AJITH FERNANDO ALAIS KONDA AJITH AND OTHERS v. THE ATTORNEY-GENERAL

040-SLLR-SLLR-2004-V-1-AJITH-FERNANDO-ALAIS-KONDA-AJITH-AND-OTHERS-v.-THE-ATTORNEY-GENERAL.pdf


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AJITH FERNANDO ALIAS KONDA AJITH AND OTHERSv
THE ATTORNEY-GENERALSUPREME COURTISMAIL, J.
EDUSSURIYA, J.
YAPA, J.
WIGNESWARAN, J. ANDJAYASINGHE, J.
S.C. APPEAL NO 1/2002H.C. COLOMBO (TRIAL AT BAR)
NO 9760/89
OCTOBER 21 ST AND 31 ST 2003
Criminal Law – Abduction, Gang rape and murder – Penal Code, sections296, 364(2) and 357 – Offences committed in the course of the same trans-action – Abduction and murder in furtherance of the common intention.
Newly married Rita Joan and Mr.Manoharan were staying with her father-in-law in Crow Island. The island was about 60 acres and situated in proximi-ty of the estuary of the Kelani river. On the eastern side was a mangrove jun-gle. With creepers forming a canopy which prevented light reaching the landunderneath. A waterway extending from the river ran through the forest inwhich weeds and water hyacinth grew.
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On 11.10.1998 at about 6.15 p.m. Rita Joan the deceased and Manoharanhad walked towards the estuary of the Kelani river and were returning whenthey were accosted by the three accused whom Manoharan identified at anidentification parade. Despite resistance in the course of which the 2ndaccused bit Manoharan causing an injury which was medically confirmed, thethree accused took Rita Joan by force. Having failed to save his wifeManoharan ran home. The police arrived and with other people meticulouslysearched for Rita until 11.00 p.m. but unsuccessfully. The search continued onthe 12th and 13th but in vain.
On 13.10.98 the 2nd and 3rd accused were arrested. The 1st accused wasarrested on 14.10.98 away from his residence. Jewellery worn by thedeceased were recovered from the 2nd and 3rd accused. All the accused hadinjuries which according to medical evidence could have resulted from havinghad intercourse on the ground.
The statements of the 2nd and 3rd accused were recorded in consequenceof which they were taken to the scene separately. Each showed the placewhere the deceased’s body lay in a stream in the jungle area. According tomedical evidence injuries on the deceased were consistent with.gang rape andanal intercourse and strangulation of the neck with a creeper. The clothes wornby the deceased were found in consequence of a statement of the 1staccused.
HELD:
The failure of the court fo call Lakshman Perera who was on the listof State witnesses did not prejudice the case. He had been given aconditional pardon. But the failure to call him does not raise anyissue of non compliance with section 256 of the Code of CriminalProcedure Act because the Attorney-General could not legally givehim a pardon as he was not an accomplice. In any event the courtexamined his statement and decided that to call him as a witness ofcourt would have been prejudicial to the accused; and left it open tothe defence to call him if necessary.
The trial court did not attach a probative value to the statement ofthe 2nd and 3rd accused which resulted in the discovery of thedeceased’s body. In all the circumstances there was no misdirectionin the matter. Only the accused knew where the deceased’s bodylay.
The objection that common intention had not been proved in regardto the abduction and murder is without justification in view of thestrong prima facie case established which required an explanationfrom the accused.
The conviction of the accused is justified.
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Cases referred to:
Walimunige John v The State – 76 NLR 488 at 496
Chuin Pong Shiek v The Attorney-General – (1999) 2 SRI LR 277 at 285
Pulukuri Kottaya v Emperor – AIR 1947 PC 67 at 70
Richard v The State – 76 NLR 534
Rishideo v The State of Uttar Pradesh -1955 AIR 331 at 335
Commonwealth v Webster – 5 Cush 295
Seetin v The Queen – 68 NLR 316 at 322
Bv Lord Cochrane and others – (1814) Guruey’s Reports 479APPEAL from the order of the High Court Colombo
Dr. Ranjith Fernando for 1st, 2nd and 3rd accused-appellants.
C.R.de Silva, P.C. Solicitor-General with Wasantha Bandara, Senior StateCounsel and Harippriya Jayasundera, State Counsel for Attorney- General.
Cur.adv.vult
January 27, 2004ISMAIL, J.
The accused above named were tried before the High Court at 01Bar by three Judges without a jury on an order made by the ChiefJustice in terms of section 450(2) of the Code of CriminalProcedure Act, No.15 of 1979, as amended by Act, No.21 of 1998.
The following charges were included in the information exhibit-ed by the Attorney General to the High Court.
That on or about the 11th of October 1998, the saidaccused did, at Modera, within the jurisdiction of this HighCourt, abduct Rita Joan Manoharan in order that she may
be forced into illicit intercourse and that they did thereby 10commit an offence punishable under section 357 read withsection 32 of the Penal Code.
At the time and place aforesaid and in the course of thesame transaction that the 1 st accused together with the 2ndand the 3rd accused constituted a gang and whilst being a
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member of such gang, the 1st accused did commit rape onthe said Rita Joan Manoharan or that he did aid and abetthe 2nd and/or 3rd accused to commit rape on the said RitaJoan Manoharan and that he did thereby commit gangrape, an offence punishable under section 364(2) of thePenal Code, as amended by Act, No.22 of 1995.
At the time and place aforesaid and in the course of thesame transaction the 2nd accused together with the 1 st and3rd accused constituted a gang and whilst being a memberof such gang, the 2nd accused did commit rape on the saidRita Joan Manoharan or that he did aid and abet the 1stand/or 3rd accused to commit rape on the said Rita JoanManoharan and that he did thereby commit gang rape, anoffence punishable under section 364(2) of the Penal Code,as amended by Act, No. 22 of 1995.
