Apsara Jayasena described what was meant by this phrase

vide page 531 Vol. 11. She said

that it is an external manifestation of the intention of the 1st accused-appellant. In her evidence Apsara Jayasena said that the 1 st accused- 640appellant addressed Chamara Jayasena as “Tunkama Chandiya”.Rasika Wijetunga as “Moraketiya Weeraya” Ruwan Ratnaweera as“Kunfu-Karaya”.
It is pertinent now to refer to section 10 of the Evidence Ordinancewhich reads as follows:
The learned Deputy Solicitor-General contended
Dayananda Lokugalappaththi and eight others v The State
(The Embilipitiya Abduction and Murder Case) (Kulatilaka, J.)
“Where there is reasonable ground to believe that two ormore persons have conspired together to commit an offenceor an actionable wrong, anything said, done, or written byany one such persons in reference to their common inten-tion, after the time when such intention was first entertainedby anyone of them is a relevant fact as against each of thepersons believed to be so conspiring, as well for the purposeof proving the existence of the conspiracy as for the purposeof showing that any such person was a party to if.
For the application of section 10 what is required is specified in thefollowing phrase, “where there is reasonable ground to believe”. Wehave carefully considered the above utterances made by the 1staccused-appellant which indicates the 1st accused-appellant’s com-plicity with the army in executing these abductions which in fact tookplace soon afterwards. We have already referred to the manner inwhich these students were abducted by the army personnel attachedto Sevena Camp secretively, concealing their identity using force whichclearly manifests that they were knowingly executing an illegal exer-cise.
The 1st accused-appellant had totally denied such utterancesmade to Kalugampitiya but the learned trial judge who had the benefitof seeing the demeanour and deportment of the 1st accused-appel-lant as well as witness Sujatha Kalugampitiya, accepted SujathaKalugampitiya’s evidence that the 1st accused-appellant made suchutterances and rejected the bold denial by the 1st accused-appellant.The learned trial Judge was satisfied with the testimonial trustworthi-ness of witness Apsara Jayasena.
The learned Deputy Solicitor-General when addressing us on theevidence relating to conspiracy submitted that this court should con-sider the evidence relating to the 1st accused-appellant’s conduct aswell when some of the students were abducted and it was brought tohis notice. He referred to the case of Manelka de Silva. Manelka deSilva was abducted on 1 December 1989 in broad day light while hewas playing cricket. Shortly afterwards Manelka’s brother DilanNiroshan de Silva who had witnessed the abduction and recognisedthe abductors had gone to the Principal’s house (1st accused-appel-lant) along with his mother and father and had informed him of theabduction. According to Dilan Niroshan de Silva when this complaintwas made, school teacher Jayatissa too was there. Jayatissa for some
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reason was a reluctant witness who kept silent on this identity of theabductors except the fact that he saw two persons going away withManelka de Silva. In fact the army camp according to the evidence inthe case was just 200 yards away from the school premises and thereis ample evidence to show at that point of time army officers were seenfrequenting the school premises, the Principal's quarters as well. One 690of the witnesses Amarapala in giving evidence before the learned trialJudge has stated that on one occasion he heard the army officersaddressing the 1st accused-appellant as “uncle”. On this occasion the1st accused-appellant did not. take any steps either to go to the campto ascertain what happened to Manelka or any other meaningful step.Manelka was a student of his school. It is significant to note that thereis no evidence whatsoever to indicate that when all these abductionsof students from Embilipitiya Madya Maha Vidyalaya were takingplace the Principal brought this to the notice of his Superiors in theEducation Department or the Minister of Education, the Prime Minister 700or the President. This is something unbelievable.
According to Tilaka Piyaseeli Wijekoon when she met the 1staccused-appellant to bring to his notice the abduction of her son NalinKumara Gunaratne the 1st accused-appellant made an utterance tothe following effect: “Children may be burnt on the roads dead bodiesmay float in the rivers. Nalin will not fall into those categories. Don’t bescared of Nalin”. Hence the inference one could draw from this utter-ance is that the 1st accused-appellant apparently had even foreseenwhat would happen to the abductees.
The 1st accused-appellant’s guilty behaviour comes to light by the 710evidence of Soma Munasinghe an independent witness who was incharge of the Grade 11 A class at the time these abductions had takenplace. According to her document marked P1 was a temporary regis-ter prepared by her on the basis of the previous years register markedP2. Her evidence was that in P1 the temporary register she has pre-pared for that year she had the names of the following students in thefollowing order: No. 10 in the register marked P1 was the nameRukman Paranavitana.
No. 5 was Ruwan Ratnaweera.
No. 20 was Rasika Kumara Wijetunga.720
No. 15 was Chamara Jayasena.
No. 12 was Manelka de Silva.
Soma Munasinghe’s evidence was a vital item of evidence for the
Dayananda Lokugalappaththi and eight others v The State
(The Embilipitiya Abduction and Murder Case) (Kulatilaka, J.)
prosecution. By then these students had been abducted. The 1staccused had directed Soma Munasinghe before two months of con-tinuous absence from school was over to delete their names whenpreparing the new register. This teacher an independent witness cate-gorically stated that in order to delete the name of a student from theschool register at least a period of two months of continuous absencehas to be there. This vital item of evidence clearly shows that the 1staccused-appellant was very much aware that the abducted studentswill never come back to school. In fact they never returned and wentmissing forever.
In this regard an item of corroborative evidence comes from witnessSirinawathie, mother of Ruwan Ratnaweera that when she complainedto the 1st accused-appellant about her son’s abduction he had told herthat there are five boisterous students in the Grade 11 class and thathe would eradicate the cancer.
Evidence of utterances made by the 1 st accused-appellant, the 2ndaccused-appellant, 5th accused-appellant had been placed before thetrial Court by the prosecution to establish the complicity the 1staccused-appellant had with the army personnel to carry out the planthe 1st accused-appellant had in his mind. These utterances wereadmissible evidence in terms of section 10 of the Evidence Ordinance.In our view these statements thus become part of the res gestae.
We have already referred to the statements made by the 1staccused-appellant to Sujatha Kalugampitiya about a plan he had dis-cussed with Kodikara and Mahesh Danasuriya. According to SujathaKalugampitiya she had seen the 2nd accused-appellant on a numberof occasions after her son was abducted to get her son released. Onone occasion the 2nd accused-appellant had said “Rasika was anaughty boy. We will make him a good boy and send him back in fiveyears time.” Thereafter her evidence was when she met him again atMount Lavinia Army Camp he had told her not to look for her son any-more because he is not amongst the living.
Leelawathie testified before Court in giving evidence relating to theabduction of Susil Kumara, that she met the 2nd accused-appellant atthe Camp regarding the abduction of her son Susil Kumara. Then the2nd accused-appellant had made an utterance to the following effectthat the Principal (1st accused-appellant) had given him a list and hewill take into custody all the students referred to in that list. In fact wehave already referred to similar utterances made by the 1st accused-
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appellant to Sujatha Kalugampitiya. There is also evidence of RosalinWickremasinghe, that when she went to see the 1st accused-appel-lant about the abduction of her son along with Kamala Kottegodawhose son Wasantha Ariyadarshana too had been abducted the 1 staccused-appellant was alleged to have made the following telephonecall: “Hellow Mr. Senaratne did you go anywhere last night? Did youfind the stuff? Did you take the stuff to the beef stall? Did you bringMahindapala. I will come to the camp in the evening”. Thereafter the 7701st accused-appellant assured her that her son will be released aftertwo or three days time. Very correctly the learned trial Judge has cometo the inference that when the 1st accused-appellant addressed oneMr.Senaratne in his telephone call he was speaking to the 5thaccused-appellant whose name is Y.A.Senaratne.
Subsequently the 1st accused-appellant had told RosalinWickremasinghe that he went to the camp and that Mahindapala wasbrought before him and an army officer said “Your teacher has come.
Tell him what you have done.” The 1st accused-appellant told Rosalinthat her son was involved in three murders, attacked the Army Camp 780and had collected identity cards.
Leelawathie mother of abductee Rukman Paranavitana saw the 1staccused-appellant regarding the abduction of her son. The 1staccused-appellant had given a letter through the 2nd accused-appellantto be given to the 3rd accused at the trial (acquitted by the learned trialJudge) and when she went to meet the 2nd accused-appellant alongwith the letter given by the 1st accused-appellant she found the 1staccused-appellant in the company of the 2nd accused-appellant.
