102
ANURUDDHA
SAMARANAYAKE AND FOUR OTHERS
VS. ATTORNEY GENERAL
COURT OF
APPEAL
RANJITH SILVA, J. ABDUS SALAM, J.
CA 36-40/2007
HC COLOMBO 11/2000, APRIL 29, 2009, JULY 13, 2009, SEPTEMBER 30, 2009
NOVEMBER 18, 23, 2009, FEBRUARY, 10, 2010, MARCH 8, 2010, JULY 8, 2010
NOVEMBER 29, 2010, DECEMBER 6, 2010, FEBRUARY 2, 3, 8, 2011, MARCH 7, 2011
Penal Code - Section 113 (f) 162, 140, 146, 300 - Murder, unlawful
assembly - Robbery' - Evidence Ordinance Section 8, Section 27, Section
113, 114 - Absence of proved motive - Proved absence of motive - Dock
statement - Subsequent conduct of accused -Burden of proof - Judicature Act
- Section 48 - Trial de novo - Same Counsel appearing for all accused -
Inferences? Constitution Article 138 (1) - Criminal Procedure Code -
Section 190 (5) - Section 338
The five accused -appellants along with the 6th accused [he was acquitted]
were indicted on several counts - Conspiracy to murder one N - murder of
one S - [wife of N] - being members of an unlawful assembly- Robbery.
In appeal it was contended that identification by a single witness unaccompanied
by other evidence does not warrant a conviction - that motive was not
established - that the trial Judge has misapplied the burden of proof -
that the trial Judge failed to consider Section 114 [f] of the Evidence Ordinance
- and the charges were not proved beyond reasonable doubt.
Held
(1) It
is not right on the part of the trial Court to convict a possessor of
alleged stolen 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 this offence will depend
on the other circumstantial evidence if any .
Per
Abdus Salam, J.
"The
case for the prosecution against the 1st accused is not a
mere probability on a strong suspicion but goes beyond that degree".
(2) The
learned High Court Judge has seriously misdirected himself with regard to
law when he stated that the 1st accused was obliged to
explain that the intruders did not have his co-operation to enter the
house, by this erroneous finding and unsubstantiated observation the trial
Judge has misapplied the burden of proof and thus failed to appreciate the
well-recognized concept of burden of proof and evidential burden.
(3) In criminal proceedings, the prosecution is not bound to assign or
establish 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. Although the prosecution is not
required to establish a motive once a cogent and intelligent motive is
established, that fact considerably advances and strength e ns the
prosecution case.
(4) It is well settled law that the prosecution is not required 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 with-held by the
prosecution and the failure to call such a witness is a vital missing link
in the prosecution case.
Per
Abdus Salam, J.
"The
prosecution has invited us to take notice of the 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 1staccused
and others I am of the opinion that it constitutes strong incriminatory
evidence falling into the category of subsequent conduct-the joint representation
entered by a single Counsel applies to the 3rd, 4th and
5th accused vice versa'.
APPEALS from the judgment of the High
Court of Colombo.
Cases referred to:-
(1) Wijesena
Silva vs. Attorney General 1998 3 Sri LR 309
(2) Q vs. Don Hemapala 64 NLR 1
(3) A.G. vs. Viraj Aponso SC 24/2008 525/2008, SC 79A/2007
(4) R vs. William Perera and Etin 45 NLR 433
(5) Sanwant Khan vs. State of Rajasthan 1956 AIR - SC 54 - 1956
Cr LJ 150 .
(6) Cassim vs. Udayar 44 NLR 519
(7) Rex vs. Ellwood
(8) Q. vs. Kularatne 71 NLR 529 at 534
Tilak
Marapana P. C.
for 1st accused-appellant.
Shanaka Ranasinghe for 2nd accused-appellant.
Dr. Ranjit Fernando for 2nd accused-appellant.
Ruwan Unawala for 4th and 5th accused-appellants.
Yasantha Kodagoda DSG for respondent.
March 25 , 2011
ABDUS SALAM, J.
The five Accused-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 Samarasinghe punishable under section 300 read
with sections 113 (b) and 102 of the Penal Code.
2. Being members of an unlawful assembly to murder Deepthi Champa
Samarasinghe, an offence punishable under section 140 of the Penal Code.
3. Being members of unlawful assembly committed the murder of Deepthi
Champa Samarasinghe an offence punishable under section 296 read with
section 146.
4. Being a member of the said unlawful assembly attempted to murder Nimal
Samarasinghe 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 Samarasinghe an offence
punishable under section 296 of the Penal Code read with section 32.
9.
Caused injury to Nimal Perera Samarasinghe 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
Samarasinghe an offence punishable under section 443 read with section 32.
12. To commit the offence of attempted murder of Nimal Perera Sarnarasinghe
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 insufficiency of evidence.
This concerns the several appeals preferred by the 1st to
5th accused against their convictions and sentences.
Dr. Ranjith Fernando took up a preliminary issue, at the hearing of this
appeal on the ground that the learned trial judge who 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(1)and Queen
vs. Don Hemapala(2) 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 purpose 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 (Hon Attorney General vs.
