused
at Ward No 20 of the Kalubowila Hospital at 11.30 p.m. on 13.02.1989, i.e. on
the day of the incident. According to Dr Alwis the 1st accused
has sustained two superficial (skin deep) injuries on his right arm. When
Buweneka pointed out the injuries to the 1st accused soon after
he returned home, he immediately responded by saying “talg lula keye” meaning
“it doesn’t matter”. This clearly shows that the injuries were not that
serious and the 1st accused himself treated them as being absolutely trivial
and the presence of those injuries had not bothered him at all. If the 1st accused
was actually attacked by the intruders who travelled in his double-cab, upon
Karunaratna pointing out the injuries to the 1st accused, he
should have promptly told him as to how he sustained them. For reason of his
own he has totally suppressed this information from Karunaratna. He has not
even told IP Munidasa, as to how he came by those injuries. This provides a
revealing insight into the possible ulterior motive behind the 1st accused
having opted to be an inmate patient of the hospital apparently without any
such necessity, at a time when his presence at his residence was absolutely
necessary. He has found the hospital as the safest place of shelter immediately
after the incident.As far as the prosecution is concerned, this
undoubtedly points to another incriminatory circumstance connecting him with
the crime.
As observed earlier the 1st
accused has not shown any interest to complain the matter to the police. When
IP Munidasa visited him at 11.30. p.m on the day in question, the 1st accused
had been asked by the inspector of police whether he was prepared to give a
statement. The response shown by the 1st accused to this suggestion was totally
unsatisfactory. According to IP Munidasa when the 1st accused had been asked
whether he is prepared to make a statement the prompt reply given to the
inspector of police by the 1st accused was that he was not prepared at that
time to make any statement. For purpose of clarity the relevant evidence of the
police inspector in its original form is reproduced below….
m% - Tn Th l¿fndaú,
frdayf,a wxl 20 jdgsgqjg .sfha lShg ú;ro?
W - rd;%S 11’30 g
m% - ljodo?
W - 2' 13 fjksod isoaêh
fjpsp ojfiau .sfha’
m% - ta wjia:dfõoS fus 1 jk
ú;a;slref.ka lgW;a;rhla ,nd.ekSug mshjr .;a;o?
W - uu Tyqf.ka m%ldYhla
,nd.ekSug mq¿jkao lshd m%Yak l,d’
m%ldYhla miafia ÿkafkd;a
fyd| fkao lshd Tyq ksy~ jqkd’
The words used by the 1st accused
to refuse to give a statement or postpone the recording of the statement are
quite significant.
The words used are “miafia
ÿkafkd;a fyd| fkao” On this occasion not only that he has refused to give
a statement for no obvious reasons but suggested that it is better to
give a statement later. He has never disclosed to IP Munidasa as to why he
considered it is better to give a statement later. The lack of enthusiasm shown
by the 1st accused, to make a prompt complaint or to reveal information within
his knowledge to the police when he had the opportunity to do so with no
effort, sheds light as to the involvement of the 1st accused in the commission
of the crime. This attitude of the 1st accused in my opinion creates a strong
incriminating circumstance. The persistent reluctance on the part of the 1st accused
to keep the authorities informed of the commission of the crimes, by the
intruders and the unusual lethargy shown by him in assisting the authorities to
apprehend the culprits by providing information within his knowledge also
cannot be ignored in weighing the circumstantial evidence against the 1st accused.
Quite apart from this, when
IP Munidasa visited the 1st accused at the hospital on the day in question, he
had observed that the 1st accused was smelling of liquor. This has compelled
the trial judge to arrive at the finding that it was burden of the 1st accused
to explain as to when he consumed liquor (whether prior to the incident or
after). As has been submitted by the learned President’s counsel this is a
clear misdirection of law. The learned High Court Judge in coming to this
conclusion seems to have been of the opinion that the 1st accused
probably could have consumed liquor in the company of the intruders after they
left the scene of offence and before he (1st accused) returned
home. The learned High Court Judge’s adverse observation that the 1st accused
could have consumed liquor in the company of the intruders is a conjecture and
therefore cannot be allowed to stand. However, what is surprising is that even
though there is no burden on the 1st accused to explain or deny
the allegation of having consumed liquor, he has not spoken a word in his dock
statement about that matter.