At the time and place aforesaid and in the course of thesame transaction that the 3rd accused together with the 1stand 2nd accused constituted a gang and whilst being amember of such gang, the 3rd accused did commit rape onthe said Rita Joan Manoharan or that he did aid and abetthe 1st and/or 2nd accused to commit rape on the said RitaJoan Manoharan and that he did thereby commit gangrape, an offence punishable under section 364(2) of thePenal Code, as amended by Act, No. 22 of 1995.
At the time and place aforesaid and in the course of thesame transaction set out in count I above, the said accuseddid cause the death of Rita Joan Manoharan and did there-by commit an offence punishable under 296 read with sec-tion 32 of the Penal Code.
At the time and place aforesaid and in the course of the saidsame transaction the said accused did commit robbery of achain worth Rs.25,000/, a pair of gold bangles worthRs.15,000/- and a ring worth Rs.10.000/-, the property inthe possession of the said Rita Joan Manoharan and thatthey did thereby commit an offence punishable under sec-tion 380 read with section 32 of the Penal Code.
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The deceased Rita Joan, an Indian citizen who was living inBombay married Jude Mohan Sunanthiran Manoharan, a MarineEngineer from Sri Lanka, on 12.9.1998 at St.Michael’s Church,Maniff, India. The couple came to Sri Lanka soon thereafter on
She lived with her husband at the residence of herfather-in-law, a retired Senior Superintendent of Police, at CrowIsland, Modera.
Crow Island was approximately 60 acres in extent extending onthe north to the estuary of the Kelani river. On the eastern side was 60a mangrove jungle about 16 acres in extent. This area had largebushes with an extensive growth of creepers. The creepers provid-ed a canopy covering the surface preventing the fall of sunlight andthus the area was in total darkness. A waterway extending from theriver ran through the parts of the jungle on the eastern side whichwere marshy and covered with an intense growth of weeds andwater hyacinth. A sketch of the area (P12a) was plotted byMr.S.M.W.Fernando, Deputy Surveyor General, based on aerialphotographs previously taken and on data compiled by theSurveyor General’s Department and the sketch ‘P12’ made by 70Chief Inspector Dehideniya in the course of his investigation.
On the evening of 11.10.1998, at about 6.15 p.m. Rita Joan wentwith her husband for a walk towards the estuary of the Kelani river.Having spent about 10 to 15 minutes, there, they were returninghome along a winding road by the river. They ate some grambought from a gram vendor whom they had met on the way back.When they had come about 200 to 300 meters from the estuary,they observed three persons coming towards them from the oppo-site direction. The tallest of them was on one-side. The shortest ofthem was in the centre and the other person who was also tall was soa few steps behind them.
The evidence of the husband of the deceased Jude Manoharanwas that the tallest person had long hair which was tied as a ‘ponytail'. He was dressed in a blue T-shirt with two white stripes on itand was wearing a pair of blue denim trousers. He had not seenthat person prior to that day. he was the 1 st accused. The other per-son who was walking with the 1st accused was dressed in a blackT-shirt and a pair of black shorts. He was the 2nd accused. Thethird person who was behind the 1st and 2nd accused was dressed
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in a light mauve ‘V’ neck T-shirt and was wearing a pair of light bluedenim trousers. He was the 3rd accused. Manoharan identifiedthese three persons as the accused above named at an identifica-tion parade held on 27.10.1998.
As the three accused were passing them, the 3rd accused heldhis wife’s hand and tried to pull her. He managed to drag his wifetowards him and asked the 3rd accused as to what he was doing.The 3rd accused abused him in obscene language and all threeaccused proceeded a distance of about 21/2 yards. All of a suddenthe 3rd accused started running towards them followed by the 1stand 2nd accused. As they came towards them he asked his wife torun away. Before she could run away, the 3rd accused held him byhis T-shirt while the 2nd accused held him by his neck. The 1staccused went behind his wife and grabbed her saying that he wasarmed with a pistol. The 3rd accused kicked him on his abdomenand when he was trying to extricate himself from the clutches of the2nd accused, the white T-shirt that he was wearing came off andhis pair of spectacles fell on the ground. While the 2nd accusedheld the witness by his neck, the 3rd accused came towards him toassault him. He kicked the 3rd accused and dealt a blow towardsthe genitals of the 2nd accused. Both he and the 2nd accused felldown. At that time he had heard his wife shouting out his name andcalling for his assistance. When he and the 2nd accused were fall-en down, the 2nd accused bit him just below the left nipple. Thisresulted in an injury which was later identified by the MedicalOfficer as a bite mark. He dealt a blow on the face of the 2ndaccused. Then the 3rd accused came towards him and attemptedto trample him. At that time too he heard his wife calling out hisname. He did not hear the cries of his wife thereafter. The 2ndaccused had also attempted to strangle him with a silver colouredchain. He shouted out to his wife and there was no response fromher. As he was unable to continue to fight with these persons, hedecided to escape and to run away to seek assistance.
While he was running towards his house he met a neighbour ofhis father named Balakrishnan. He informed him of the incident.Balakrishnan advised him to run to his house and inform his fatherand seek assistance. He then ran home and having informed hisfather as to what had taken place, he returned in the direction of the
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place where the incident had taken place followed by 10 to 15 per-sons from the neighbourhood. A short while later, a team of policeofficers together with some army personnel came towards the 130place where the incident had taken place on motor cycles and injeeps. They began a search for his wife and the three accused. Itwas dark at the time and the area was covered by shrub jungle,creepers and huge trees. That evening all attempts to find his wifewere unsuccessful. The police informed him that they had found hisT-shirt and a pair of slippers that belonged to his wife. The searchfor his wife was given up at about 11p.m. that night.
