JAYAWARDENA & OTHERS
COURT OF APPEALHECTOR VAPA. J.
CA 98 – 100/97HC COLOMBO 8160/9613rd DECEMBER 1999
Penal Code – S.32. S. 140. S. 146. S.380 – Unlawful Assembly ■ Robbery ■Belated complaint – After 5 years – Evidence lack consistency – Mearis ofKnowledge – Motive – Infirmities in Evidence.
The Three Accused Appellants with others unknown, were indicted onthree counts, and were convicted by the High Court.
It was contended by the accused Appellants that, this case was institutedconsequent to a belated complaint made by the complainant, that theevidence of the Complainant was unreliable, and he had utteredfalsehoods, and that there was strong motive for the complainant toimplicate the three accused.
The incident had taken place on 28. 12. 1989 and the 1st Complainthad been made in 1995. Even assuming that during the period 1989 -1990 there was a fear psychosis that prevailed in the country, it iscommon knowledge that by 1991, conditions had improved and it waspossible for any citizen to lodge a complain t at any Police Station. It wou Idbe dangerous to act on the evidence of the complainant in view of the longdelay which has not been satisfactorily explained.
The failure of the complainant to mention the names of the Is' and3rd Accused Appellants in the complaint made to the Police would showthat a complainant’s evidence lack consistency and therefore unreliable. 3
(3)The three accused Appellants were suspected by the complainant forthe murder of his son. This would show very clearly that the complainanthad a very strong motive to implicate the three accused falsely.
APPEAL from the Judgment of the High Court of Colombo.
A.R.C. Perera for lsl and 3rd Accused Appellants.
Jayaivardena & Others v. The State (Hector Yapa, J.)
Ms. Priyadharshani Dias Assigned Counsel for 2nd Accused Appellant.B. Aluvihare, S.S.C. for the State.
Cur. adv. vult.
December 13, 1999.
HECTOR YAPA, J.Three accused-appellants with others unknown to theprosecution were indicted in the High Court of Colombo, onthree counts. In the first count accused-appellants werecharged that on or about 28. 12. 1989 they were members ofan unlawful assembly whose common object was to commitrobbery, an offence punishable under Section 140 of the PenalCode. In the second count they were charged that in the courseof the same transaction, while being members of the saidunlawful assembly, they committed robbery of cash in a sumof Rs. 8,000/=, jewellery (two chains and four bangles) and awrist watch from the possession of Ranpathi DewageSarathsena, an offence punishable under Section 380 readwith Section 146 of the Penal Code. The third count was acommon intention count for committing the robbery of cash,jewellery and a wrist watch (as referred to in count two), anoffence punishable under Section 380 read with Section 32 ofthe Penal Code. After trial the three accused-appellants werefound guilty of all three counts and thereafter they weresentenced to a term of 6 months rigorous imprisonment on thefirst count. On the 2nd and 3rd counts, each of the accused-appellants was sentenced to a term of 6 year’s rigorousimprisonment and to a fine of Rs. 8,000/= in respect of eachcount. The sentences of 6 year’s rigorous imprisonmentimposed on each of the accused-appellants in respect of the 2ndand 3rd counts were to run concurrently. Further a defaultterm of two year’s rigorous imprisonment was imposed oneach of the accused-appellants in respect of the fine ofRs. 16.000/= ordered on the 2nd and 3rd counts.
At the trial the prosecution led the evidence of thecomplainant Sarathsena. A. S. P. Abeynayake, and P. C.Wickremapala. The complainant Sarathsena in his evidence
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stated that on 28. 12. 1989 he was residing at Kalalgoda in thePannipitiya area. On that day around midnight some personsknocked at the door of his house and when the complainantquestioned them, he was told that they were from the Army.When the complainant Sarathsena opened the door, he wasable to identify the first accused Sergeant Jayawardana. thethird accused Suraweera and the second accused Dixon, sincethere was a chimney lamp burning in the house. Sarathsenasaid that he knew the first accused-appellant as he had cometo his house with I. P. Ranagala on a previous occasion insearch of his son. He knew the second and third accused-appellants since they were living in the Ragama area not veryfar from his house. These accused-appellants who came thereordered him to put out the lamp that was burning and then thefirst accused-appellant went to the room followed by the thirdand the second accused-appellants. At that time the 2mlaccused-appellant had a torch with him. Thereafter the 2mlaccused-appellant opened a jar which contained the jewelleryof his daughter and his wife and took the contents. The firstaccused-appellant had opened Sarathsena's almirah and hadtaken charge of the bills, letters, pass books and horoscopesof his children. Thereafter these accused-appellants hadordered the complainant to close the door and then left theplace. After they left Sarathsena had observed that the cash,jewellery, the horoscopes, bank pass books etc. had beenremoved. This witness further stated that on 29. 12. 1989, hehad come to know that his son had been taken away by thepolice. Therefore he had proceeded to the Koswatta policestation looking for his son, when he had been told to checkfrom the Ragama police. Thereupon when Sarathsena went tothe Ragama police station, he was not allowed to make acomplaint there. Witness further recounted that he knew thefirst accused-appellant who was working at the Ragama policestation during that time. Complainant Sarathsena alsoadmitted that he made a complaint to the police with regardto the robbery which took place on 28. 12. 1989. only on
Jayawarclena & Others v. The State (Hector Yapa. J.)
