Don Somapala v. Republic of Sri Lanka
1975 Present : Thamotheram, J.., Deheragoda, J., and
H. MUDIYANSELAGE DON SOMAPALA Appellant andREPUBLIC OF SRI LANKA RespondentS. C. 111/74—H. C. Gampaha—17/74
Penal Code—Murder and Robbery—Possession of stolen property—Misdirection by trial judge.
Evidence Ordinance—Confession—Inference that the accused committedthe offence—Prejudice to the accused.
(i) The accused-appellant was charged with the murder ofthree persons and in the course of the same transaction withhaving committed robbery. The trial judge directed the jury thatwhere murder and robbery have been shown, as in this case, toform part of the same transaction, a recent and an unexplainedpossession of the stolen property will be presumptive evidenceagainst a person on a charge of robbery and would similarly beevidence against him on a charge of murder.
A84THAMOTHERAM J.—Don Somapala v. Republic of Sri Lanka
Held, That while the Court may presume that a man who is inpossession of stolen goods, soon after the theft is either the thief orhas received the goods knowing them to be stolen, unless he canaccount for their possession, there is no similar presumption thata murder committed in the same transaction was committed by theperson who had such possession.
(ii) A sword was recovered from the house of the accused, fromthe accused’s mother, on a statement made by the accused to thePolice to the effect. “ I went home and gave the sword to mymother There was no evidence that the sword so recovered wasthe weapon used to commit the murders.
Held : that the evidence of the accused’s statement to the Policewas wrongly admitted as the possession of a sword cannotestablish that the accused did participate in the criminal act ofkilling or that he had a common intention to kill, but thepossession of the weapon which was used for the killing can.
Appeal against conviction.
P. B. J. B. Bulumulla (assigned) for the accused-appellant.
Sarath Silva, Senior State Counsel, for the State.
Cur. adv. vult.
September 23, 1975, Thamoiheram, J.t
The accused-appellant was charged before the High Court ofGampaha with having committed the murder of three persons,Somadasa, his wife Somi Nona and their 13 year old son Pathma-tilleke. At the trial, the State Counsel moved to amend the indic-ment by adding as the 4th count a robbery charge which read :
“ That in the course of the same transaction (he) did com-mit robbery of cash, of a gold chain, and a wrist watch valuedat Rs. 500 from the possession of Wanaguruge Somadasa. ”
The date of the offence was 28th April, 1971, at a time wheninsurgent activities were rampant in the country and had not yetbeen brought under control. There was no evidence that insur-gents were active in this area.
On the 30th of April, 1971, in the evening Charles Senanayake,the Gramasevaka of the area, having received a complaint, wenttowards the house of the deceased. He got a foul smell from somedistance away. When he went up to the house he noticed that allthe doors and windows of the house were closed. Looking througha tat with the aid of a torch, he saw the dead bodies of the threedeceased in the hall. He informed the Dompe Police, who arrivedthe next morning.
THAMOTHERAM, J.—Don Somapala v. Republic of Sri Lanka
The three deceased had been brutally murdered ; each had deepcuts on the neck and all would have died instantaneously. Afterthey had been killed, an attempt had been made to set fire to thebodies, for they had burn marks which were post-mortem. Thedeceased persons were the only inmates of the house. They hadbeen killed about the 28th of April, 1971 ; two days before theirbodies were discovered. Looking at the circumstances of the kill-ing and the nature of the injuries, one would infer that the assai-lants had entered the house that night with murder in theirheart rather than robbery. Either the murder was pre-planned orsomething had transpired after the entry of the assailants intothe house to make such brutal killing necessary.
Inspector Abeyratne, who went in on the morning of 1st May,1971, noticed that the almirah had been opened and articles re-moved. There was no evidence that the deceased had large sumsof money or valuable jewellery. It was suggested that there wasa rumour in the village that the deceased Somadasa had sold aland and the suggestion for the prosecution was that the assai-lants had broken into the house, hoping to find the proceeds ofthe sale. This is a motive which could have been common tomany in the neighbourhood.
Although the charge refers to robbery of cash, there was noevidence led in support. The only articles belonging to the de-ceased which were recovered were a gold chain and a wristwatch. A question which strikes one at the outset is, was suchbrutal killing necessary for the robbery that was actuallycommitted ?