The following morning too police officers, army personnel andthe neighbours made a search in the jungle and the marshy landfor his wife and the accused but were unsuccessful in locating 140them. He saw the naked body of his wife at about 2 p.m. on
' immersed in the waterway filled with water hyacinthplants, behind the Nara Institure building at Crow Island. Thepolice took the body out of the water and at that time, he observedthat the items of jewellary that she was wearing at the time she wasabducted were missing, except for the pair of ‘gypsy’ ear-rings onher ears.
The evidence of Jude Manoharan was that at the time he wentfor a stroll with his wife towards the estuary of the Kelani river onthe evening of 11.10.1998, he was dressed in a white T-shirt and a 150mauve coloured pair of shorts. He wore a pair of slippers. His wifewas dressed in a bluish pair of denim trousers and a light greenshirt which could be unbuttoned from the front. She was wearing apair of ‘gypsy’ ear-rings and ‘thali’, also known as a ‘mangalasuthra’, which was tied by him on the day of their wedding, a pairof gold bangles, a wedding ring, a diamond ring and a pair of ear-studs which had the shape of a Bo leaf, and a pendant attached tothe ‘thali’, which had the initials K.D.M. and the number 916engraved on it. The pair of bangles had a design depicting the num-ber 8 with a design of flowers at the centre. She was also wearing 160a white coloured Indian brassiere and grey coloured under-wear,purchased in Singapore, with the trade name ‘Marks & Spencer’ onit. At the time the body was recovered, none of the above items ofjewellery and clothing were found on her body, except for the pairof ‘gypsy’ ear-rings.
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Dr.Vidanapathirana, Assistant Judicial Medical Officer, visitedthe Crow Island on 13.10.1998, accompanied by officers of theModera Police and had observed the body of the deceased RitaJoan Manoharan lying in the waterway covered with water hyacinthplants. The body was naked and lay face downwards. The body 170was taken out of the water and taken to the JMO’s Office inColombo, where on the following day, on 14.10.1998, the post-mortem examination was held. The body was identified as beingthat of Rita Joan by her husband Jude Manoharan and his brother.
At the time of the post-mortem examination, the body was found tobe putrefied and the nails along with the skin had peeled off as the •condition known as “glove and stockings” had set in. The followinginjuries on the body of the deceased have been set out in the post-mortem examination report:
Multiple parallel lacerations on the face.180
Multiple parallel lacerations over the left nipple.
Multiple abrasions over the left scapular area, 2” x 2”, involv-ing the dermis with criss-cross patterns.
Multiple parallel abrasions over right scapular area 2” x 1”,involving the dermis.
Multiple criss-cross abrasions over the left buttock area 2” x1” involving the dermis.
Multiple post mortem chlorophyll stains, on the back of thechest, abdomen and buttocks in criss-cross patterns involving onlythe epidermis. These marks were lost when removing the epider- 190mis at autopsy.
Multiple abrasions over the back of the left ankle 2” x 1”involving the dermis
Ligature (creeper) around the neck 39 cm long below the thy-roid cartilage running over the hair on the back side. The knot wason the back of the right side of the neck, one end was 25 cm andthe other end 111cm. The ligature was removed by cutting it a fewc.m. to the right of the knot.
Out of the injuries set out above, the 1st and 2nd injuries werepost-mortem injuries caused by animal bites. The other injuries 200
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were all ante-mortem.
The mark of the ligature was 2 cm in depth, and 1 cm thick andof a length of 25 cm, running horizontal around the neck pairing atthe back of the neck, due to the hair. There was no underlying hem-orrhage of the skin or muscles. There were no laryngeal cartilagefractures. The thyroid gland was putrefied. The carotid arterieswere normal. There were no fractures of the cervical vertebrae.
On an examination of the urinary and sexual area of the body,the Assistant Judicial Medical Officer found that the area was mod-erately putrefied. He found fibrosis of the hymen at the 5 and 2107o'clock positions. There was a contusion on the right labia majoraon the inner aspect 1c.m.x1c.m. There was a vaginal contusion ofthe right side of the posterior wall 1 cm.xl cm, 2 cm above thehymen. The cervix and the uterus were normal. There was contu-sion of the posterior wall of the anus 1 cm x 1 cm and 2 cm abovethe anal verge. Upon a consideration of these injuries, the evidenceof Dr.Vidanapathirana was that in his opinion the deceased hadbeen subjected to intra vaginal and anal intercourse by more per-sons than one.
The cause of death was due to strangulation of the neck by a 220ligature. His considered view was that death had taken place 36 to40 hours prior to the post-mortem examination, between 6 pm and11 pm on 11.10.1998. In fixing the probable time of death he hadtaken into account the presence of partly digested food in the stom-ach identified as gram and had formed the view that death hadtaken place within one hour of its consumption. The post-mortemexamination report was produced at the trial marked ‘P18’.
Dr.Vidanapathirana also examined the three accused. He exam-ined the 1st accused on 14.10.1998 at 1.30 p.m. He has listed 5injuries found on him in the medico-legal report ‘P21’.230
4”x2" multiple linear criss-cross abrasions over the left shin.
4”x2" multiple linear criss-cross abrasions over the rightshin.
1/2"x1/2" contusion on the upper lip.
T’x1" contusion on the right wrist.
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1/2”x1/2” contusion on the left wrist.
He examined the 2nd accused at 12.55 pm on 13.10.1998. Hehad the following injuries as set out in the medico-legal report ‘P20’.
4”x1" multiple linear criss-cross abrasion over the left knee.
2” linear abrasion on the left shin.240
4” linear abrasion on the left shin.