Apart from that we have already referred to the evidence of Niroshande Silva regarding the abduction of his brother Manelka de Silva and 790also Upul Janaka Perera a person who was abducted and releasedlater relating to the involvement of the 4th accused-appellant and the5th accused-appellant in the abduction of Manelka de Silva. Whenthese items of evidence are taken together the cumulative effect of ■these circumstances proved by the prosecution would be that an irre-sistible conclusion could be arrived at that these accused-appellantswere the perpetrators of the conspiracy to execute the abductions of thestudents referred to in the charges levelled against them.
Question would arise whether the accused-appellants were falselyimplicated in the charges levelled against them by the prosecution wit- 800
Dayananda Lokugalappaththi and eight others v The State
(The Embilipitiya Abduction and Murder Case) (Kulatilaka, J.)
nesses. In fact the counsel for the accused-appellants made submis-sions to that effect.
In the case of Palitha Alfred his mother Ran Menika had seen threepersons entering her house. But she identified only the 5th accused-appellant out of the nine accused who were in the dock because herposition was that she knew him before. In the case of the abduction ofPrabath Kumara it was from Garusinghe Arachchilage Sirisena’s housein his presence that Prabath Kumara was taken by the abductors. Butat the trial he did not identify any of the abductors.
In the case of the abduction of Palitha Lakshman Ranasinghe his 810mother Dayawathie Ranasinghe testified that when her son wasabducted on 7.12.89 a number of persons entered her house but sheidentified only the 5th accused-appellant as one of the abductors. Shealso spoke of an incident on 20.12.89 when they heard the voice of herabducted son, apparently the son was not shown to them as they weremade to lie on the floor, face downwards. On that occasion of the per-sons who came she identified not only the 5th accused-appellant butalso the 3rd accused-appellant. If she wanted to falsely implicate the 3rdaccused-appellant as one of the abductors who came on 17.12.89 toabduct her son she could well have done so. Rasika Wijetunga’s moth- 820er Sujatha Kalugampitiya when pointing out the abductors who tookaway her son on 06.11.89 she identified only the 3rd accused-appellantas one of the abductors. On the following day when she went to theArmy Camp she met the 2nd accused-appellant who had in fact givenher the assurance that her son would be handed back to her. Had shewanted to falsely implicate him as one of the abductors, she could havedone so.
There are instances even though charges of abduction had beenpreferred against the accused there was no evidence before courtrelating to the identity of the abductors. Therefore our conclusion on this 830matter is there is no evidence before trial court for the learned trialJudge to come to a conclusion that the accused-appellants were false-ly implicated and that there was some hidden hand behind it.
One of the main objections taken by all Counsel who appeared forthe accused-appellants was that the evidence of identification adducedbefore the learned trial Judge was evidence of dock identification andthat the trial Judge should not have relied upon such evidence of iden-tification, in view of the dangers involved in such means of identificationspecially because such evidence can “bring about miscarriage of jus-
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tice." Vide Regina v Turnbull^ at 228 and therefore worthless. Vide 8doGunaratne Banda v The Republic (11).
If the witness did not know the accused earlier and in the absenceof an identification parade the identification in court becomes a “firsttime” identification in court or a dock identification. Vide E.R.S.R.Coomawaswamy’s The Law of Evidence Vol.1 page 256.
Most of the witnesses whose evidence was led relating to the abduc-tions complained of to the trial court about the lackadaisical attitude ofthe Embilipitiya Police. This can be understood because it is apparentfrom their very conduct as deposed to by witnesses that the police didnot want to investigate into these complaints of abductions against the 850officers of the army detachment stationed at Sevana Army Camp andthe Government of the day too was under pressure because of theSouthern insurrection.
In some cases the local Police refused to take down the complaints.
In some cases even if they took down the complaints they have distort-ed the complainant’s version or omitted to record the vital matters. Infact Sujatha Kalugampitiya, Principal of Moraketiya Maha Vidyalayacomplained of how the Embilipitiya Police refused to record the com-plaint in regard to the abduction of her son Rasika Wijetunga. UpulJanaka Perera testified that consequent upon a radio announcement 860inviting parents whose children had been abducted to make a complaintto the police, he went to the Embilipitiya Police to make a complaintabout the abduction of his brother. He was turned away by the Policetelling him that if the abductee was inside the Army Camp there was noneed to make a complaint. The same complaint comes from the mouthsof almost all the witnesses who testified to the abduction of their childrenwhich is a special feature in the case which the learned trial Judgeshould necessarily take into consideration in terms of Section 3 of theEvidence Ordinance. Vide the observations made by H.N.G. Fernando,
C.J. in L Edrick de Silva v Chandradasa t12) at 174.870
It is observed that the learned trial Judge while considering the con-tradictions and omissions has referred to the "no action" attitude of thelocal police and the partisan approach of some of the CID officers as. deposed to by the prosecution witnesses, reluctance of some of the par-ents to implicate the army officers through fear. In the course of pro-tracted cross-examination of Sujatha Kalugampitiya, she was askedwhy she did not mention to the police about the request made by the1st accused-appellant to give a list of names of trouble makers among
Dayananda Lokugalappaihthi and eight others v The State
(The Embilipitiya Abduction and Murder Case) (Kulatilaka, J.)
the students and the fact that the 1 st accused-appellant was seen witha pistol and a bomb at his office. She described to the trial court the pre-vailing situation in Embilipitiya at that time. The local police did not evenrecord the complaint of her son's abduction. We have already referredto the evidence of Upul Janaka Perera in this regard.
The learned trial Judge has accepted the explanations given foromissions by witnesses and also the delay in making complaints. In theattendant circumstances of this case the test of Spontaneity andContemporaneity cannot be applied. Hence, quite, rightly it appears thatthe learned trial Judge has applied the test of Probability andImprobability in the evaluation of the evidence in the case. In the atten-dant circumstances of the case, we hold the view that it was the cor-rect test. In The Queen v. Pauline de Croos <13) Justice T.S Fernandoobserved that delayed evidence can be acted upon if there was reasonto explain the delay.
It is to be observed that at the relevant period when these abductionswere taking place law enforcement in Embilipitiya was at a stand stillbecause of the prevailing situation. As we have already referred toabove Upul Janaka Perera in his evidence disclosed that when he wentto the Embilipitiya police in response to a radio announcement invitingthe parents to make complaints to the local police if their children hadbeen abducted the police turned him away saying that since theabductee is in the Sevena Camp it is not necessary to make a com-plaint. Weeragedara Sumanawathie, the mother of Peduru Hewa Nihalcame out with a similar story. In these circumstances we are of the viewthat the appellants are not entitled to complain that no identificationparades were held. The principle being "Nemo allegans suam turpi-tudinem non audiendus est'. No one ought to be heard when he assertshis own turpitude.
The learned Senior Counsel who appeared for the aggrieved partiessubmitted that the evidence relating to the identification of an accusedperson would fall into one of the following categories: firstly, where a wit-ness has the prior knowledge of the accused as well as his name.Secondly, where the witness has the prior knowledge of the accusedbut not his name. Thirdly, where the witness sees the accused within areasonable time after the incident but before the trial. Finally, where thewitness does not have the prior knowledge of the accused and see himfor the first time at the dock after seeing him at the crime scene. Thisidentification is. commonly referred to as "dock identification". The
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learned Senior Counsel submitted that according to the evidence led inthe case the identification evidence would fall into one of the first threecategories. He cited the case of Niroshan de Silva's evidence relating to 920the identification of the 4th accused-appellant and the 5th accused-appellant. He had seen the two accused-appellants and had come toknow their names prior to seeing him at the crime scene, namely theabduction of his brother Manelka de Silva.
It must be observed that the law relating to identification as it standstoday does not shut out evidence of dock identification. Albeit, decidedcases emphasize the need for caution before convicting an accused onthe basis of such identification. The learned trial Judge must examineclosely the circumstances under which the identification by the witnesscame to be made. For example, for how long did witness have the 930accused under observation; at what distance, in what light, was theobservation impeded in any way, had he any special reason for remem-bering the accused. All these matters would go to the quality of identifi-cation. vide the judgment of Lord Widgery, C.J. in Rex vTurnbull.(supra) In examining the evidence relating to the means ofknowledge the witnesses had of the abductors at the time of abductionwe are well possessed of the guidelines laid down in Turnbull.