The prosecution proceeded against four persons in the Magis-trate’s Court which included one Douglas and J. P. Martiri.Douglas was a thug in the village. The police used to often go irfsearch of him. He stayed less than 100 yards from the accused’shouse. He was involved with 8 others in a robbery case. He wasremanded for sometime and had only recently returned fromprison. There was also the evidence that the selfsame Douglaswas taken by the police, together with the accused, to the jewel-lery shop also as a suspect in the case. The statement of the
THAMOTHERAM, J.—Don Somapala r. Republic of Sri Lanka
jeweller was that he had identified both the accused and DouglasThe latter had brought a gold bangle for sale which the jewellerclaimed he refused to buy as he suspected them to be stolen.
The prosecution case at the non-summary inquiry was thatmore than one person had participated in the robbery and themurders. The accused alone was committed to stand his trial. Theindictment was presented on the basis that the accused alone wasresponsible. As the case proceeded, the defence brought out mate-rial on which it was probable that more than one person had par-ticipated in the killing that night. The Doctor thought it moreprobable that at least two persons had attacked the deceased.The Registar of Finger Prints had found many finger andpalm impressions which he was not able to identify. In view of allthese, the learned Jftdge had rightly left both issues to the Jury.
The learned Judge said this at one stage in his charge :
“ What you have to decide in this case and what you haveto find out is not who killed or could have killed Somadasa,Sominona and Pathmatilleke, but whether it was this accusedwho killed them ? I will, at a later stage, tell you that youwill have to decide whether this accused did it alone orwhether the accused did it along with others. ”
He said elsewhere:
“ To prove the charges of murder, the prosecution mustprove that it was the acts of the accused and of this accusedalone that caused the injuries of Somadasa, Sominona andPathmatilleke. ”
He summed up the prosecution case as resting on five ‘ pillars. ’He said :
“ Now gentlemen, the most important ingredient in thiscase is the identity of the assailants. As you will notice, theprosecution has built its whole case, if I may say so, on fivepillars. The first pillar is the possession of the gold chain bythe accused which the prosecution says belonged to SomiNona, shortly after her death. The 2nd pillar is the possessionby the accused of the wrist watch shortly after this incident.In fact the possession of both these articles were on the sameday, i.e. the 1st of May, 1971, which belonged to Somi Nona
THAMOTHERAM, 3. —Don Somapaia v. Republic of Sri Lanka
and also five ten rupee notes. The 3rd pillar is the sword,,which according to Sergeant Rahim, was recovered from thehouse of the accused from the accused’s mother on a state-ment made by the accused to the effect: “ I went home andgave the sword to my mother. ” The 4th pillar is the fingerand palm prints of the accused found at the scene by S. I.Sirisena and V. Liyanarachi the Registrar of Finger Prints.The 5th pillar according to the prosecution is the conduct ofthe accused. First of all, what the prosecution says is thestrange conduct of the accused on the day of the burial ofSomi Nona, Somadasa and Pathmatilleke and secondly, theconduct of the accused on the day when he was arrested bySergeant Rahim, where Sergeant Rahim says that he wasexcited and his emotions upset and that he ran and he waschased and arrested. ”
The learned Judge referred to the possession of a sword about18 days after the murder as a. ‘ pillar ’ of the prosecution. This isthe only item of evidence which suggests violence. The other* pillars ’ really amounted to (a) the possession of stolen articles ;(b) the accused’s conduct, and (c) the finding of the palm andfinger impression on the almirah and wash basin respectively. Theprosecution can only rest a case of robbery on these ‘ pillars ’ andthereafter, try to suggest that since the accused was present atthe time of the robbery, he must have participated in themurders as well-
It is not possible to take the view that the accused committedthis offence alone in view of the medical evidence that probablyat least two persons participated in the killing. Further, not onlywere the finger impressions of the accused found at the scene, butthere were many others which were not decipherable and whichcould well have come from other persons who participated in theattack.
We have, therefore, to consider the other alternative ; that thisaccused committed the offence of murder together with others.