2" linear abrasion on the dorsum of the. left foot.
2”x2” multiple linear abrasions on the right knee.
1/2” linear abrasion over the back of the left hand.
1" linear abrasion on the back of the right hand.
He examined the 3rd accused on 13.10.1998 at 2.30p.m. at theJMO’s office on being produced by the Modera Police. He had fourinjuries as set out in the medico-legal report ‘P19’.
1” linear abrasion over the left knee
2” linear abrasion over the right knee250
1/2”x1/2” contusion over the right shin
1/2”x1/2” contusion over the left wrist.
Dr.Vidanapathirana expressed the opinion that the injuriesfound on the legs of all three accused could have been sustainedwhile lying face downward on a rough surface probably in the actof having sexual intercourse and that such injuries could have beensustained between 6.30p.m. and midnight on 11.10.1998.
In the course of his evidence, Dr.Vidanapathirana produced sev-eral photographs taken by him at the scene and also some pho-tographs taken by an official photographer which were taken during 260the post-mortem examination. ‘P17A’ is a photograph taken by himat the scene before the body was taken out of the stream coveredwith water hyacinth. ‘P17B’ is one which shows the chlorophyllstains on the body of the deceased. Photograph ‘P17C’ shows thepeeling of the skin and the nails described by him as the ‘glove andstocking’ effect. Photograph ‘P17D’ shows the injury in front of theneck caused by the ligature ‘P3’, ‘P17E shows the injury on the
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back of the neck as a result of the ligature. 'P17F shows the injurycaused to the labia majora of the deceased. ‘P17G’ is a photographshowing the injuries on the knee of the 3rd accused. ‘P17G’ is a 270photograph showing the injuries on the knee of the 3rd accused.‘P17H’ shows the injuries with black scabs on the skin of the 1staccused.
Jude Manoharan was examined by Dr. H.P.Wijewardena,Assistant Judicial Medical Officer at about 11.20 am on 13.10.1998.
He had an injury 20 mm x 3mm on the left side of the chest about12cm below the left nipple with redness around the injury. It wasidentified as a bite mark. There were abrasions below the ankle onboth his legs which could have been caused while running throughthe scrub jungle. A photograph showing the bite mark was pro-. 280duced ‘P2C’ at the trial.
Chief Inspector Ranjith Dehideniya received the first informationregarding the abduction of the deceased Rita Joan Manoharan byway of a telephone call at 6.50p.m. on 11.10.1998. He proceededto Crow Island which was about 11/2 miles from the police stationwith a police party and met Jude Manoharan at about7.05 pm. He questioned him at the scene and made inquiries withregard to the place where his wife was abducted and the directionin which she was taken away. He searched the area with the assis-tance of the other police officers and some villagers who had gath- 290ered there. He found a pair of slippers ‘P10’ at the scene which wasthat of the deceased. Although the police dog was given the scentfrom the slippers and from the clothing of the deceased obtainedfrom her residence nearby, the search with the police dog wasunsuccessful. The police, villagers and army personnel continuedto search the area till about 11 p.m. but it was of no avail. Thesearch continued the next day. Although he and others went intojungle in Crow Island they were unable to trace Rita Joan who wasabducted.
Upon the receipt of some information in the early hours of the 300morning on 13.10.1998, he proceeded to St.Andrew’s Lower Road,Modera and took into custody Mahamalage Lakshman Perera onsuspicion. Having questioned him, he along with the police partyproceeded to the railway quarters in Slave Island and arrested
K.Balapuwaduge Basil Mendis, the 2nd accused, at about
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6.00 a.m. at the house of one Sunil. Thereafter he proceeded withthe party to Kohalwila in Dalugama and arrested the 3rd accused,P.Chaminda Kumara Fernando, at about 6.35 a.m. He returned tothe Police Station with the police party and the suspects at about 7a.m. Although they were on the look out for the 1st accused on the 31013th, they were unable to arrest him.
Having recorded the statements of the 2nd and 3rd accusedthey were separately taken to the spot marked ‘X’ in the sketch and .from there each of them pointed out an area marked ‘Y LakshmanPerera who was also taken there did not point to any place. Upona search of the area pointed to by the 2nd and 3rd accused, IPDehideniya discovered the body of the deceased in the water whichwas fully covered with water hyacinth plants at point ‘C’ on thesketch ‘P12A’. The body was recovered at about 12 noon on
The extracts of the statements made by the 2nd and 3203rd accused which led to the discovery of the body were producedat the trial marked ‘P24’ and ‘P25’ respectively under the provi-sions of section 27 of the Evidence Ordinance. The body wasnaked and was dumped face downward in the stream covered withwater hyacinth plants. After the discovery of the body he notified theMagistrate who arrived at the scene at about 4.15 p.m. and afterhe made his observations, the body was taken out of the water andwas taken to the JMO’s office. The pair of ‘gypsy’ earrings on herears was produced marked ‘P16’ at the trial and was identified bythe husband of the deceased. Inspector Dehideniya also produced 330a set of 9 photographs marked ‘PT which was taken by him of thebody with a ligature round her neck at the scene.
SI Udayakumara took the 1st accused-appellant Into custody atHasalaka and produced him at the Modera Police Station at10.30 a.m. on 14.10.1998. He questioned the 1st accused and afterhis statement was recorded, he was taken at about 11 a.m. on14.10.98 in a covered police vehicle to Crow Island. At a placewhich was 10 to 15 yards from where the body was discovered,-herecovered a pair of blue denim trousers, a yellowish blouse and alady’s underwear with the trade name Marks & Spencer underneath 340some leaves near a ‘Kottan’ tree. These items of clothing wereidentified by Jude Manoharan as the items of clothing that wereworn by his wife at the time of the abduction and were produced
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marked ‘P7’, ‘P8’ & ‘P9 An extract of the statement leading to thediscovery of these items was produced marked ‘P27’ by IPUdayakumara. The 1st accused was examined by the JudicialMedical Officer at 1.30 p.m. and produced thereafter at theColombo Magistrate’s Court and was remanded till 27.10.1998.