Goniyamalige Kamal Viraj Aponso(3). The Judgment 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 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 referred to namely Wijesena Silva and Attorney General, (supra)
Queen vs . Aluthge Don Hempala Silva (supra) are not applicable to section
48, even before it was amended it talks about, 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 Ranjit Silva J.
Both
Nimal and Deepthi 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. He also lived with his wife in the same
premises Buwaneka 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 Samarasinghe was a dentist by profession, a mother
of an infant girl and was carrying a foetus of 51/2 months gestation. Nimal
Perera Samarasinghe (virtual complainant and witness No 1 on the list of
witnesses for the prosecution) is her husband.
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 jewellary 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 learned 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 High Court Judge
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(4), 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(5) 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(6), 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 house breaking and theft by the accused. Some of the goods
burgled in Manner 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 (supra). 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 for 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 lessor 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 facemask during the
commission of the offences and the virtual complainant claims to have
identified him when the 3rd accused 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; as such evidence is insufficient to convict him 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 a verdict
of acquittal should be entered in his case. Hence, I feel constrained to
think that the convictions of the 3rd accused and sentences
passed on him should be set aside and the 3rd accused be
acquitted on all the charges.
As far as the 5th accused is concerned, the evidence
against him is almost the same as in the case of the 3rdaccused.
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 on 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.
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
leveled 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
accused 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 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 14thDecember 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 for 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 eye witnesses were
making a false allegation on that matter. This line of defence taken up in
the nonsummary proceedings jointly by all 6 accused is diametrically opposed
to the complaint of the 1staccused 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
had 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 other, 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 08.08.2005. 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 continue 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 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 proved to the required standard.
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 fact 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 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 as
faultlessly genuine, for the combination of lack of motive and tainted
facts in a state of confusion on, would create a reasonable doubt of high
degree as to the guilt of the 1staccused. According to the
authorities, although the prosecution is not required to establish a
motive, once a cogent and intelligible motive is established, that fact
considerably advances and strengthens the prosecution case.
As
stated by Channel, J in Rex vs. Ellwood(7) (cited
with approval in Queen vs. Kularatne(8) 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 1staccused never challenged the evidence regarding the
alleged existence of motive.
The prosecution witnesses have attempted to unfold in this case, 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
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 1staccused 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 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 1staccused would possibly
have been behind the entire fate of misfortune that befell Samarasinghe
family, there is nothing to prevent a counter allegation being leveled
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 from
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 1staccused 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 Gunaratne, 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 none 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 witness's room. He then demand
ed 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 "  "
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) askedthem to proceed to the room again. At
that stage, the 1st accused told them to leave the child
and go. He (1staccused) 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 sounds of two more shots and then
felt blood falling on to 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 looked 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 4thand 5th accused
the commission of the offence, and the vehicle was parked unusually to
facilitate the transportation of the cuplrits 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 this
premises one has to come through the main gate which is manned by security
personnel during 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 sound of
breaking glass heard by the main witness and one of the intruders being
seen with bleeding injury 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 1staccused,
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, for it is one of the serious allegations leveled 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 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 their 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 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 on 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 prerequirements 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 Jayawardenapure 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 Buweneke'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 favorable 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 other 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 Nadeshan was the Judicial Medical Officer attached to 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 report issued by him was produced through
Doctor Alwis as the former was beyond seas at the time of the trial.
According to the report of Doctor Nadaraja the 1st accused
has been admitted to hospital on 13.2.1089 around 9.50 pm and he has been
examined on 14.2.1989 at 3.30pm., to be precise 17 hours after the
incident. According to Dr. Madaraj who had testified before the learned
Magistrate at the non-summary inquiry, the pt accused has told him that he
was attacked by robbers with knife around 9.30 p.m. 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 Kalubowila Hospital at 11.30 p.m. on 13.03.1989, i.e on
the day of the incident. According to Dr. Alwis the 1staccused
has sustained two superficial (skin deep) injuries on his right arm. When
Buwaneka pointed out the injuries to the 1st accused soon
after he returned home, he immediately responded by saying " "
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 1staccused 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 reasons 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 the 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
....
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  (On
the 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.
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 2nd 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 in 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 1staccused
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" He
had not bothered to find out the position of his brother or sister in law.
On the contrary he had admitted himself at 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 of the two brothers were such, it had
led to the virtual complainant to seek legal remedy to prevent the 1staccused
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 if "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
the they were under the impression that both the virtual complainant and
his wife has 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 1staccused suddenly
left and returned just at the time when the intruders entered the house and
the failure of the 1staccused 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 the
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. 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.
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 the 1st 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 is not
a mere probability or a strong suspicion but goes beyond that degree.
Despite certain negligible weaknesses, the circumstantial evidence
constitutes sufficient proof of the allegation levelled against 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 links 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 4thaccused along with the 1st accused
is one of the factors that speak 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 to place
on record that the misdirection and other errors committed by the learned
high Court Judge 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 entirely, 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 High Court
Judge 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 the 1st accused on count numbers 1, 8, 9,
10 and 11 affirmed and his conviction on count 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 count 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.
SILVA J - I agree
Appeals of the 1st and 4th accused partly
allowed.
Appeals of the 2nd, 3rd and 5th accused
allowed.
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