As far as the eyewitnesses
for the prosecution are concerned none of them stated that the 1st accused
was smelling of liquor at the time the incident took place. Added to this, the
1st accused himself did not take up the position that he
consumed liquor prior to the incident. When making the dock statement, the 1st accused
knew very well that it had been alleged by the prosecution that he was smelling
of liquor at the hospital. As such, the 1st accused ought to
have known the importance of this fact from the point of view of the prosecution.
It is quite strange that yet he made no reference in his dock statement against
this allegation. By reason of the above facts, the prosecution has clearly
proved that the 1st accused was smelling of liquor around 11.30 p.m. and that
it is unusual for him to have taken liquor at that time unless it was concerned
with the commission of the offences. Therefore what is important here is not
the absence of explanation as to when he consumed liquor as erroneously
approached by the learned HCJ, but the proved item of evidence that the 1st accused
was smelling of liquor at that moment.
As far as the incriminating
evidence against the 1st accused is concerned, one other matter that has not
been touched by the learned HCJ is the failure on the part of the 1st accused
to make a complaint or a statement to the police, if he was aggrieved to that
extent as claimed by him. Looking at it from the 1st accused point of view, the
brutality of the intruders was such that it had resulted in the death of a
member of his family and serious injury to his brother coupled with ruthless
attack on him and his having to part with undisclosed amount of money.
The 1st accused
has made an involuntary statement after the lapse of at least four days, i.e
after he was arrested by police. According to the medical report he had not
sustained such injuries which prevented him from making a prompt statement.
Taking into account the harassment he had been subjected to by the intruders
and the crimes committed on him, the 1st accused should have
made a prompt complaint, forgetting all his misunderstandings with his brother,
so as to facilitate the arrest of the culprits. The unaccounted delay in making
a voluntary statement by him is a grave incriminating circumstance that
militates against his defence.
The 1st accused
had returned home according to the prosecution around 10 PM. By that time his
brother and sister-in-law had been rushed to the hospital and upon meeting
Karunaratna at that time he had quite strangely failed to mention anything or
comment about the incident. When Karunaratna showed him an injury on his
shoulder the answer of the 1st accused was “it doesn’t matter” (talg lula
keye). He had not bothered to find out the position of his brother or
sister in law. On the contrary he had got himself admitted to the hospital with
two skin-deep injuries. This clearly shows the triviality in which the 1st accused
had viewed the entire tragedy. Not only that he was un-mindful of the sudden
blow on his brother and sister-in-law but he was not even assertive of his own
rights either.
The learned President’s
Counsel has submitted that in the instant case not a single incriminating
circumstance has been satisfactorily established so as to shift the evidential
burden on the 1st accused. His contention is that the
displeasure regarding the business activities, misunderstanding regarding the
cause of death of the mother, parking the double cab in an unusual manner, the
request made by the 1st accused to the complainant and his wife
to give away whatever they had and to finish it off are conjectures and
misconstruction that had arisen from available evidence. There is no doubt that
the learned High Court Judge has guessed certain matters as having actually
existed based on mere surmises. The trial Judge has in fact unreasonably looked
at the evidence and then proceeded to conjecture on certain unproven matters as
well. Despite the fact it had given rise to a complaint, I am not inclined to
think that when such misconstructions and surmises are removed from the impugned
judgment, there is evidence beyond reasonable doubt that the 1st accused
has in fact committed the offences described under Count No 1, 8,
9, 10, 11, 12, in the indictment.