The wife of the 1st accused handed over a pair of bangles to IPDehideniya at the Police Station on 15.10.1998. It was produced 350marked ‘P15’.
Inspector Chandrathilake, the Officer-in-Charge at the ModeraPolice Station testified at the trial that after the identification paradewas held, having obtained an order from Court, he questioned the2nd accused in the presence of prison officers. On the followingday on 28.10.1998, he searched the house of the 2nd accused sit-uated at 173/46, Modera Street and recovered a gold chain with apendant with the mark K.D.M. and the number 916 engraved on it.
It had been concealed under a plank on the roof of the said house.
He produced the chain marked ‘P15’. It was identified by Jude 360Manoharan as the ‘thali’ which was worn by the deceased at thetime of her abduction.
After the case for the prosecution was closed, an applicationwas made by counsel who appeared for the 1st and 2nd accused-appellants in terms of section 199(4) of the Code of CriminalProcedure Act for the Court to call a witness named in the list of wit-ness in the indictment but not called by the prosecution. The Courthaving examined the statement made by the said witnessLakshman Perera refused the application on the basis that the evi-dence of the witness, if called by Court, would be prejudicial to the 370accused. However, an order was made permitting the accused tocall the said witness as a witness for the defence if they so desired.Lakshman Perera was not called as a witness for the defence.Thereafter, the three accused-appellants made statements fromthe dock denying the charges against them and stated that theyhave been falsely implicated.
At the conclusion of the trial, the 1st accused was found guiltyand was convicted on counts 1,2,5 and 6. The 2nd accused wasfound guilty and convicted on counts 1,3,5 and 6. The 3rd accusedwas found guilty and was convicted on counts 1,4 and 5.380
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The 1st accused was sentenced on count 1, to 12 yrs R.l; oncount 2, to 20 yrs R.l; and on count'6, to 10 yrs R.l. The sentenceswere ordered to run consecutively. The death sentence was passedon Court 5.
The 2nd accused was sentenced on count 1, to 12 Yrs R.l; oncount 3, to 20 Yrs R.I.and on count 6, to 10 Yrs R.l. The sentenceswere ordered to run consecutively. The death sentence was passedon Count 5.
The 3rd accused was sentenced on count 1, to 12 Yrs R.l; andon count 4, to 20 Yrs R.l; The sentences were ordered to run con- 390secutively. The death sentence was passed on Count 5.
This appeal is by all three accused-appellants against the saidconvictions and sentences.
Learned Counsel for the appellants submitted, firstly, that thelearned Judges of the High Court at Bar erred in law by failing todeal with the non-compliance at the trial of the mandatory provi-sions of section 256(2) of the Code of Criminal Procedure Act. Itwas submitted that compliance with this provision is necessary inthe interests of justice and that this section is not meant to servethe interests of a suspect accepting a pardon. The words of the 400section are that every person accepting a pardon shall be exam-ined as a witness and the failure to do so would vitiate the trial andconviction. Mahamalage Lakshman Perera who accepted a condi-tional pardon granted to him by the Attorney-General under section256(1) of the Code of Criminal Procedure Act was not examined asa witness at the trial.
The provisions of section 256 of the Code are as follows:
In the case of any offence triable exclusively by the HighCourt the Magistrate inquiring into the offence may, afterhaving obtained the Attorney-General’s authority so to do, 410or the Attorney-General himself may, with the view ofobtaining the evidence of any person supposed to havebeen directly or indirectlyconcerned in or privy to theoffence under inquiry, tender a pardon to such person oncondition of his making a full and true disclosure of thewhole of the circumstances within his knowledge relative tosuch offence and to every other person concerned whether
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as principal or abettor in the commission thereof.
Every person accepting a tender under this section shall be
examined as a witness in the case.420
Such person if not on bail shall be detained in custody untilthe termination of the trial.
The object of tendering a pardon is to obtain the evidence of anaccomplice, a person supposed to have been directly or indirectlyconcerned in or privy to an offence. “Granting a pardon and exam-ining the evidence of an approver is at best a necessary evil, inview of both the approver’s escape from punishment, and of thenatural suspicion with which any court would look upon the evi-dence in the best circumstances. The secrecy of the crime and thescarcity of clues, sometimes necessitates this course, solely for the 430apprehension of other offenders, the recovery of incriminatingobjects, and production of evidence otherwise unobtainable. Thesecan be safely considered to be the only grounds on which a pardonmay be granted. The object of tendering a pardon is to obtain theevidence of any person supposed to have been directly or indirect-ly concerned in or privy to an offence to which the section applies”-Sohoni on The Code of Criminal Procedure 1973, 18th Edition,Volume IV at page 3192.
The Attorney-General can tender a pardon only to a person sup-posed to have been directly or indirectly concerned in or privy to the 440offence under inquiry with the view of obtaining his evidence to pre-vent the escape of other offenders from punishment in grave casesfor lack of evidence. The considerations which should guide theAttorney-General in granting or withholding of the pardon has beenstated as follows by R.F.Dias in “A Commentary on the CeylonCriminal Procedure Code”, voi. II, pg.727, paragraph 5.
“Before tendering the pardon the Attorney-General shall besatisfied that the accused has in fact committed the crimecharged in conjunction with others, or that he has some activepart towards its commission; in other words he should be sat- 450isfied that the accused is really an accomplice. A mere suspi-cion that he may have committed the offence is insufficient.