18. 01. 1995. According to him the delay in making thecomplainant was due to the conditions that prevailed in thecountry. In this case in addition to the evidence of thecomplainant Sarathsena, prosecution led the evidence of twopolice witnesses.
At the hearing of the appeal, it was submitted by learnedCounsel for the accused-appellants that this case wasinstituted consequent to a belated complaint made by thecomplainant. Counsel submitted that the incident had takenplace on 28. 12. 1989 and the 1st complaint had been made inthe year 1995, five years after the incident. Therefore it wascontended that a conviction should not be based on suchbelated material specially in view of the fact that thecomplainant Sarathsena has failed to explain the long delaysatisfactorily and cogently. When the complainant wasquestioned with regard to the long delay in making thecomplaint to the police in respect of the robbery that took placeon the night of28. 12. 1989, he had taken up the position thatthe police were not accepting complaints from the publicduring the period. At the same time he tried to explain thedelay, by saying that due to the fear he had that his family maybe destroyed, presumably by the police, he did not make acomplaint to the police. According to the complainant, it wason hearing that the government had requested the public tomake complaints in respect of missing persons to thecommissions, that he decided to make a complaint. We cannotaccept this position taken up by the complainant that till 1995,he could not make a complaint to the police with regard to therobbeiy, due to the reasons given by him as referred to above.Even assuming that during the period 1989 to 1990. there wasa fear psychosis that prevailed in the country, it is commonknowledge that by 1991 conditions had improved and it waspossible for any citizen to lodge a complaint at any policestation. On this matter one cannot disregard the evidence ofChief Inspector Ranagala who was called by the defence. It was
] 96Sri Lanka Law Reports1200013 Sri L.R.
Inspector Ranagala's evidence that, when he assumed dutiesas Officer-in-Charge Ragama police station in 1990, peoplewere able to come to his police station to make any complaint.In addition I. P. Ranagala said that the conditions during thattime was so peaceful that he was able to organize New Yearcelebrations during the three year period he served at theRagama Police Station. In these circumstances it wouldappear that the complainant had given false evidence, whentrying to explain his long delay to make a complaint to thepolice with regard to the robbery. It is needless to say that sucha long delay without reasonable grounds would make theevidence of the complainant, who is the only witness to therobbery suspicious and unsatisfactory having regard to thetest of spontaneity and contemporaneity. It is commonknowledge that, when complaints are not made promptly afteran incident, there is always room for false implicationmotivated by ill will or on hearsay material. Therefore in ourview there is merit in this argument advanced by learnedCounsel that it would be dangerous to act on the evidence ofthe complainant in view of the long delay which has not beensatisfactorily explained.
Another submission made by learned Counsel for theaccused-appellants was to show that the evidence of Sarathsenawas unreliable owing to two vital omissions observed in thecomplaint made by Sarathsena to the police on 18. 01. 1995.It would appear from the complaint recorded by P. C.Wickremapala, that the complainant had omitted to mentionthe names of the 1st and 3rd accused-appellants as persons whocame to rob his house on the night of28. 12. 1989. Sarathsenahad only mentioned the name of the second accused-appellantDixon and referred to others as police officers. It was only in theprepared statement of the complainant which had beentendered to the police at the time of making his complaintthat he had referred to the names of all three accused-appellants. At the High Court trial the prepared statement hadbeen produced marked PI presumably as the lsl complaint.
Jayawardena & Others v. The State (Hector Yapa. J.)