Is there evidence that the accused, with the others, caused theinjuries on the deceased ? Did he share a common murderous in-tention with others ? This implies that the accused went with
THAMOTHERAM, J.—Don Somapaia v. Republic of Sri Lanka
others to commit murder or at the spur of the moment joined theother to commit murder. Can we say that these further elementshave been established by merely proving the accused’s presenceat the scene ? It is here that we think that the learned Judgeseriously misdirected the Jury when he said :—
“ Gentlemen in a case where murder and robbery has beenshown, as in this case, to form part of the same transactiona recent and an unexplained possession of the stolen propertywill be presumptive evidence against a person on a charge ofrobbery and would similarly be evidence against him on acharge of murder. ”
The Court may presume that a man who is in possession ofstolen goods, soon after the theft, is either a thief, or has receivedgoods knowing them to be stolen, unless he can account for itspossession. This is a presumption which a Court may or may notdraw depending on the circumstances of the case. There is no“ similar ” presumption that a murder committed in the sametransaction was committed by the person who had such posses-sion. There is no presumptive proof of this. The burden still re-mains to prove beyond reasonable doubt that the person whocommitted the robbery did also commit the murder. All that theprosecution has established is that the accused was present at thetime of robbery.
If it was, as rightly conceded by the State Attorney at the hear-ing, that more than one person was present, then there must besome more evidence to show that the accused was not only athief but that he participated in the criminal act of killing,sharing a common intention to kill. This cannot come from recentpossession of stolen articles, nor does it come from the conductof the accused which can be explained by the fact that he was theperson who committed the robbery. It is in these circumstances,that we must examine the item of evidence relating to the sword.The possession of a sword cannot establish that the accused didparticipate in the criminal act of killing or that he had a commonintention to kill, but the possession of the weapon which wasused for the killing can.
THAMOTHERAM J.—Don Somapala v. Republic of Sri Lanka
Sub-Inspector Abdul Rahim gave the following evidence : —
“ On the 6th of May, 1971, I visited the house of the
accused He was not at home
The next time was on the 15th of May It was
at about 1.20 p.m. I arrested the accused. When I first sawhim his emotions were upset and he appeared to be excited.Thereafter he started running. I gave chase and arrested him.In arresting him I had to use minimum force to bring himunder control. His arrest was made in the compound of hishouse. I recorded the statement in the verandah of his house”“ 306. Q :In the course of his statement did he say this to
you : “I went home and gave the sword to mymotherA :Yes. ”
In our opinion, this could well have led the Jury to take theview that in the statement the accused made to the S. I., he hadadmitted that he used the sword and that this sword he handedover to his mother. Although the learned Judge had given cor-rect directions on this point, the Jury could still have made theinference that the accused had confessed to the killing.
In this connection, it is interesting to note what transpired atthe trial in the absence of the Jury, before the State Counselopened his case. The learned Judge told the defence counsel. “Itwill not be possible for the prosecution to prove that it was thisidentical weapon that was used and what the prosecution canprove is that the injuries were caused with a weapon similar tothe weapon used in this case and it will be a matter for the Juryto decide whether this was the identical weapon or not that wasused. ” He said this when the State Counsel informed him that hewould be leading in evidence a part of the accused’s statement tothe police where he has said as follows : —“ I went home andgave the sword to my mother. ”
In our opinion, this evidence should not have been admitted asit would have caused great prejudice to the accused as the caseagainst him depended on circumstantial evidence alone. TheJudge, having remarked that it was not possible for the prosecu-cution to prove that it was the identical weapon that was used,
Dharmasena de Silva v. The Director of Public Prosecutions
proceeded to say that it will be a matter for the Jury to decidewhether it was this identical weapon or not that was used. Howcan the Jury decide something which was not capable of proof ?To our mind not all the warnings given by the learned Judgecould have prevented the Jury from falling into the same erroras the Judge and infer that the sword produced was in fact theidentical sword that was used although this was incapable ofproof.
In all the circumstances of this case, we do not think it is safeto allow the convictions and sentences on the murder to stand.We, therefore, quash them and acquit the accused on thesecharges.
The conviction and sentence on the charge of robbery are
Deheragoda. J.,I agree.
H. MUDIYANSELAGE DON SOMAPALA Appellant and REPUBLIC OF SRI LANKA Respondent