At this juncture it is pertinent to look into the merits of another groundadverted to by the learned Counsel appearing for the 1st, 3rd, 5th, 6thand 7th accused-appellants. The ground he urged is that all the abduc- 940tion charges were preferred on the basis of common intention undersection 32 of the Penal Code. He submitted that there is no indicationin the judgment that the learned trial Judge was even alive to the prin-ciples relating to common intention. His contention is that the AppellateCourt cannot look into the evidence sitting in appeal in order to ascer-tain whether there is evidence of common intention. It must be notedthat the judgments cited in support by the learned counsel were relatingto jury trials. Albeit, even in appeals from the jury verdict the AppellateJudges have themselves carefully considered the evidence led at thetrial and given their minds to the issue whether had the jury being prop- 950erly directed would have brought the same verdict. In King vAppuhamy<14) which was a case where the trial Judge has not empha-sized to the jury that under section 32 of. the Penal Code to support acharge of murder the common intention must itself be a "murderousintention" within the meaning of section 294. In this JudgmentKeuneman, SPJ arrived at the following conclusion:
Dayananda Lokugalappaththi and eight others v The State
CA (The Embilipitiya Abduction and Murder Case) (Kulatilaka, J.)391
“We have carefully ^considered the evidence and come to theconclusion that, had the jury been correctly instructed, theywould at least have found in this case that all these accusedwere actuated by a common intention, to cause grievous 960hurt”.
We do not think there is any constraint in the Appellate Courts perus-ing, examining and considering the evidence in a case tried by a HighCourt Judge without a jury. In this regard the learned Deputy Solicitor-General referred us to the provisions of section 334 which deals withdetermination of appeals in cases where trial was by jury and section335 which deals with determination of appeals in cases where the trialwas without a jury. Our function is to examine the evidence in the casein order to satisfy ourselves with the assistance of Counsel that there isevidence upon which the trial Judge should have reached a verdict 970which he came to and that there has not been any misdirection or nondirection. In this case as is evident from our judgment we have verycarefully sorted out all the evidence relating to the abduction chargespreferred against each of the accused-appellants in order to seewhether the prosecution has established circumstantially inculpatoryfacts against the accused-appellants which are incompatible with theinnocence of the accused-appellants and incapable of an explanationor any other reasonable hypothesis than of their guilt.
With regard to the submission that the learned trial Judge shouldhave set forth the principles of common intention, circumstantial evi- gsodence etc., the learned Deputy Solicitor-General referred us to the pro-visions relating to jury trials set out in the Code of Criminal ProcedureAct. In a jury case an accused is tried by his own Peers. The jurors are •ordinary laymen. In order to perform their duties specified in the section232 of the said Act, at the commencement of the trial the learned trialJudge has to inform them of their duties. At that stage he may also directthem briefly on presumption of innocence, the burden of proof and otherprinciples of law as may be relevant to the case. Vide section 217 of theAct. In the mandatory provisions of Section 229 of the Act when thecase for the prosecution and defence are concluded the learned trial 990Judge should charge the jury, sum up the evidence and lay down thelaw by which the jury are to be guided. Hence in appeal the Judges willlook into the charge to the jury-to see whether these provisions of lawhave been complied with and whether the jurors were properly directedby the trial Judge.
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In a trial by a Judge of the High Court without a jury it is significantthat there are no such provisions similar to section 217 of the Act, forexample to set forth the basic principles of criminal law, i.e. the pre-sumption of innocence, the burden of proof etc.
We do not see any requirement similar to section 229 that he should 1000lay down the law which he is to be guided. The reason being that thelaw takes for granted that a Judge with a trained legal mind is well pos-sessed of the principles of law, he would apply. In appeal the AppellateJudges will consider whether in fact the learned trial Judge was aliveand mindful of the relevant principles of law and has applied them inarriving at his conclusion. We have very carefully perused and consid-ered the trial Judge’s judgment pertaining to the above aspect andcome to the conclusion that there is hardly any merit in the submissionadvanced by the learned counsel.
Of the accused-appellants the 3rd accused-appellant, 4th accused- 1010appellant, 5th accused-appellant and the 6th accused-appellant in theirdock statements have taken up a defence of alibi, for the period speci-fied in the indictment within which the abductions had taken place. Theabduction of students in respect of whom verdict of guilty was enteredat the trial by the learned trial Judge took place on the following dates:Palitha Alfred and Sanath Priyantha were abducted on 3 August 1989;Sanath Chaminda Wijekone was abducted on 16 October 1989; JagathChaminda Kumar Dissanayake was abducted on 19 October 1989;Rasika Kumara Wijetunga was abducted on 6 November 1989;Chamara Jayasena and N.A. Jayatilaka were abducted on 11 1020November 1989. Susil Kumara was abducted on 12th November 1989;Ruwan Ratriaweera was abducted on 16 November 1989. DamikkaKumara Baragamaaratchi, Prabath Kumara and Pradeep KumaraWijesinghe were abducted on 17 November; Peduru Hewa Nihal wasabducted on 20 November 1989; Rukman Paranavitana and Manelkade Silva were abducted on 1 December 1989; Palitha LakshmanRanasinghe Guruge on 17 December 1989; Nalin Kumara Gunaratnewas abducted on 26 December 1989 and MahindapalaWickremasinghe was abducted on 4 January 1990.
Evidence in support of an alibi means evidence tending to show 1030that by reason of the presence of the defendant at a particular place orin a particular area at a particular time, he was not, or was unlikely tohave been, at the place where the offence is alleged to have beencommitted at the time of the alleged commission. Vide Rv. Hassan .
Dayananda Lokugalappaththi and eight others v The State
(The Embilipitiya Abduction and Murder Case) (Kulatilaka, J.)
A plea of alibi is provided for in terms of section 11 of the EvidenceOrdinance which makes any fact which is inconsistent with a fact inissue or a relevant fact also relevant. What is meant by the term “incon-sistency” is the physical impossibility of co-existence of two facts. VideIllustration A to section 11 of the Evidence Ordinance.
The alibi taken up by the 3rd accused-appellant covers a period 1040from 30.10.89 to 08.12.90. His position was that he was at theDiyatalawa camp during that period following a junior officers course.
In support of his alibi the following documents were produced marked5V4, 5V5, 5V6, 5V11,5V7, 5V9, and 5V9 (a). The alibi taken up by the4th accused-appellant covers a period from 28.11.89 to 04.01.90. Hisposition was that he was at the Panagoda camp during that period.
The alibi taken up by the 5th accused-appellant covers two periods;firstly, 01.10.89 to 20.10.89 during which time he was following acourse at Panagoda. After that 30.10.89 to 14.11.89 he followed arepeat course at Panagoda camp. In support of his alibi produced the 1050documents marked 7V 33(2), 7V 38, 7V 34(2), 7V 35, 7V 32(6), 7V 32(7), 7V 32(8), 7V 32(9), 7V 33(3), 7V 34(3), 7V 40, 7V 39, 7V 41 (2) (a),
7V 32(a). The 6th accused-appellant’s alibi covers a period from
to 14.08.89. His position was he was at the Panagoda campduring that time. Further he has taken up the position that from 3rdOctober to 13th October he was on leave for his mother’sfuneral.
The learned Deputy Solicitor-General submitted that there was noallegation of abduction against the 6th accused-appellant except inone case for the latter period he had taken leave for his mother’s funer-1060al. That was the case of Dayananda Ekanayake's abduction. Thelearned trial Judge disbelieved the witness and acquitted the accusedof that charge. The fact that there were no allegations of abduction dur-ing this period against the 6th accused-appellant would speak to thebona tides of the prosecution version of. the abductions. He was fol-lowing a repeating course from-30.10.89 to 14.11.89. The register relat-ing to leave had been elicited from Lt. Tennakoon produced marked 7V34(3) and 7V41,7V 41(1).
In respect of an alibi what is expected of the defence is merely tocreate a doubt in the mind of the Judge. If the alibi is accepted or even 1070if it is not accepted yet there is a doubt created in the Judge’s mind theprosecution should fail.