It would appear that the prepared statement (PI) had beenpasted by P. C. Wickramapala immediately below Sarathsena’scomplaint. In our view the failure to mention the names of the1st and 3rd accused-appellants in the original complaint madeto the police, by Sarathsena should therefore be considered astwo vital omissions. The complainant Sarathsena sought toexplain the two omissions on the basis that in his preparedstatement, he had in detail referred to the three accused-appellants and therefore it was unnecessary to give theirnames again in the complaint made to P. C. Wickremapala.However it is to be noted that even in the complaint made toP. C. Wickramapala. Sarathsena had made a detailedcomplaint and in the circumstances it would be difficult tounderstand why he thought it fit to mention the name of thesecond accused-appellant Dixon and omitted to mention thenames of the first (Jayawardana) and third (Suraweera)accused-appellants. If the complainant had prepared adetailed statement with the names of the three accused-appellants, it was really unnecessary for him to make anotherdetailed complaint mentioning only the name of one of theaccused-appellant’s when there had been two others known tohim. One inference that could be drawn from this conductwould be that the prepared statement was not the work of thecomplainant. If the complainant Sarathsena knew clearlywhat was in the prepared statement, another detailedcomplaint mentioning the name of one of the accused-appellant’s was unnecessary. If he decided to do so, then heshould have referred to all three accused-appellants withoutany reservation. Therefore in our view the failure of thecomplainant to mention the names of the Is' and 3rd accused-appellants in the complaint made to the police would showthat the complainant’s evidence lack consistency andtherefore unreliable.
Another matter of importance that was brought to thenotice of Court by Counsel for the accused-appellant relatedto the means of knowledge the complainant Sarathsena hadabout the 1st accused-appellant. According to the evidence of
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Sarathsena on a day prior to the alleged robbery the Is'accused-appellant along with Inspector Ranagala had visitedhis house in search of his son and on that occasion InspectorRanagala had dealt a slap on his face. In order to controvertthis item of evidence, the defence has adduced the evidence ofInspector Ranagala who categorically denied any knowledge ofthe complainant Sarathsena. Inspector Ranagala hadassumed duties at Ragama police station only on 24.01. 1990.He denied that he ever visited Sarathsena's house any dayprior to 28. 12. 1989. This evidence elicited from InspectorRanagala was not assailed or impugned by the prosecution.Thus it is manifestly clear that witness Sarathsena wasdeliberately uttering falsehood when he attributed his meansof knowledge by which he identified the 1st accused-appellantto the alleged incident referred to above. This factor wouldnecessarily cast a serious doubt as to the credibility andtestimonial trustworthiness of this witness.
One other matter that was highlighted in this case was thepresence of a strong motive for the complainant Sarathsena toimplicate the three accused-appellants. It is clear frommaterial contained in the prepared statement of Sarathsenagiven to the police and marked PI at the trial that the threeaccused-appellants were suspected by him for the murder ofhis son. According to the statement PI that the complainant’ssuspicion with regard to the involvement of the three accused-appellants along with some others appears to have been basedon some hearsay material. However when the complainantSarathsena was questioned at the trial, as to whether he hadany animosity towards the three accused-appellants his promptreply was that there was no such animosity. It is difficult forthe Court to accept this answer of Sarathsena as a truthfulanswer in view of the material contained in P1, where it wouldshow very clearly that the complainant had a very strongmotive to implicate the three accused-appellants falsely and inview of the other serious infirmities in the case. Unfortunatelythe learned High Court Judge misdirected herself by believingthe complainant Sarathsena on this matter. Learned Judge in
Jayawardena & Others u. The State (Hector Yapa. J.)
the course of her judgment has stated that no where in theevidence of the complainant Sarathsena, did he state that hehad any animosity towards the accused. This is obviously aserious error on the part the learned High Court Judge in viewof the complainant Sarathsena’s statement marked PI, wherehe says that his son had been attacked and killed by SergeantJayawardena (who is the 1st accused-appellant in this case)with the assistance of the other two accused-appellants.
It would appear therefore, that the learned High CourtJudge has seriously erred in not considering any of theinfirmities in the evidence of the Complainant Sarathsena, theonly eye witness to the case against the three accused-appellants. If the learned trial Judge considered theseinfirmities carefully, there was hardly any convincing materialto base a conviction on such doubtful and shaky evidenceadduced by the complainant Sarathsena. Therefore we setaside the conviction and the sentence imposed on the threeaccused-appellants and acquit them. Appeal is allowed.
KULATELAKA, J. I agree.
JAYAWARDENA & OTHERS v. THE STATE