The police inquiry notes, the recorded evidence and state-ments of the accused should all be placed before him to
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decide whether or not there is sufficient evidence, apart fromthe testimony which the accused can give, to bring about theconviction of the other accused. If such evidence exists, hewill, as a rule, refuse to tender a pardon … He should consid-er the degree of complicity of the accomplice.”
It would therefore be appropriate to consider whether 460Mahamalage Lakshman Perera could have in the first instancebeen granted a pardon. He was the first person .to have beenarrested on suspicion and was produced before a medical officer.
He did not have any injuries. His statement which was recorded didnot show any complicity on his part in any of the offences. He wasnot identified at the identification parade by the eye witness JudeManoharan. No productions relevant to the case were recoveredconsequent to his statement being recorded. He was taken to thealleged scene of the offence but he, unlike the 2nd and 3rd accusedwas unable to point to any spot that could have helped the police 470in its investigation. A close scrutiny of his statement clearly revealsthat he cannot be regarded as a person who could have beendirectly or indirectly concerned in or privy to the offence underinquiry.
A pardon may not be granted in instances where there is no evi-dence available to connect an accused with the prime. An exami-nation of the statement of Lakshman Perera shows that at best hewas a witness to the abduction of the deceased by the three appel-lants and was certainly not an accomplice. Dias in his Commentaryon the Ceylon Criminal Procedure Code, Vol.ll at Pg.728 observes 480that, “A pardon would be illegally tendered if it is made to a personwho is not an accomplice and who is no way responsible for thecrime alleged." In such a case the evidence of a suspect to whoma pardon has been illegally tendered would neither be admissiblenor could he be dealt with for any breach of the conditions of thepardon.
The unambiguous words in section 256 of the Code of CriminalProcedure Act and the authorities cited above make it abundantlyclear that a pardon may be granted to a person supposed to havebeen directly or indirectly concerned in or privy to the offence; in 490other words, to a guilty associate of a crime, meaning an accom-plice. It may be so granted only in instances where there is no other
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evidence available to connect the accused with the crime. In theinstant case the direct evidence of the husband of the deceasedwas available in regard to the abduction of his wife by the threeaccused. Having regard to the factors which should guide theAttorney-General in granting or withholding a pardon, LakshmanPerera could not, in my view, have been tendered a pardon interms of the provisions of section 256(1) of the Code of CriminalProcedure Act. The pardon so granted has, in the circumstances, 500been wrongly granted by the Attorney-General.
Counsel for the appellants submitted, however, that even if thepardon has been wrongly granted, section 256(2) mandates thatthe person accepting the pardon should be examined as a witness.
He submitted that the Judges erred in law in refusing the applica-tion made by the defence for Lakshman Perera, who was a witnesslisted in the indictment, to be called as a witness of Court in termsof provisions of section 199(4) of the Code of Criminal ProcedureAct.
The Court having considered the said application made by the 510defence at the trial and having perused the statement of LakshmanPerera took the view that it would have been prejudicial to theaccused if he was called as a witness of Court and left it open tothe defence to call him as their witness. The refusal of the applica-tion by the defence to call Lakshman Perera as a witness of Courtin terms of section 199(4) of the Code of Criminal Procedure Acthad not occasioned a miscarriage of justice. He was not a witnesswhose evidence was necessary to unfold the narrative and no pre-sumption adverse to the prosecution case could be drawn by itsfailure to call Lakshman Perera. As G.P.A.Silva, S.P.J. observed in 520Walimunige John v The Stated).
“The question of a presumption arises only where a witnesswhose evidence is necessary to unfold the narrative is with-held by the prosecution, and the failure to call such witnessconstitutes a vital missing link in the prosecution case, andwhere the reasonable inference to be drawn from the omissionto call the witness is that he would, if called, not have sup-ported the prosecution. But where one witness’ evidence iscumulative of the other and would be a mere repetition of the
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narrative, it would be wrong to direct a jury that the failure to 530call such witness gives rise to a presumption under section114(f) of the Evidence Ordinance."
The next submission of Counsel was that the Judges erred inlaw by attaching a probative value to the discovery of the body con-sequent to statements made by the 2nd and 3rd accused as theywere inadmissible under section 27 of the Evidence Ordinance andthat such information was not the cause of the discovery. In anyevent, it was submitted, that even if such statements were admis-sible, the Judges have erred in attributing to the accused more than“the knowledge of the whereabouts" of the body. Counsel submit- 540ted that in terms of section 27 of the Evidence Ordinance, the infor-mation must be such as has caused the discovery of a fact. Thisfollows from the words “thereby discovered”; the fact must there-fore be the consequence and the information the cause for the dis-covery. The connection must be that of cause and effect.
The evidence of IP Dehideniya was that the 2nd and 3rdaccused separately pointed towards an area which was marked “Y”on the sketch and that the body of the deceased was recoveredfrom the point “C” in the canal and that this point was near this area.Learned Counsel submitted that as the spot from which the body 550was recovered was not within the area “Y”, that the relevant state-ments could not have been the cause for the discovery.
The extensive search for the body by the police, army person-nel and the villagers on the night of the 11th and the 12th was notsuccessful. However, after their statements were recorded, the 2ndand 3rd accused were taken to the vicinity of the mangrove swampand both accused separately pointed to the area marked “Y". Thebody was recovered form a point in front of the area “Y” in thesketch. Shortly thereafter and in consequence of such informationthe body which was initially not visible as it lay in the water covered 560with a thick growth of water hyacinth was recovered. The medicalevidence that there were chlorophyll stains on the body confirmsthis fact. In the circumstances, the submission that the body couldhave been discovered consequent to information from othersources including Lakshman Perera cannot be accepted.Considering that the area pointed to by the accused was marshy
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and in their words ‘muddy’ and a ‘muddy hole’, the exact locationwhere the body lay could not have been pointed to, even by them,with pin-point accuracy. I am of the view that the prosecution hasestablished that the recovery of the body was the consequence and 570that the information from the 2nd and 3rd accused was the causefor such recovery. The requirement of the nexus has been fulfilledand thus the prosecution has established that the two accused whopointed to the area marked ‘Y’ had knowledge of the place wherethe body could be found.