As regards the case for the
prosecution presented against the 1st accused, it must be observed that the
strongest circumstantial evidence proved beyond reasonable doubt was the strong
feeling of animosity the 1st accused had towards the virtual
complainant and his wife. Both parties have had a very strong disagreement as
regards the death of the mother. This has even led to the 1st accused
to make a complaint at the police station. The gravity of the disputes the two
brothers were such, it had led to the virtual complainant to seek legal remedy
to prevent the 1st accused from siphoning off the funds of the
company, collecting the debts owing to the company and appropriating the same
for the benefit of the 1st accused, operating a rival business,
making use of the trademark for the business purposes of the 1st accused
etc. The virtual complainant had consulted lawyers and returned home few
hours prior to the incident. Even the lending institution being alerted on this
matter, as a remedial measure the lending institution had nominated it’s own
representative to the Board of Directors of “Thusitha Industries
Private Ltd”. The 1st accused had withdrawn almost Rs 30
million without proper approval. When the entire background of the
displeasure between the two brothers and the 1st accused and the deceased is
considered, one cannot simply ignore that the 1st accused had a
strong motive to eliminate both the virtual complainant and his wife. This
clearly shows when the intruders had opened fire only on the virtual complainant
and his wife when there were at least 11 people in the house at the time of the
incident. They are the virtual complainant, his wife, 1st accused, his wife, Mr
and Mrs Karunaratna, 2 security guards, 2 employees and the daughter of the
deceased. Quite strangely, the intruders had not harmed others to the extent
they did to the virtual complainant and his wife. As a matter of fact from the
conduct of the intruders it can be safely inferred that they were under the
impression that both the virtual complainant and his wife had died as a result
of being shot. All these facts clearly lead to the conclusion that the target
of the intruders was to murder the virtual complainant and his wife. The
friendly attitude shown by the intruders towards the 1st accused
and his wife sheds light to the conspiracy and the connection the 1st accused
has had with the intruders.
The items of circumstantial
evidence relied on by the prosecution to establish the charges against 1st accused
emanates inter alia from the evidence relating to the parking of the
double-cab in an unusual manner, the sudden disappearance of the 1st accused
immediately prior to the incident, his return almost at the same time when the
intruders appeared, the fact that the vehicle was again parked unusually at the
same place, and the 1st accused’s failure to mention this in
the dock statement. The other incriminating and circumstantial evidence
proved beyond reasonable doubt against the 1st accused can be summarized as
follows…
1. The strong motive arising
from the serious disputes the 1st accused has had with the
virtual complainant – which has not been denied in the dock statement.
2. Failure to make a complaint
against the intruders.
3. Failure on the part of the 1st accused
to cross examine the witnesses on the allegation that the 1st accused
suddenly left and returned just at the time when the intruders entered the
house and the failure of the 1st accused to touch on this
matter in his dock statement.
4. Failure to explain in the
dock statement what made the 1st accused to park his vehicle
under the mango tree and on his return once again to park it at the same place.
5. Failure to give any
plausible reason as to what made him to park the vehicle under the mango tree
or to mention the necessity to drop the servants on the day in question as the
reason for the parking of the vehicle at that point.
6. Failure on the part of the 1st
accused and his wife to find their way out through the independent entrance
from their room and immediately report the matter to the police or seek other
assistance to defeat the aim of the intruders.
7. The 1st accused
and his wife not having been plastered, as was done in the case of some of the
victims of the crime.
8. The failure to provide
information to the police despite the ample opportunity he had.
9. Failure to give a statement
immediately even after the police officer who visited the 1st accused
at the hospital, was prepared to take down the same.
10. Failure
on the part of the 1st accused to mention anything about the 3rd,
4th and 5th accused in the dock statement and
only referred to the 2nd accused.
11. Consumption
of liquor immediately after incident
12. Self-inflicted
injuries or injuries inflicted by a friendly hand.
13. The
concerted efforts made by all the accused to have their defence conducted by a
single lawyer during the whole of the non-summary proceedings and for a
considerable length of time before the High Court.
These items of evidence
when taken together they lend a solid support to conclusion that the said acts
on the part of the 1st accused are neither coincidental nor is
devoid of any ulterior motive.
The dock statement of the 1st accused
in this case is of much importance. He made a lengthy dock statement. A
substantial portion of the dock statement covers his grievances against the
virtual complainant with regard to the business matters and allegation
regarding the circumstances that led to the death of the mother. Apparently not
much attention has been paid in the dock statement to what happened to him in
the hands of the intruders. Quite significantly, he has taken the trouble to
mention his acquaintance with the 2nd accused. However no
mention has been made in that statement as to the culpability of the other
accused or whether he was harassed by the accused who stood indicted with him.
