Sri Lanka Law Reports
(1981) 1 S. L. R
SUPREME COURTWEERARATNE, J.,
WIMALARATNE, J., &
S. C. NO. 25/81
C. A. NOS. 47 TO 52/79
H. C. KURUNEGALA NO. 26/27
SEPTEMBER 28, 1981.
Criminal Law — Indictment for unlawful assembly, robbery and murder — s. 296 readwith s. 32 of the Penal Code Circumstantial evidence — Identification – Identificationparade – Presumption from possession of stolen articles.
Six persons were indicted on six counts of unlawful assembly, robbery end murder ofa Buddhist priest and found guilty on all six counts by the unanimous verdict of thejury. The Case rested on circumstantial evidence. In appeal the Court of Appeal acquit-ted the 3rd, 4th, 5th and 6th accused on all six charges on the ground of unsatisfactoryidentification. The 1st end 2nd accused were also acquitted on counts 1.2 and 3 based onliability as members of an unlawful assembly but their appeals on count 4 (murder onthe basis of common intention) and counts 5 and 6 (robbery and causing hurt whilstcommitting robbery on the basis of common intention) were dismissed. The 1st accuseddid not appeal from the judgment of the Court of Appeal. The 2nd accused appealedonly against the judgment and sentence on count 4 (murder on the basis of commonintention — s. 296 read with $. 32 of the Penal Code).
(1) Identification parades are held to enable persons to identify suspects who had notbeen known to them earlier, ft is therefore of the utmost importance that the identi-fying witnesses should be called as witnesses at the trial and asked the specific questionas to whom they identified at the earlier parade. The best evidence is not obtained bysimply asking the officer who held the identification parade to testify as to who identi-fied whom.
(2 ) There was so sharp a conflict in the evidence relating to the possession by the 2ndaccused of certain stolen articles (razor and pocket watch) and the evidence relating tothe discovery of a trunk box on a statement alleged to have been made by him that if theattention of the jury had been drawn to it the verdict may well have been different.
(3) Although the presumption arising from recent possession of stolen property is thatthe person in possession is either the thief or has received them knowing them to bestolen, there is no similar presumption that a murder committed in the same transactionwas committed by the person who had such possession. The onus still remains on theprosecution to prove that the person who committed the robbery did also commit themurder or participated in the criminal act of killing sharing a common intention to kill. 11
11) Sunderalal v. State of Madhya Pradesh 11954) 55 Cr. L.J. (S.C) 257.
(2) Fakirchand v. The State (1950) 51 Cr. L.J. 1265.
13) Chiraveddi Munayya v. Emperor 21 MLJ 1071.
(4) Don Somapala v. Republic of Sri Lanka (1975) 78 NLR 183.
Abeysekera v. Attorney-General
APPEAL from judgment of the Court of Appeal.
Dr, Colvin R. da Silva with N. V. de Silva for the appellant.
P. R. P. Perera Deputy Solicitor-General with W. N. D. PereraSenior State Counsel for the respondent.
Cur. adv. vult.
On 28.9.81 we allowed the Appeal of the 2nd accused from hisconviction and sentence for the offence of murder; we now stateour reasons.
Six accused were indicted in the High Court of Kurunegala withhaving committed the offences of unlawful assembly, robbery ofcash and articles to the value of Rs. 3390/- from the Minhettiyatemple, and of the murder of Rev. Sarananda Thero, the Chiefincumbent of that temple. The 1st, 2nd & 3rd counts were chargeson the basis that the six accused were members of an unlawfulassembly. The 4th count charged them with having committed theoffence of murder, an offence punishable under section 296 readwith section 32 of the Penal Code (Cap. 19), whilst the 5th and6th counts charged them with havinq committed the offences ofrobbery, and causing hurt whilst committing robbery, offencespunishable under sections 380 and 382 respectively read withsection 32.