In this connection, the learned Solicitor General has appropri-ately referred to the observations made by Fernando, J. when heconsidered this principle in Chuin Pong Shiek v The AttorneyGeneral,(2). In this case it was sought to be argued that the discov-ery of six screws in the pocket of the jacket was improperly admit- 5soted contrary to section 27 of the Evidence Ordinance because thatpart of the petitioner’s statement did not refer to the contents of thebag. Fernando, J. observed as follows:
“The Court of Appeal rejected that submission, and I wouldventure to summarize its reasoning as follows. The bag wasthe ‘factj discovered; it was deposed to as having been dis-covered in consequence of the petitioner’s statement; somuch of that statement as related distinctly to the bag – the‘fact’ discovered – could therefore be proved. The ‘fact’ dis-covered was the bag including its contents. Accordingly as 590held in R v Krishnapillai and Etin Singho v The Queen, thepetitioner’s statement established that he had knowledge ofthe place at which was found the bag containing the jacket andthe screws. The petitioner failed to explain how he hadacquired that knowledge. In my view, no question of law aris-es in relation to the interpretation or application of section27(1).”
Learned Counsel for the appellant submitted while dealing withthe evidence regarding the discovery of the body, that the judges oft^e High Court at Bar erred in law in attributing more than the 600knowledge of its whereabouts. He referred in particular to the find-ing that the accused were present during the disposal of the bodyand that they were aware of her death. In this connection the obser-
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vations of the Privy Council in Puiukuri Kottaya v Emperor, (3) hasan important bearing. It was held that “it is fallacious to treat the‘fact discovered’ within the section as equivalent to the object pro-duced. The ‘fact discovered’ embraces the place from which theobject is produced and the knowledge of the accused as to this,and the information given must relate distinctly to this fact”. Thefinding of the High Court at Bar was not unreasonable considering 610the other items of evidence led in this regard. The information pro-vided by the 2nd and 3rd accused which led to the discovery of thebody confirmed their knowledge of the whereabouts of the bodywhich was not clearly visible and was foun.d submerged in watercovered with a thick growth of water hyacinth. The three accusedwere identified by the husband as the only persons who forciblytook the deceased away shortly prior to her death. The finding ofthe Judges arrived at on the basis of the cumulative effect of theentirety of the evidence besides the evidence relating to the dis-covery of the body is not unreasonable and is justified. The sub- 620missions of counsel in regard to the discovery of the body cannottherefore be accepted. •
The next ground of appeal, in regard to the conviction for mur-der, was that the available evidence did not support an irresistibleinference that all three accused entertained a common murderousintention at the time of committing the offence. Counsel for theappellants submitted that the original plan of the accused wasabduction apparently for the purpose only of illicit sexual inter-course; that there was no evidence of sharing of a common inten-tion; that there was no prior preparation as the creeper used as a 630ligature was readily available at the scene and that the medical evi-dence did not point to the use of force in its application or theinvolvement of more than one individual to effect the strangulation.Counsel also drew attention to the evidence that all the items ofjewellery worn by the deceased at the time of the abduction wererecovered only from the 2nd and 3rd accused. They did notabscond, although it was only the 1st accused who was absentfrom his usual place of residence and was arrested the day afterthe other two accused were taken into custody.
On the other hand, it was submitted by the Solicitor General that 640the following items of evidence have to be taken into account in this
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regard. The deceased was forcibly abducted with the active partic-ipation of all three accused after assaulting her husband. She wasraising cries at that time. Shortly thereafter police and army officerstogether with the villagers were making a search of the area withthe aid of lights. If the deceased had raised cries or was permittedto escape there was a strong likelihood of her abductors beingidentified and arrested. In the circumstances, realising the predica-ment they were in, silencing her effectively and killing her wouldpresumably have been the only means for all the accused to 650escape detection. There was reliable evidence of the abduction .which has not been challenged and of the identity of the threeaccused had been established. The failure of the accused to offeran explanation was a factor that the judges could reasonably havetaken into consideration in arriving at their finding in regard to acommon murderous intention. It was held in Richard v The Stated4)that the cumulative effect of all the items of circumstantial evidenceagainst one‘of the appellants was sufficient, in the absence of evi-dence to explain his presence at the scene, to establish that heacted in furtherance of a common murderous intention with the 660other accused to kill the deceased.
The question whether a particular set of circumstances establishthat the accused acted in furtherance of a common intention is aquestion of fact and if the view of the trial Court cannot be said tobe unreasonable, it is not the function of an appellate court to inter-fere. In Rishideo v State of Uttar Pradesh,'(5) the Supreme Court ofIndia has expressed this principle as follows:
“After all the existence of a common intention said to havebeen shared by the accused person is, on an ultimate analy-sis, a question of fact. We are not of opinion that the inference 670of fact drawn by the Sessions Judge appearing from the factsand circumstances appearing on the record of this case andwhich was accepted by the High Court was improper or thatthese facts and circumstances were capable of an innocentexplanation.”
In this instance it was essential that the accused should haveeither given or offered evidence to explain their conduct subse-quent to the abduction of the deceased. Their failure to do so did
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attract a presumption adverse to them. I am therefore of the viewthat the finding of the judges that the accused were actuated by acommon murderous intention is justified and cannot be said to beunreasonable.