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The learned Deputy Solicitor-General submitted that in this casewhat the accused-appellants had put forward was a general alibi andthere was no positive evidence before the learned trial Judge to theeffect that the accused-appellants were elsewhere at the time theoffence was committed so as to exclude his presence at the place ofthe offence or the crime scene. Vide Wills, Circumstantial Evidence 7thEdition page 289. ■
The documentary evidence led on behalf of the accused-appellants 1080relates to movement orders which show only movement from oneplace to another. It would merely show that he would have been thereat the place mentioned in the movement order. It should be borne inmind that the defence of an alibi should be established by unsuspect-ed testimony. The learned Counsel for the State submitted to Courtthat there is no such testimony of an alibi in respect of each of theaccused placed before the trial Judge.
The learned Deputy Solicitor-General referring to the cross-exami-nation of each prosecution witness relating to each count by thedefence Counsel submitted that none of them have been cross-exam-1090ined on the basis of an alibi.Credibility of an alibi is greatly enhanced ifit be set up at the time when the accusation is first made and is con-sistently maintained thereafter and if such a defence is taken up belat-edly the weight of the defence is weakened.
The learned Deputy Solicitor-General brought to the notice of Courtthat in the Habeas Corpus applications filed against some of theseaccused-appellants alibi defence was not taken up. Anyway, he sub-mitted that since similar format had been used in the affidavit of therespondents to the Habeas Corpus applications, he is reluctant to takeup that infirmity.noo
Anyway on record fact remains that at the first opportunity theaccused-appellants have not taken up such defence to exculpatethemselves from liability. Even in the dock statements no explanationshave been given by the accused-appellants why that alibi defence wasnot taken up in the Habeas Corpus application.
Apart from the documents relating to movement orders there is nosupporting evidence to make out a case of alibi defence. In the case ofthe 3rd accused-appellant evidence of Major Manoj Perera was calledon his behalf. In the course of his evidence he took up the position that
Dayananda Lokugalappaththi and eight others v The State
lThe Embilioitiva Abduction and Murder Case) (Kulatilaka. J.)
he did not have an independent recollection whether this accused- moappellant was physically present attending the course. Witness was aCourse Commander. At one stage he told Court that he was in charge■of a parallel course where the accused was not a participant. Whereas,later on he shifted his original position and took up the position that midway he came to be in charge of the course which this accused-appeklant was supposed to be following. This shifting of positions taken upby this witness was observed by the learned trial Judge when consid-ering the witness's demeanour and deportment at the time of givingevidence. Hence the learned trial Judge has disbelieved his evidence.
• On a perusal of the judgment we find that the learned trial judge has 1120considered the defence evidence of alibi and weighed it in the balancewith the prosecution evidence and has rejected it. In these circum-stances, we do not see any reason to interfere with that conclusion thelearned trial Judge arrived at in rejecting the alibi defence taken up bythe above mentioned accused-appellants at the closure of the prose-cution case, in their dock statements.
The 1st accused-appellant has given evidence on oath. His testi-mony in effect was a denial of liability to the two conspiracy counts pre-ferred against him. In his evidence he has attempted to distance him-self from the army with whom, according to the prosecution witnesses 1130he had conspired to abduct their children. The 1st accused-appellantoffered two reasons as to why he was implicated in the conspiracy.Firstly, his refusal to accede to the request of Sujatha Kalugampitiya tocarry out a protest campaign against the abduction of Rasika Kumaraand secondly, his refusal to accede to the request made by the parentsof the missing children to be the Chairman of their Association. Thesepositions were not put to the prosecution witnesses in cross-examina-tion. The learned trial Judge who had the advantage of observing thedemeanour and the deportment of the witnesses did not accept him asa credible witness. We in our judgment have upheld the convictions 1140against him where we were of the view that the prosecution has provedits case beyond reasonable doubt and we have set aside the convic-tions and acquitted him where the convictions were not supported byevidence.
The 2nd accused-appellant made a dock statement when calledupon for his defence. According to him he was one of the staff officersassigned to the Co-ordinating Officer. He was stationed at theMahaweli Circuit. His work involved the office administration and
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assisting the Co-ordinating Officer in carrying out the essential servicesin the area. He did not have any powers to arrest persons. In his dock nsostatement he spoke of the JVP activities prevalent in Embilipitiya dur-ing that time. His statement in effect was a bold denial of liability where- ■as, the prosecution has established incriminating circumstancesagainst him which called for an explanation from him.
A submission was adverted to by the learned President’s Counselwho appeared for the 4th accused-appellant that in most of the abduc-tions the prosecution has relied upon the evidence of a sole eye wit-ness to the incident without any corroborative evidence, even thoughthere had been others present who were alleged to have witnessed theincident.• ■1160
There is no such requirement in law of evidence. The provisions ofSection 134 of the Evidence Ordinance postulates that evidenceshould be evaluated and weighted and not counted. That section setsout that no particular number of witnesses are required for proof of anyfact. This principle has been applied by the Indian Supreme Courtwhere the conviction rested solely on the evidence of a solitary witnesswho gave circumstantial evidence in regard to the accused’s liability.
. Vide Mulluwa v. State of Madhya Pradesfi16>. The Privy Councilupheld the conviction. This principle has been adopted with approvaland applied in the judgment of Justice G.P.A. de Silva in Walimunige moJohnv. Stated'17'* at 495. The principle applied is that testimony must beweighed and not counted. If the trial Judge was satisfied with the tes-timonial trust worthiness of a witness even though he is the sole wit-ness relied upon by the prosecution to establish the incident thelearned trial Judge could act upon such evidence.
We have already dealt with the evidence of Soma MunasingheGrade 11A class teacher at the relevant time in dealing with the con-spiracy charges. She has testified that the 1st accused-appellant whowas the Principal had instructed her to delete five names contained inthe temporary register marked P1 prepared by her, when preparing a nsopermanent register sometime later. Those five names were
Rasika Kumara Wijetunga
Manelka de Silva
Rukman Paranavitana
Ruwan Ratnaweera
Chamara Jayasena
Dayananda Lokugalappaththi and eight others v The State
(The Embilipitiya Abduction and Murder Case) (Kulatilaka, J.)
In dealing with these abductions we are very much conscious of theplan the 1st accused-appellant had to get rid of the trouble makersamong the students as deposed to by Sujatha Kalugampitiya, hisintention of getting rid of five “boisterous students” in 11A class who 1190were a cancer as deposed to by witness Sirinawathie de Silva anddeath threats he had made to the students of Grade 11A as deposedto by Apsara Jayasena. We are also possessed of the utterance madeto Don Leelawathie mother of abductees Susil Kumara and SusanthaKumara by the 2nd accused-appellant that he had a list given by the1st accused-appellant and that he would abduct all the students whoare in the list.
Rasika Kumara Wijetunga had been abducted on 6.11.89. In thecourse of his mother, Sujatha Kalugampitiya’s evidence she spoke ofthe following matters:1200
the presence of army personnel in the Principal’s office, schoolpremises and his residence carrying weapons.
the student unrest in schools, especially at Embilipitiya MadyaMaha Vidyalaya.
that on one occasion while the Principal was passing the Grade11 A class after a meeting with the parents he was hooted andjeered at by the students.
her seeing a pistol covered with a white handkerchief and anobject which she thought to be a hand grenade on the Principal’stable. Apparently Apsara Jayasena and a teacher Jayatissa had 1210also spoken of seeing weapons with the 1st accused-appellant.
Disclosure by the 1st accused-appellant to SujathaKalugampitiya about a plan he had in mind to get rid of the trqu-ble makers with the assistance of the army secretively.
The 1st accused-appellant was under the impression thatRasika Wijetunge was one of the students responsible for cre-ating a rival group against the love affair with thelst accused-appellant’s son (2nd accused at the trial) supposed to have hadwith Pavitra Ranmali, a girl studying in Grade 11 A.
In addition to the above facts this witness being a Principal herself 1220had placed a vivid picture of how her son Rasika Wijetunga wasabducted on 6.11.89. She identified the 3rd accused-appellant as heentered the house for the reason that his face was quite familiar to her
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and when he held her son she gazed at his face for quite sometime. Itwas at a short distance she saw him when she pleaded with him notto take the son away. The 3rd accused-appellant had told her that hewould return Rasika in half an hour’s time. Though she switched off thelights at the behest of the abductors the lamp hung at the Buddha stat-ue, and her deceased husband’s picture still kept on burning. Theabove matters have to be taken into account in deciding the quality of 1230identification.