No doubt even if he implicated the other accused from the dock would have not
produced the other accused. However as a layman he could have at least stated
whether he was able to identify the culprits on that day. For purpose of ready
reference the relevant portion of the dock statement dealing with the incident
is reproduced below..
fus isoaOsh
iusnkaOfhka hula lshkjd kus fus ksjig fydrd wdmq wjia:dfjsoS lsjsjd lsh,d ;sfhk
fohla oS,d hjkak lsh,d’ ;j lsjsjd uu fydreka lKavdhu we|qus w,audrshu ,Õg wrka
.shd lsh,d’ uu okakjd i,a,s ;sfhkafka fiamamqfjs lsh,d’ Tjqka ug
msiaf;da,hla fmkaj,d wrka .sfha’ tuksid ug ;sfhk fohla fokak” lsh,d woyia lf,a
t;fldg ta whg ysrsyerhla lsrSfuka fyda fjk;a lrorhla lsrSfuka j,lsk ksid’ Bg
m%:ufhka ;ud uu uqo,a tkaf,dma tlla oqkakd lsh,d’ tu wiqjqfka uu l,ska ojfia
wuqo%jH .ekSu i|yd l,ska ,Eia;s lrmq uqo,a tkaf,dma tll uf.a w,audrsfha
;snqkd’’’’’’’’’ uqo,a tkaf,dama tl uf.a wf;a ;snqkd’ udj weof.k
wdjd’’’’’’’’’ úoafhdaoh hqksjisgs tl ,ÕoS jdykh k;r lrmka lsh,d lsjsjd’
jdykfhka neye,d wejs,a,d uf.a w; lemqjd’’’’’’’’’’ uu me;a;lg
jqkd’ wdfh;a wejs,a,d w; lemqjd’’’’’’’’’’’’ f.org .shdu udud lsjsjd
w; lems,d lsh,d’’’’’’’’’’’’’’’ iajduskS” fus js;a;slrejka .ek hula
lshkjd kus fofjks js;a;slre uu y|qkkjd’’’’’’’’’ Tyq uf.a us;%fhla’ ta yefrkak
fjk iusnkaO;djhla ;snqfka keye’ fus iusnkaOfhka ug fjk;a fohla lSug ;snqfka
keye’
In the light of the matters referred to above as to the liability of the 1st accused in the commission of the crime the circumstantial evidence without any doubt points to no alternative other than the culpability of the1st accused. The items of evidence placed for consideration of the learned HCJ by the prosecution does not constitute mere circumstances of suspicion as contended by the learned President’s Counsel.
In the light of the matters referred to above as to the liability of the 1st accused in the commission of the crime the circumstantial evidence without any doubt points to no alternative other than the culpability of the1st accused. The items of evidence placed for consideration of the learned HCJ by the prosecution does not constitute mere circumstances of suspicion as contended by the learned President’s Counsel.
The case for the
prosecution against the 1st accused not a mere probability on a
strong suspicion but goes beyond that degree. Despite certain negligible
weaknesses, the circumstantial evidence constitutes sufficient proof of the
allegation levelled against the 1st accused as to the charge of
murder, attempted murder, robbery, conspiracy etc, when considered as a chain.
In my opinion none of the link in that chain can be considered as broken.
For the foregoing reasons,
I am of the view that count numbers 1, 8, 9, 10, 11 and 12 had been proved
beyond reasonable doubt against the 1st accused and the learned High Court
judge is justified in convicting him on the said charges. The charges 2
to 7 against the 1st accused have not been proved and he is entitled to be
acquitted on those charges and the sentences imposed are accordingly set aside.
The material available
against the 4th accused to convict him for the charges preferred in the
indictment, need to be analyzed at this stage. As stated above the exercise of
the right of representation in an unusual manner, by the 4th accused along with
the 1st accused is one of the factors that speaks for volumes as to his
culpability. Upon information received from him while being in the custody of
police within a period of two weeks the police had recovered a pistol. The said
recovery has been proved with certainty. The said pistol was shown to the
virtual complainant for purpose of identification and it was accordingly
identified to be a weapon similar to what was in the hands of the 4th accused
on the fateful day. According to the evidence of the government analyst P3 is a
revolver and it is a gun within the meaning of the law and the two bullets
recovered from the body of the deceased may have been fired from the said
revolver.