While urging further that the judges of the High Court at Barerred in law by attributing guilt on the basis that the accused failedto offer any explanation in regard to the prima facie evidence ledagainst them, it was contended that the burden did lie on the pros-ecution to prove its case beyond reasonable doubt, independent ofany explanation required to be offered by the -accused. The ruleregarding circumstantial evidence and its effect, if not explained bythe accused, has been stated by Chief Justice Shaw in theAmerican Case of Commonwealth v Websteffl in the followingwords which have been referred to in Seetin v The Queeti7).
“Where probable proof is brought of a statement of facts tend-ing to criminate the accused, the absence of evidence tendingto a contrary conclusion is to be considered though not aloneentitled to much weight, because the burden of proof lies onthe accuser to make out the whole case by substanfive evi-dence. But when pretty stringent proof of circumstances isproduced tending to support the charge, and it is apparent thatthe accused is so situated that he could offer evidence of allthe facts and circumstances as they exist, and show, if suchwas ihe truth, that the suspicious circumstances can beaccounted for consistently with his innocence and he fails tooffer such proof, the natural conclusion is that the proof, if pro-duced, instead of rebutting, would tend to sustain the charge.”
E.R.S.R. Coomaraswamy on the Law of Evidence, Vol.1 at page21 has observed in this regard as follows:
“The recent tendency of the Supreme Court of Sri Lanka alsoappears to be to expect an explanation of telling circum-stances, though the failure that is commented on is the failureof the accused to offer evidence and not to give evidence him-self. A party’s failure to explain damning facts cannot convertinsufficient into prima facie evidence, but it may cause primafacie evidence to become presumptive. Whether prima facieevidence will be converted into presumptive evidence by the
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absence of an explanation depends on the strength of the evi-dence and the operation of such rules as that requiring a spe-cially high standard of proof on a criminal charge."
The items of evidence relied upon by the prosecution were asfollows:720
The three accused were identified as the only persons whoabducted the deceased at about 6.30. pm on 11th October‘98. This aspect of the prosecution case has not been dis-puted.
The death had occurred within one hour, close to the placeof the abduction.
The medical evidence is that the deceased had been sub-jected to vaginal and anal intercourse by more persons thanone after the abduction.
The injuries found on the knees and shin of each of the 730<accused and the opinion of the medical evidence sugges-tive of the circumstances in which they could have beensustained.
The body of the deceased was found submerged in watercovered with an extensive growth of water hyacinth andwas discovered only upon the information provided sepa-rately by the 2nd and 3rd accused. This attributed knowl-edge to them of the place where the body of the deceasedwhom they had abducted could be found.
The clothes worn by the deceased were found hidden in the 740mangrove swamp and were discovered upon informationprovided by the 1st accused.
The 1st and 2nd accused had access to the jewellery wornby the deceased at the time of her abduction.
The cumulative effect of the aforesaid items of evidence wasthat a strong prima facie case had been made out in regard to theculpability of the accused, in relation to the offences of abduction,rape and murder having been committed in the course of the sametransaction. The place from where the body was recovered and theplace at which the items of clothing worn by the deceased lay hid- 750
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den were within the knowledge of the accused. The accused hadbeen in possession of the jewellery worn by the deceased at thetime of her abduction. The failure of the accused to give or offer evi-dence in respect of these matters justify the application of the fol-lowing dictum of Lord Ellenborough in R v Lord Cochrane and oth-ers,^).
“No person accused of crime is bound to offer any explanationof his conduct or of circumstances of suspicion which attach tohim; but, nevertheless, if he refuses to do. so, where a strongprima; facie case has been made out, and when it is in his own 760power to offer evidence, if such exist, in explanation of suchsuspicious circumstances which would show them to be falla-cious and explicable consistently with his innocence, it is a rea-sonable and justifiable conclusion that he refrains from doing soonly from he conviction that the evidence so suppressed or notadduced would operate adversely to his interest.”
However, learned counsel for the appellants contended that thedictum of Lord Ellenborough has been misapplied in this casewhich involved more than one offence. Learned Solicitor Generalsubmitted in reply that the several offences in the indictment were. 770committed in the course of the same transaction and that the dic-tum which is not a principle of evidence but a rule of logic appliesonly when the prosecution has established a strong prima faciecase against the accused. I am of the view that there is no rationalbasis for a selective application of the dictum and it is to be notedthat it has been applied previously in cases where the accusedhave been convicted of more offences than one.
For the reasons set out above, the appellants cannot succeedon the grounds of appeal relied upon by them. The conviction ofeach of the accused-appellants is therefore affirmed.780
At the outset counsel for the appellants submitted correctly thatthe sentence of imprisonment imposed on all the accused on count1 of the indictment exceeded the maximum term of imprisonmentspecified in section 357 of the Penal Code.
The sentence of imprisonment imposed on all three accusedappellants in respect of Count 1 of the indictment is therefore setaside. In lieu thereof, I impose a sentence of 10 years R.l. on each
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of the accused-appellants on count 1 of the indictment.
Subject to the variation in regard to the sentence only on count1 as above, the sentences imposed on each of the accused-appel- 790lants are affirmed. Considering the heinous nature of the offencescommitted by the accused-appellants, the order that the sentencesof imprisonment should run consecutively is affirmed.
Subject to the above, the appeals of the 1st, 2nd and 3rdaccused-appellant are dismissed.
EDUSSURIYA, J.YAPA, J.
WIGNESWARAN, J.JAYASINGHE, J.
I agree.I agree.I agree.I agree.
Appeal dismissed;sentences on count one varied.