In this case this witness is not an ordinary woman. She was thePrincipal of a school at the time. Her evidence is that she had seen the3rd accused-appellant at the camp few days after the incident as well.Therefore Sujatha Kalugampitiya’s means of knowledge of the 3rdaccused-appellant has been established by the prosecution at the trial.
The learned counsel who appeared for the 1st, 3rd, 5th and 6thaccused-appellants relying upon the Test of Spontaineity andContemporaneity contended that the statement made by this witnessto the CID was made after a lapse of a period of nearly three years and 1240as such the trial Judge should not have relied upon her evidence. Infact the same contention was raised in respect of the other witnesseswho spoke of the abduction of their children as well.
This aspect was considered by Justice Ninian Jayasuriya inMadawala Samarakoon Mudalige Ajith Devapriya Samarakoon v TheRepublic I18) where the same point was raised regarding the evidenceof the sole eye witness to the killing of Mananlage Malini alias Nilanthi.
In this case eye witness Chulasiri made the first statement to the policeafter a lapse of one and a half years from the date of the crime. Thelearned Judge observed thus: “just because the statement of a witness 1250is belated the Court is not entitled to reject such testimony”. In apply-ing the Test of Spontaineity and Test of Contemporaneity and the Testof Promptness the Court ought to scrupulously proceed to examine thereasons for the delay. If the reasons for the delay adduced by the wit-ness are justifiable and probable the trial Judge is entitled to act on theevidence of a witness who had made a “belated statement.” In theinstant case the learned trial Judge has taken into consideration thereasons elicited from the prosecution witnesses as to the belatednessof their statements and also the background of events at the time. It isto be observed that no contradiction or omission has been marked in 1260her statement to the CID on this point. The learned trial Judge has
Dayananda Lokugalappaththi and eight others v The State
(The Embilipitiya Abduction and Murder Case) (Kulatilaka, J.)
accepted her as a truthful witness. Therefore we do not see any rea-son to interfere with the finding of guilt arrived at by the learned trialJudge against the 3rd accused-appellant.
Soon after the incident the witness Sujatha Kalugampitiya had metthe 2nd accused-appellant who had assured her that her son RasikaWijetunga was in the camp. According to her he had taken 50%responsibility for the safety of Rasika Wijetunga. He had promisedSujatha Kalugampitiya that he would give Rasika back to her in about5 years time after making him a “good boy”. She had kept faith and 1270trust on this officer’s assurance. She had seen him several times afterher son’s abduction and she had not filed a Habeas Corpus applica-tion because she thought by doing so the lives of her other children toowould be in danger. Finally, when she met the 2nd accused-appellantat Mount Lavinia Army Camp in January he had told her that RasikaWijetunga is no more among the living and it is pointless looking forhim.
The learned President’s Counsel for the 2nd accused-appellantcontended that the alleged utterances by the 2nd accused-appellanthave been made after Rasika Kumara Wijetunge was abducted. 1280Therefore' the learned trial Judge could not have acted upon that evi-dence. Through Sujatha Kalugampitiya the prosecution has estab-lished that the 2nd accused-appellant was well aware of the abductionof her son when she met the 2nd accused-appellant soon after theabduction. He had given the impression to Sujatha Kalugampitiya thathe would give back her son after correcting him. It is on this assurancethat Sujatha Kalugampitiya had seen the 2nd accused-appellant on anumber of occasions, until he had intimated to her that her son was nolonger among the living. It must be borne in mind that there was over-whelming evidence against this accused-appellant in respect of a num- 1290ber of other abductions as well. In the circumstances we are unable toaccept the submissions made by the learned President’s Counsel onbehalf of the 2nd accused-appellant.
The learned trial Judge has rightly rejected the defence of alibitaken up by the 3rd accused-appellant and the dock statement madeby the 2nd accused-appellant. He had disbelieved the denial by the 1 staccused-appellant of having conspired with the army to get rid of thestudents.
• In the circumstances we affirm the conviction of the 3rd accused-appellant for abduction on counts 5 and 30 and the conviction of the 1300
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1st accused-appellant and the 2nd accused-appellant for conspiracyunder counts 2 and 4 and the sentences imposed on them.
Ruwan Ratnaweera who was a student of Grade 11A was abduct-ed on 16 November 1989 around 11 p.m. The abductors had comeposing as police officers. Four persons had come into the house.According to Sirinawathie, mother of Ruwan Ratnaweera she switchedoff the lights when ordered to do so by the abductors. However, thelamp hung at the Buddha statue kept burning. This witness had givena vivid description of the physical harassment she and the rest of her -family was made to undergo. She described in detail each and every 1310act done by the 4th accused-appellant and the 2nd accused-appellant.
She recounted the utterance made by the abductors which was to thefollowing effect: “bitch give us the son that you bore”. The ordeal sheherself had to undergo, her husband, two sons, daughter and the son-in-law had to undergo until the intruders went away taking with themthe son-in-law Sirisena Wickremaaratchi, had been elicited by theprosecuting counsel. They abducted Ruwan Ratnaweera who was atthe time sleeping in the house of a friend, as deposed to byWickremaaratchi. The evidence of identification spoken to by this wit-ness was not that of a “fleeting glance” referred to in Rex v Turnbull 1320(supra). She had sufficient time and opportunity to identify the personswho had made her and the members of her family to suffer suchordeal, namely, holding them and dragging them, assaulting them,putting them on the floor, throttling Sirinawathie’s neck, trampling theson’s neck, threatening to kill him if Sirinawathie did not reveal thewhereabouts of Ruwan Ratnaweera.
Sirinawathie further testified that sometime after the abduction ofher son she went to see Sujatha Kalugampititya to her house. Thereshe had seen the 2nd accused-appellant and told SujathaKalugampitiya that he was the person who took away her son. The 1330learned President’s Counsel who appeared for the accused-appellantcontended that the prosecution should have clarified this position fromSujatha Kalugampitiya. Anyway in his dock statement the 2ndaccused-appellant stated to Court that he had visited Kalugampitiya'shouse on a number of times. The learned trial Judge has believed thiswitness Sirinawathie. This item of evidence would strengthen the posi-tion taken up by Sirinawathie that she did identify the abductors at thetime they came into her house.
Dayananda Lokugalappaththi and eight others v The State
(The Embilipitiva Abduction and Murder Case) (Kuiatiiaka, J.)
No Habeas Corpus application has been filed relating to the abduc-tion of Ruwan Ratnaweera. The learned Deputy Solicitor-General in 1340this regard submitted to Court that at that point of time the grievancewas against the authorities for holding their children illegally, whilesome parents were still under the belief that their children were stillalive and would be released some day. Some of the parents were stillin fear to institute any action against the army personnel. Hence con-sidering the background of events we do not hold the failure of someparents to file Habeas Corpus applications should have any adverseeffect on the creditworthiness of their evidence. The learned Judge hasrightly rejected the defence of alibi and their dock statements. We donot see any reason to interfere with the-findings of guilt arrived at 1350against the 2nd and 4th accused-appellants by the learned trial Judge.
Sirinawathie de Silva recounted that her son prior to the abductiontold her about an utterance made by the Principal to wit: "you .will betaken by the army but I will save you. Don’t tell your mother.” In thetotality of evidence led in relation to this abduction we affirm the con-victions of the 2nd accused-appellaht, and the 4th accused-appellanton counts 7 and 32 and the conviction of the 1 st accused-appellant,
2nd accused-appellant and the 4th accused-appellant on conspiracycharges and also the sentences imposed on them. We acquit the 3rdaccused-appellant and the 5th accused-appellant-appellant on the 1360conspiracy charges.
Regard to the abduction of Manelka de Silva on 01.12.89 convinc-ing and cogent evidence has been elicited through his brotherNiroshan de Silva, 13 years of age at the time. He has testified how hisbrother while playing cricket, was taken away by the 4th accused-appellant and the 5th accused-appellant. They were no strangers tohim for the reason that he had seen them coming to his house on aprevious occasion and taking away his brother Manelka de Silva. Evenprior to that this witness had seen the two accused-appellant playingcricket with the school children in the school playground. On the first 1370occasion Niroshan de Silva got to know the names of the two personsfrom his father, that was on 6.11.89. The learned President’s Counselappearing for the 4th accused-appellant citing R. v Olivia(19)> and
Walimurtige John v State (supra) contended that the prosecutionshould have called Niroshan de Silva’s father to corroborate Niroshan’stestimony on this point. It is to be noted that in the latter case G.P.A.