The prosecution case briefly was that the six accused had ente-red the temple on the night of 10.3.75 removing an iron bar of thewindow in a room reserved for visiting priests, and had forcedopen various almirahs in the hall and in two of the rooms andremoved articles of clothing etc. from them. One of the almirahswas in the room where the deceased priest slept, one was in thehall and another was in a room which was reserved for Rev.Sumana, the Chief pupil of the deceased priest, who had taken upresidence in the Rekawa temple, two miles away, but who was inthe habit of visiting his 95 year old tutor at least twice a day.From the room where the deceased slept had been removed a"Zenith" Radio P6, and from Rev. Sumana's room had beenremoved various articles including a trunk box PI, a razor P13 in acase PI3(a), and a pocket watch P20 minus its winder. The Rev.Sarananda had been tied up and had been smothered and strang-led. Death had resulted from asphyxia resulting from strangulationof the neck. The person or persons who caused the death of thepriest had undoubtedly a murderous intention.
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(1981) 1 S. L. R.
Although three other persons had been sleeping in the templethat night there was no direct evidence of the identity of the intru-ders. The case for the prosecution rested entirely on circumstan-tial evidence, the main items of evidence being these
the presence of the left palm print of the 1st accused in oneof the shutters of the almirah in the deceased's room,which had been ransacked;
the sale by the 1st and 3rd accused on or about 16.3.75 atMaradankadawala of the radio P6 which had been stolenfrom the deceased's room;
the recovery of certain articles of clothing from the posse-ssion of the 3rd, 4th, 5th and 6th accused soon after theincident;
the recovery from the possession of the 2nd accused of asuitcase inside which were, inter alia, the articles P13,PI 3(a) and P20 at the time he was arrested by Police Cons-table Wilfred when he was running away from the house ofone Nimal alias Abeyratne on the approach of the Policeparty at about 11.30 p.m. on 19.3.75;
the recovery *of the trunk box P1 by Police Sergeant Kula-ratne, from behind the house of Nimal, on being pointedout by the 2nd accused on 21.3.75; and
the close association by the 2nd accused with the 1st accu-sed just before and some time after the date of the incident.
The jury by their unanimous verdict found all six accusedguilty on all six counts of the indictment. All six accused appealedto the Court of Appeal. That court acquitted the 3rd, 4th, 5th and6th accused on all the charges, as the articles found in their posse-ssion had not been satisfactorily identified as being propertybelonging to the temple. Consequently the 1st & 2nd accused werealso acquitted on the unlawful assembly counts 1, 2, & 3, buttheir appeals from their convictions on counts 4, 5 & 6 were dis-missed.
The 1st accused has not appealed from the judgment of theCourt .of Appeal. The 2nd accused has appealed only against thejudgment and sentence on count 4, that is the murder count.Our task has, accordingly, been to decide whether the 2nd accusedhas been rightly convicted of the murder of Rev. Sarananda. Therebeing no direct evidence that he it was who strangulated the priest,the problem is reduced to a determination as to whether the cir-
Abeysekera v. Attorney-General
cumstantial evidence points conclusively to his having shared acommon murderous intention with the person or persons whocaused the death of the priest by strangulation.
The Court of Appeal has given the following reasons for dismis-sing the appeal of the 2nd accused:—
“The main items of evidence against the 2nd accused-appellantwere his close association with the 1st accused appellant from the10th March for about 10 — 12 days. On 19.3.1975 he was caughtby P.C. 4879 Don Wilfred running away from Abeyratne's houseat 10.30 p.m. carrying a suitcase. In this suitcase was found a razorp.13a and a pocket watch p. 20 apart from other articles. Rev.Sumana had written his initials "" on the razor case and he
had no difficulty in identifying it as his razor which was kept inhis room in the Minhettiya temple. He also identified the pocketwatch p.20 as his property. He had engraved the letter 'M' nearthe figure '4' on the face of the watch. The winding knob wasmissing from the watch. This was later traced in the drawer of thetable in his room in the Minhettiya temple."
"According to Inspector Ratnayaka on 3.4.1975 on a statementmade by the accused-appellant: "I can point out where there aresardine tins" a crudely opened sardine tin was found near sometree stumps on a gravel road leading to the Minhettiya temple. The2nd accused-appellant had knowledge of the existence of a sardinetin close to the Minhettiya temple of the same brand as thosestocked in the temple prior to the murder. The 2nd accused-appellant gave no evidence at the trial and offered no satisfactoryaccount of the stolen articles found^ in his possession."