As regards the identity of
the 4th accused the prosecution relied on the identification parade notes which
point to the 4th accused having been identified by the virtual
complainant. According to the virtual complainant the intruders have removed
the facemask on different occasions to facilitate a thorough search of the
almirah for valuables. It is the evidence of Karunaratna that according to one
of the intruders the immediate cause for opening fire on the virtual
complainant and the deceased was the suspicion that they had been identified.
This evidence corroborates the position of the virtual complainant that the
intruders at times lifted their facemask. For these reasons, probably the
virtual complainant was in a position to identify the 4th accused. The
identification of the 4th accused at the parade is corroborated
by the other evidence such as the discovery of the revolver from the possession
of the 4th accused and the opinion expressed by the ballistic experts.
Before parting with this
judgment it is not inappropriate to have replaced on record that the
misdirections and other errors committed by the learned LCJ appear to me as an
attempt towards the embellishment of his findings and conclusion and nothing
more. Therefore, when the evidence led by the prosecution and the dock
statements of 1st and 4th accused are
considered, in its entirety, I am of the opinion that such errors and
misdirections deserve to be ignored and excused. Vide under article 138 (1) of
the Constitution and section 334 of the Criminal Procedure Code.
In the circumstances, for
the reasons assigned by the learned HCJ in his judgment, the conviction of the
4th accused on count numbers 1,8,9,10, 11,12 and 14 is affirmed. However for
lack of evidence the conviction of the 4th accused on counts 2,
3, 4,5,6,7, is set aside and the 4th accused is acquitted on
those charges.
In the result my conclusion
of the appeals presented to this court would be as follows.
The conviction of the1st accused
on count numbers 1, 8, 9, 10, and 11 affirmed and his conviction on account
numbers 2 to 7 and 12 is set aside and his appeal is accordingly partly allowed
and partly dismissed.
The conviction of the 4th accused
on count numbers 1, 8,9,10, 11, and 14 affirmed and his conviction on account
numbers 2, 3, 4,5,6,7, 12 is set aside and his appeal also stands as partly
allowed and partly dismissed.
The conviction of the 2nd,
3rd and 5th accused and the corresponding
sentences passed on them are set aside and all three of them are acquitted on
all the charges in the indictment. Accordingly their appeals are allowed.
A W A Salam J
Judge of the Court of Appeal
I agree.
W L R Silva J
Judge of the Court of Appeal
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HC COLOMBO: 11/2000
P. Anuruddha Samarasingha
P L D Tissa Seneviratna
alias Lal
Priyantha Anura Siriwardena
alias Kotiya
S M A Nimal alias Katuwaa
E W Kamal Perera
Accused-Appellants
VS
Hon. Attorney General
Respondent
Before: W L R Silva J and A
W A Salam J
Counsel:
Tilak Marapona PC for the
1st Accused-Appellant, Shanak Ranasingha for the 2nd Accused-Appellant, Dr
Ranjith Fernando for the 3rd Accused-Appellant, Ruwan Udawala for the 4th and
5th Accused-Appellant and Yasantha Kodagoda DSG for the Respondent.
---------------------- E
N D --------------
Other details
HC COLOMBO: 11/2000
P. Anuruddha Samarasingha
P L D Tissa Seneviratna
alias Lal
Priyantha Anura Siriwardena
alias Kotiya
S M A Nimal alias Katuwaa
E W Kamal Perera
Accused-Appellants
VS
Hon. Attorney General
Respondent
Before: W L R Silva J and A
W A Salam J
Counsel:
Tilak Marapona PC for the
1st Accused-Appellant, Shanak Ranasingha for the 2nd Accused-Appellant, Dr
Ranjith Fernando for the 3rd Accused-Appellant, Ruwan Udawala for the 4th and
5th Accused-Appellant and Yasantha Kodagoda DSG for the Respondent.
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