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[2003] 3 Sri L.R
Silva, S.P.J. Wijayatilake, J. and Pathirana, J. agreeing confirmed theprinciple laid down in K. v Chalo Singho (20> that the prosecution is notbound to call all the witnesses on the back of the indictment or tenderthem for cross-examination. We are of the view that the failure to call 1380Niroshan de Silva’s father as a witness does not in any way affect theveracity of Niroshan de Silva’s evidence on this point. The learned trialJudge has been satisfied with the creditworthiness of this witness. Wereiterate here the principle enunciated in Mulluwa v State of MadhyaPradesh {supra) that testimony must be weighed and not counted. On
Niroshan had seen his brother being brought back in a vandriven by the 5th accused-appellant. He saw the 1 st accused-appellantalso in the van, Regarding this item of evidence there is corroborativeevidence coming from an independent source Upul Janaka Perera,who had seen the 1st accused-appellant seated on a sofa along with 1390the 4h accused-appellant and the 5th accused-appellant at the Sevanacamp. Upul Janaka Perera also testified as to how he and Manelkawere released by the 4th accused-appellant at the behest of the 1staccused-appellant. Adducing evidence regarding the abduction ofManelka de Silva, Niroshan de Silva spoke of how RukmanParanavithana went up to them and queried why they were takingaway Manelka, and how the two accused-appellants warned him thatthe same fate would befall on him that very night. Evidence revealedthat the.4th and 5th accused-appellants in fact carried out that threatgiven to Rukman Paranavithana.1400
The learned President’s Counsel who appeared for the 4thaccused-appellant submitted that the learned trial Judge should nothave relied on this witness Niroshan de Silva for the reason that he didnot make a complaint either to the local police or the CID. Havingalready lost one child it is quite natural that the parents through fear oflosing this child as well did not want to expose him to any danger. Butwhen Habeas Corpus application was filed against the 4th and 5thaccused-appellants Niroshan de Silva had made a statement to thelearned Magistrate. We are aware of the evidence of retired SupremeCourt Judge Mr. J.F.A. Soza, that even at the inquiry about the miss- 1410ing persons some witnesses were still reluctant and scared to give evi-dence against the army or police personnel. Defence of alibi taken upby the two accused-appellants was rightly rejected by the learned trialJudge.
Dayananda Lokugalappaththi and eight others v The State
CA (The Embilipitiya Abduction and Murder Case) (Ku'latilaka, J.)
The learned trial Judge has accepted the testimonial trustworthi-ness and creditworthiness of this witness Niroshan de Silva and hasacted upon his evidence in convicting the 4th and 5th accused-appel-lants for the abduction of Manetka de Silva on counts 27 and 52. Wesee no reason to interfere with his finding. We affirm the conviction ofthe 1st accused-appellant, 4th accused-appellant and 5th accused-1420appellant on the conspiracy charges as well. We proceed to acquit the2nd accused-appellant and the 3rd accused-appellant on counts 2 and4 relating to the abduction of Manelka de Silva.
Evidence relating to the abduction of Rukman Paranavithana on
was adduced by his mother Leela Gamage. The abductorshad come to her house around 11.30 p.m. and ordered the inmates toopen the door saying that they were from the police. Anyway LeelaGamage has testified that she did not open the door because she wasaware of the incident that had taken place in the afternoon. She in factwas referring to the utterances made by the 4th accused-appellant and 1430the 5th accused-appellant to Rukman Paranavithana when he queriedfrom them as to why they were taking away Manelka de Silva. Thatpoint of time they had given him the warning that the same fate wouldfall on him as well that night. This evidence was elicited from Niroshande Silva. When the inmates did not open the door they broke open thedoor and entered the house. According to her it was the 4th accused-appellant who broke open the door. When Leela Gamage highly excit-ed gazed at the intruders one of them said “ e®2§Oesi ae^
^sfenD:”. She had a torch light with her. She saw the 4h accused-appel-lant and the 5th accused-appellant armed with pistols. She had seen 1440them earlier at the Principal’s office and also while they were playingwith the school children.
At the trial this witness has identified the 4th and 5th accused-appellants. In respect of these two accused-appellants the prosecutionwas able to establish the means of knowledge because she had seenthem before. |n addition, she identified the 2nd and 3rd accused-appel-lants as the other persons who came in. This witness also spoke ofgoing to the Sevana camp along with a letter given by the 1 st accused-appellant addressed to the 3rd accused (at the trial) to be giventhrough the 2nd accused-appellant. When she went to the camp she 1450had seen 1st accused-appellant along with the 2nd accused-appellant.
In a shortwhile later she saw the. 1st accused-appellant coming out
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holding the hand of the 2nd accused-appellant. The latter after open-ing the letter said “son is not there anymore”. That was on 01.01.90.According to her at the time of abduction the 3rd accused-appellantwas wearing a turban. Her evidence in respect of the 3rd accused-appellant seems to be only visual identification at the time the offencewas committed. In the Habeas Corpus application the 2nd, the 4th andthe 5th accused-appellants had been made respondents. We affirmthe conviction of the 4th accused-appellant, the 5th accused-appellant, 1460the 2nd accused-appellant for abduction charge counts 11 and 36. Wealso affirm the convictions of the 1 st accused-appellant, 2nd accused-appellant, 4th accused-appellant and the 5th accused-appellant forconspiracy charges. We acquit the 3rd accused-appellant of thecharges relating to the conspiracy and abduction charges namelycounts 2, 4, 11 and 36 for the reason that the evidence availableagainst him is insufficient to allow the conviction to stand.
Evidence relating to the abduction of Susil Kumara comes from hismother Don Leelawathie. This boy was abducted on 12.11.89 at 5 a.m.When there was a knock at the door ordering them to open it they were u70reluctant to open the door. She had switched on the lights of the sittingroom. Then the abductors had broke open the door, come in andasked for Susil Kumara. She had observed the presence of about 8persons. Of the abductors she identified the 4th accused-appellant andthe 5th accused-appellant. Her means of knowledge was that she hadseen both of them before. Later on at the trial she identified the 2ndaccused-appellant also as one of the persons who had come to abducther son.
As regard the implication of the 4th accused-appellant the learnedPresident’s Counsel strongly urged that Don Leelawathie’s evidence usorelating to the identification of the 4th accused-appellant should berejected, for the reason that in the Habeas Corpus application No.415/92 filed by her husband Y.U.K. Munidasa the 4th accused-appel-lant was not a respondent. He rightly pointed out that Don Leelawathiespeaks of the presence of her husband when the abductors came insearch of Susil Kumara. Therefore the learned Counsel submitted thata reasonable doubt arises as to whether Don Leelawathie did in factidentify the 4th accused-appellant being present among the abductors.
We uphold the submission of the learned President’s Counsel andacquit the 4th accused-appellant of the charge of abduction in counts 149013 and 38. Don Leelawathie had met the 2nd accused-appellant at the
Dayananda Lokugalappaththi and eight others v The State
(The Embilipitiya Abduction and Murder Case) (Kulatilaka, J.)
Sevana Camp and pleaded with the 2nd accused-appellant to release herson. That point of time the 2nd accused-appellant had demanded her to sur-render the elder son Susantha in which case he would release Susil Kumara,the younger son who was just 16 years of age. The 2nd accused-appellanthad told her that he had a list given to him by the 1 st accused-appellant andthat he would abduct all the students who were in that list. Later she hadcome to know that the elder son Susantha too had been abducted. Then sherushed to the 2nd accused-appellant and pleaded with him to release theyounger child'Susil Kumara because her elder son was then in custody. The 1500reaction of the 2nd accused-appellant was as follows: “you did not give theelder son when I asked for him now both are with us". He refused, to accedeto her plea. Susantha Kumara had been abducted from the aunfs house.