The main item of the close association of the 2nd accused withthe 1st is said to be the sale by the two of them on 16.3.75 of theradio P6 to one Ariyasena in the boutique of one Sugathadasa atMaradankadawela. The Court of Appeal has mistakenly gone onthe footing that the 2nd accused it was who was associated withthe 1st accused in that transaction. No, it was not the 2nd accusedbut the 3rd accused. The evidence was that the two persons whosold the radio set were unknown to Ariyasena and Sugathadasa.An identification parade was therefore held seven months later,on 20.10.75, in the Magistrate's Court by Mr. Ivor Perera, aJ. P. U. M. Ariyasena was not called to identify anyone at thatParade, whilst Sugathadasa's evidence at the trial was that he"identified two persons in the parade as those two who came tosell the radio." He was not asked as to who those two personswere. Mr. Ivor Perera testified to the fact that Sugathadasa, when
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asked to identify the persons who came to his shop and sold theradio to Ariyasena, pointed out B. M. Premaratne (the 1st accu-sed) and B. H. Lionel (the 3rd accused). The 2nd accused Abeyse-kera was not identified at that parade; the Court of Appeal hasthus erred in stating that he participated along with the 1st accu-sed in the sale of the radio and in treating that fact as an itemof circumstantial evidence against him.
It is necessary at this stage to comment on the evidence led atthe trial relating to the identification parade. Identificationparades are held to enable persons to identify suspects who hadnot been known to them earlier. It is therefore of the utmostimportance that the identifying witnesses should be called as wit-nesses at the trial and asked the specific question as to whom theyidentified at the earlier parade. The best evidence is not obtainedby simply asking the officer who held the identification paradeto testify as to who identified whom.
Let me now analyse the evidence relating to the possession bythe 2nd accused of the stolen articles P13, P13(a) & P20, and theevidence relating to the discovery of the trunk box P1 on a state-ment alleged to have been made by him. There is so sharp a con-flict of evidence on this aspect of the case that had the attentionof the jury been drawn to it, the verdict may well have been diffe-rent. Constable 4879 Wilfred of the Galewela Police claimed tohave arrested the 2nd accused on the night of 19.3.75 when hewas on patrol duty with another constable. On receipt of certaininformation they approached the house of one Nimal. The dogsbegan to bark, and when they flashed their torches two personscame out of the house of Nimal and started running. They arrestedone person who was the 2nd accused, and he had in his hand asuitcase, which when examined later at the police station contai-ned amongst some articles the razor P13, PI 3(a) & the pocketwatch P20. They were identified subsequently by Rev. Sumanaasthe articles lost from his room. Some weeks later he handed overto the Police the missing winder of the pocket watch.
Sergeant 6066 Kularatne also of the Galewela police went forinvestigations on the evening of 21.3.75 along with the 2nd accu-sed, to the house of Nimal, also known as Abeyratne. In a shrubjungle 50 yards behind that house he recovered the trunk boxP1 and also a suitcase and a travelling bag, all on being pointed outby the 2nd accused.
The evidence of Inspector Ratnayake who was attached to theKurunegala Police Station is that when he went to the Galewela
Abeysekera v. Attorney-General
Police Station on 27.3.75 he learned that the productions hadbeen removed to the Dambulla police station. Rev. Sumana identi-fied his articles at that station. In the course of his investigationsRatnayake traced Nimal alias Abeyratne at Lellopitiya, in Ratna-pura, and recorded his statement on 29.3.75. As a result of thatstatement he says he decided to arrest 1st, 2nd, 3rd & 4th accused.A search for them at their places of residence proved futile, buton 2.4.75, on information received he went to the Dambulla busstand and took the 2nd accused into custody and recorded hisstatement on 3.4.75. He went to the temple along with the 2ndaccused; by the gravel road that leads to the temple there weresome stumps of trees and on examination he found an open"Morjan" sardine tin P19 which had not been opened with a tincutter, but had been unevenly cut. There was evidence thatsimilar tins of sardine which had been stocked in the temple hadbeen lost
The officers therefore claimed to have arrested the 2nd accused
Constable Wilfred on 19th March and Inspector Ratnayake on2nd April. There was no evidence led at the trial that the 2ndaccused had been released from custody between the 21st Marchand the 2nd of April. The absence of such evidence ought to havecreated in the minds of the jury a doubt regarding the veracity ofthe evidence of either constable Wilfred or of inspector Ratnayakeor of both. It seems most extraordinary that when persons suspec-ted of theft are detected running away to escape arrest by thepolice they are seen very often carrying with them incriminatoryevidence such as the fruits of the very crimes they are suspectedof having committed. In spite of these serious infirmities in theprosecution case against the 2nd accused the Court of Appeal hasconsidered it safe to accept the verdict of the jury. We would,therefore, rather approach this problem on the footing that cons-table Wilfred is a truthful witness, and proceed to examinewhether the conviction for murder could yet be sustained in law.