Aunt Rosalin Premaratne was unable to identify the abductors. The 1staccused-appellant in his evidence did not refute the utterances alleged tohave been made by the 2nd accused-appellant to the effect that the 1staccused-appellant had given a list of names of the students to be abducted.
There is corroborative evidence coming from witness Lionel, father ofPrabath Kumara, who spoke of seeing this child and Dhammika KumaraBaragamaaratchi at his door step along with the person who abducted his 1510son Prabath Kumar on 17.11.89. In fact Lionel’s evidence was that theabductors had come in a van with students already abducted. Lionel speaksof the presence of the 5th accused-appellant among the abductors.Therefore we see that there is strong evidence before court for the learnedtrial Judge to convict the 2nd and the 5th accused-appellants for the abduc-tion of Susil Kumara. There is no reason for us to interfere with the finding ofguilt entered by the learned trial Judge in respect of the 2nd and 5th accused-appellants.
We affirm the convictions of the 1st accused-appellant and the 2ndaccused-appellant on counts 2 and 4. There is no sufficient evidence to impli-1520cate the 4th accused-appellant in the abduction. Hence we proceed to acquithim of counts 13 and 38.
Rosalin Premaratne from whose house Susantha Kumara was abduct-ed did not identify any of the abductors. Learned Deputy Solicitor-Generalquite rightly did not support the convictions of the 1 st accused-appellant andthe 2nd accused-appellant on counts 2 and 4 relating to that abduction. Weacquit them on those counts.
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It is significant that the abduction of Dammika KumaraBaragamaaratchi, Pradeep Kumar Wijesinghe and Prabath Kumarahad taken place on the same day 17 November 1989.1530
Evidence relating to the abduction of Pradeep Kumara Wijesinghecame from his grandmother Korale Jayasinghege Hamine and AnuraGonawala. Pradeep Kumara Wijesinghe was a student of UdagamaMaha Vidyalaya. He was abducted on 17.11.89 in the night. Accordingto her on that day Pradeep was sleeping in a friend’s house. Around1.00 o’clock in the night she heard a voice from outside ordering theinmates to open the door saying that they were from the police.Reluctantly when she opened the door three people had entered thehouse. She did not know one person. She knew the other two and sheidentified the 5th accused-appellant and the 6th accused-appellant. 1540The fact that she knew them at that point of time was not impugned incross-examination. When Hamine opened the door according to AnuraGonawala, she had a lamp with her and Anura Gonawala said that oneof the intruders flashed a torch. Anura Gonawala was a friend of herother son Weeraratne.
That night Anura Gonawala and another friend Ajith were sleepingat Hamine’s house. They asked for the whereabouts of her grandsonPradeep Wijesinghe. Hamine spoke of the 6th accused-appellantassaulting her son Weeraratne with a club. Thereafter the intruders leftthe house taking Anura Gonawala along with them. Anura Gonawala 1550corroborated the evidence of Hamine regarding the fact that three peo-ple entered Hamine’s house getting her to open the door on the pre-text that they were from the Police.
Anura Gonawala spoke of how he was put into a white colouredvan in which there were a number of other persons. He was asked tosit down inside the van. Thereafter they went to the house ofDayananda where Pradeep was sleeping that night and brought himalso to the van. He also noted some persons wearing camouflagedresses. Pradeep too was assaulted. Anura Gonawala testified to thepresence of the 6th accused-appellant. He had seen the-6th accused-1560appellant before at the Sevana camp. The learned trial Judge has eval-uated the evidence of Hamine and Gonawala relating to the identity ofthe persons who came in search of Pradeep Kumara Wijesinghe thatnight. They were the 5th and 6th accused-appellants. In fact the pres-ence of these two accused-appellans in that white coloured van in
Dayananda Lokugalappaththi and eight others v The State
(The Embilipitiya Abduction and Murder Case) (Kulatilaka, J.)^
which there were a number of persons already abducted was elicitedfrom Prabath Kumara’s father Lionel when he gave evidence relatingto the abduction of Prabath Kumara. In fact Lionel in his evidencespoke of seeing Anura Gonawala inside the van. Therefore we are ofthe view that the learned.trial Judge has come to a correct finding on 1570the facts when he arrived at the conclusion that the 5th and 6thaccused-appellants were guilty of the abduction of Pradeep KumaraWijesinghe. The learned Deputy Solicitor-General submitted during thecourse of his submissions that there had been a Habeas Corpus appli-cation in respect of Pradeep Kumara Wijesinghe in which both theseaccused-appellants had been made respondents.
We affirm the conviction of the 5th and 6th accused-appellants oncounts 26 and 51.
Dammika Kumara Baragamaaratchi was a student of UdagamaMaha Vidyalaya and was 15 years and 11. months of age at the time of 1580abduction. He was abducted on the same day on which PradeepKumara Wijesinghe and Prabath Kumara were abducted, namely17.11.89. That day there had been some dispute between the students -of Udagama Maha Vidyalaya and Uda Walawe Maha Vidyalaya at acricket match. Evidence in this case comes from his motherAbeywickrema Kankanamalage Menik Hamy. Around 11.45 p.m. in thenight some people had spoken to the inmates from outside orderingthem to open the door saying that they were from the police. At thattime Dammika Kumara Baragamaaratchi’s brother and Manik Hamy’ssister’s son and her husband were present in the house. When the 1590door was opened two persons entered the house. One was in a com-mando suit and was carrying a gun. She had seen the army officersbefore at the camp. She had seen them carrying weapons as well. Shesaid this person was carrying a T56 gun. They asked for her sonDammika Kumara. She described in detail how her husband was han-dled by the intruders when he cried aloud. She identified the 5thaccused-appellant as one of the intruders. He was wearing a tee-shirtover his trouser. She also identified the 6th accused-appellant. Shehad seen both of them at the camp before. Thereafter they had carriedDammika Kumara Baragamaaratchi away. It was around 11.45 then. 1600Menik Hamy did not know the names of the two accused-appellants atthat point of time. Later on when she went in search of her son to thecamp she came to know their names as Senaratne and UpulKariyawasam. Corroborative evidence has come from Manik Hamy's
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husband Somapala Baragamaaratchi who too had identified the 5thand the 6th accused-appellants as the two persons who entered hishouse and took away their son Dammika Kumara Baragamaaratchi.
Apart from these evidence coming from the mother and father ofDammika Kumara a vital item of independent corroborative evidencecame from the testimony of Prabath Kumara’s father Lionel who spoke i6ioof seeing Dammika Kumara Baragamaaratchi and Susil Kumara at hisdoor step along with the abductors who took away his son PrabathKumara. Lionel implicated the 5th and 6th accused-appellant in theabduction of his son Prabath Kumara.
In the light of the cogent and convincing evidence we do not seeany reason to interfere with the finding of guilt arrived at by the learnedtrial Judge against the 5th and 6th accused-appellants. It is to be notedthat a Habeas Corpus application had been filed against the 5th and6th accused-appellants. We affirm the conviction of the 5th and 6thaccused-appellants on counts 9 and 34.1(520
Relating to the abduction of Prabath Kumara the prosecutionadduced the evidence of his father Lionel and Garusinghe ArachigeSirisena from whose house Prabath Kumara was abducted on17.11.89. It was around 12 mid-night when there was a knock at thedoor ordering the inmates to open the door saying that they were fromKuttigala Police. When he opened the door he saw at his door step twoof his son Prabath Kumara’s friends. They were Dammika KumaraBaragamaaratchi and Susil Kumara. In fact Dammika KumaraBaragamaaratchi had been abducted on the same day. Of the personswho came into the house he identified the 5th accused-appellant and 1630the 6th accused-appellant. When he told the intruders that ParabathKumara was sleeping at a friend’s house they took him out of thehouse and put him into a van and made him to lie down. Lionelobserved the presence of a number of persons inside the van. Amongthe persons inside the van he identified Anura Gonawala and later onwhen someone called him, he saw Chamara Jayasena also lyinginside the van.