On the question whether recent possession of stolen propertyraises a presumption not merely of theft or dacoity but also ofsome graver offence committed in the same transaction, the deci-sions of the Indian Courts appear to be conflicting. In some cases
eg. Sunderalal v. State of Madhya Pradesh — (1954) 55 Cr.LJ (S.C.) 257'*' — it has been held that in cases in which murderand robbery are shown to form part of one transaction, recentand unexplained possession of stolen property, in the absence ofcircumstances tending to show that the accused was only thereceiver of the property, would not only be presumptive evidenceagainst the prisoner on the charge of robbery but also on the
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charge of murder. There was evidence in that case that the stolenproperty sold by the accused was jewellery habitually worn by thedeceased, and also evidence that the accused and the deceasedwere seen together immediately before the murder. In other cases
eg. Fakirchand v. The State (1950) 51 Cr. II. 1265(2) a Full
Bench of the Madhya Bharat High Court has expressed the viewthat mere possession of property stolen from the deceased is notenough for convicting the prisoner for murder. The possession bythe accused of all the property which was the result of robberyjustifies only an inference that they took part in the robbery.
On this question Wills in his work on Circumstantial Evidence(7th Ed.) page 104 says— "The possession of stolen goodsrecently after the loss of them, may be indicative not merely ofthe offence of larceny, or of receiving with guilty knowledge, butof any other more aggravated crime which has been connectedwith theft." He then refers in footnote (2) to the case of Chira-veddi Munayya v. Emperor (21 MLJ) (1071)(3) "if it is provedthat a person was found, soon after the murder of another person,in possession of property which was on the person of the latterwhen last seen alive, an inference might be drawn that he obtainedpossession of the property by the murder of the deceased; but tojustify the inference, there must be satisfactory proof that thedeceased had them on his person at the time of the murder andthe accused cannot explain his possession." In India, therefore, nocertain rule of universal application appears to have been laiddown. The cumulative effect of all the circumstances, establishedby evidence and the nature of these circumstances have to betaken into consideration, and then it has to be judged whether,having regard to the ordinary course of human conduct, it is safeto presume that the offence was committed by the accused.
In the case of Don Somapala v. Republic of Sri Lanka (1975)78 NLR 183<4>, our Supreme Court has taken a view more in con-sonance with the principles of English law; that is that althoughthe presumption arising from recent possession of stolen propertyis that the person in possession is either the thief or has receivedthem knowing them to be stolen, there is no "similar" presump-tion that a murder committed in the same transaction was commi-tted by the person who had such possession. The burden stillremains on the prosecution to prove that the person who commit-ted the robbery did also either commit the murder or participatedin the criminal act of killing sharing a common intention to kill.
I would reaffirm the decision as stating the law relating to thepresumption arising from recent possession of stolen property.
Abeysekera v. Attorney-General
On an application of the principle laid down in Somapala's case(above) there was abosolutely no case for the accused to meet oncount 4. Even on an application of the principle stated by Wills(above) the fact that the property found to have been in the 2ndaccused's possession was not property proved to have been in thepossession of the deceased but in the possession of Rev. Sumana,in a room not even adjacent to the room where the deceased was,should enure to the benefit of the accused.
For these reasons we allowed the appeal of the 2nd accused oncount 4 of the indictment and acquitted him on the charge ofmurder.
WEERARATNE, J. – I agree.
RATWATTE, J. – I agree.
Conviction and Sentence quashed and 2nd accused acquitted.
ABEYSEKERA v. ATTORNEY-GENERAL