Thereafter the van was stopped near his friend GarusingheAratachige Sirisena’s house. He was asked to call his friend. Lioneltestified that he called is friend “Garu Garu’’ and then Garusinghe 1640Aratchige Sirisena had opened the door. Thereafter his son PrabathKumara was taken out of Sirisena’s house and the abductors pushed
Dayananda Lokugalappaththi and eight others v The State
(The Emhilipitiva Abduction and Murder Case) (Kulatilaka. J.)
him into Sirisena’s house and closed the door. He spoke of the pres-ence of the 5th and 6th accused-appellants throughout the journey.Garusinghe Aratchige Sirisena testified to the fact that he opened thedoor hearing the voice of Lionel and thereafter he was ordered by thepersons who accompanied Lionel to hand over Lionel’s son PrabathKumara. He was sleeping at his house that night. Those personsthereafter took away Prabath Kumara pushing his friend Lionel into hishouse.1650
Lionel’s evidence that he was brought to Sirisena) s house that nightin order to abduct his son Prabath Kumara was’ corroborated bySirisena’s evidence. Witness Lionel had the opportunity of seeing the5th and 6th accused-appellants from the time they came into hishouse, during his journey in the van, until he was pushed intoSirisena’s house by the abductors who carried away his son. Thereforewe do not see any infirmity in the identification evidence that came upbefore the trial Court in respect of the identity of the 5th and 6thaccused-appellants.
It must be observed that Susil Kumara and Chamara Jayasena hadbeen abducted on a previous occasion. It can safely be inferred thatthe abductors, of whom the 5th and 6th accused-appellants had beenidentified in the abduction of Dammika Kumara Baragamaaratchi,Prabath Kumara and Pradeep Wijesinghe, had taken the abducteesSusil Kumara and Chamara Jayasena along with them in the van fortwo reasons. Firstly, to gather information and to get them to show thehouses of their friends who were to be abducted that night and sec-ondly, to induce the parents to hand over the children when asked forby the abductors without making any fuss. They took Lionel and AnuraGonawala to get at Parabath Kumara and Pradeep Wijesinghe. Even 1670though the evidence reveals that the abductors that night abductedDammika Kumara first for the reason that Lionel’s evidence is of vitalimportance relating to the other abductors that we have decided todeal with Prabath Kumara’s abduction last. Apart from the fact thatLionel’s evidence corroborates the evidence adduced to establishDammika Kumara’s and Pradeep Wijesinghe’s abduction, his evi-dence do have a corroborative evidential value relating to the involve-ment of the 5th accused-appellant in the abduction of Susil Kumara asdisposed to by his mother Don Leelawathie and 5th accused-appellantin the abduction of Chamara Jayasena as desposed to by the sister 1680Apsara Jayasena.
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[2003] 3 Sri L.R
In view of the above findings we affirm the conviction of the 5th and6th accused-appellants on counts 10 and 35.
Dayawathie Ranasinghe who was a teacher at Embilipitiya MadyaMaha Vidyalaya during the relevant period testified to the abduction of. her son Palitha Lakshman Ranasinghe on 11.12.89 just two days afterhis GCE A/L examination. According to her the 1st accused-appellantwas not well disposed towards her family because sometime prior tothe abduction, the 1st accused-appellant had asked her husband forhis van for some personal work. But her husband was unable to 1690accede to his request for the reason that the vehicle was engaged inbusiness work.
On 17.12.89 around 7 p.m. there was a knock at the door and somepersons from outside ordered the inmates to open the door saying thatthey were from the police. At the time there was a chimney lamp burn-ing inside the house and lamp lit at the Buddha statue. When her hus-band opened the door the 5th accused-appellant entered the housefirst. He was carrying a torch with him. He inquired about the personsliving in the house. Thereafter carried away her son Palitha LakshmanRanasinghe after locking the inmates in a room. Before the abductors 1700left the house the 5th accused-appellant had demanded from her hus-band for the keys of his vehicle and her husband had to obeyhim.Thereafter the abductors left the house taking away PalithaLakshman Ranasinghe and also the van.
On 20.12.89 around 2 a.m. the inmates were awakened on hearingthe voice of their son calling the mother. “Mother, mother I came homeopen the door”. On hearing the son’s voice her husband said “Magerattaran putha avada ?” and jumped out of the bed and hurried to openthe door. But they did not see the son. At that point of time she identi-fied the 5th accused-appellant and the 3rd accused-appellant. She had 1710seen the 5th accused-appellant already on the day her son was.abducted. The 3rd accused-appellant had covered his head with atowel at the time. The intruders made the inmates to lie on the floor andransacked the wardrobes searching for something. Even though sheheard the voice of her son, they never had the opportunity of seeinghim on that day or any day thereafter.
Dayawathie Ranasinghe’s identification of the 5th accused-appel-lant is not a dock identification because she had seen this accused-appellant on the day her son was abducted and again three days later.
Dayananda Lokugalappaththi and eight others v The State
CA (The Embilipitiya Abduction and Murder Case) (Kulatilaka, J.)
Having assessed the evidence relating to the abduction the learned 1720trial Judge has convicted the 5th accused-appellant as .charged oncounts 29 and 54. We do not see any reason to interfere with the find-ing of guilt arrived at by the learned trial Judge.
In order to prove the abduction of Peduru Hewa Dewage Nihal aGrade 10 student at Udagama Maha Vidyalaya on 20.11.89 the pros-ecution adduced the evidence of his mother WeeragederaGunawathie. On that day around 12 mid-night some persons hadordered the inmates to open the door saying that they were“deshapremine”. At that time there was a lamp burning in her house.When they entered the house her husband had armed himself with a 173°club to attack the intruders. But before that one intruder had assaultedher husband with the butt of a gun. Thereafter they got hold of her sonPeduru Hewa Dewage Nihal. When she objected one of the intrudershad pointed a gun at her. The abductors were armed with guns andpistols. Amongst the accused in the dock she identified the 5thaccused-appellant as one'of the abductors.
Two weeks prior to the incident the 5th accused-appellant hadcome to her house in sparch of her sister’s son Gunasekera. After theabduction she had seen him again at the Sevana camp. Therefore heridentification of the 5th accused-appellant is not a dock identification. 1740In fact it was under cross-examination she came out with the fact thatthe 5th accused-appellant was a person seen before. Having carefullyassessed the evidence placed before the trial Court, the learned trialJudge has convicted the 5th accused-appellant as charged in theindictment.
Further, she testified that she filed a Habeas Corpus applicationwhere the 5th accused-appellant was made a respondent. She com-plained that when she went to make a statement to the local police, thepolice had turned her away saying if the son was abducted by the armythey cannot entertain her complaint. It must be observed here that the 1750learned trial Judge has given his mind to the alibi defence taken up bythe 5th accused-appellant and has rejected it. We do not find any rea-son to interfere with the finding of guilt entered by the learned trialJudge and we affirm the conviction of the 5th accused-appellant oncounts 19 and 44 and the sentences imposed on him.
The prosecution has failed to establish the charges relating to theabduction of Upul Shantha Rajapakse in counts 28 and 53.
Sri Lanka Law Reports
[2003] 3 Sri L.R
Nevertheless the trial Judge has tound the 1st an the 2nd accused-appellants guilty of conspiracy charges 2 and 4.
In the case of Pradeep Indika Malwatte the prosecution failed to 1760prove the charges of abduction in counts 15 and 40. But the trial Judgehas found the 1st and 5th accused-appellants guilty of conspiracycharges. The learned Deputy Solicitor-General quite rightly did notsupport the above convictions. Hence it is not necessary for us toperuse and consider the evidence relating to these two abductions. Inthe circumstances we proceed to acquit the 1st and 2nd accused-appellants on the conspiracy charges relating to the abductions of UpulShantha Rajapakse. We also acquit the 1 st accused-appellant and the5th accused-appellant on conspiracy charges relating to the abductionof Pradeep Indika Malwatta.1770
Chamara Sudarshan Jayasena was abducted on 11.11.89 around10 p.m. He was one of the five students referred to by teacherSomawathie Munasinghe that the 1st accused-appellant wanted to bedeleted from the class register P1. According to Apsara Jayasena, sis-ter of the abductee who was a Prefect at the time of these abductions,the abductors had broke open the door and asked for her brother.There was no electricity in her house because electric wires had beencut. But she said that there was sufficient light emanating from thelights illuminating the close by CTB Depot. Some of the intruders hadtorch lights. Of the 5 or 6 persons who came into the house some were 1780in uniform, some in shorts and others in sarongs. One of them slappedher mother on her mouth. She has told Court that she very well remem-ber this person’s face and identified the 5th accused-appellant as thatperson. Then they searched the house for Chamara Jayasena. At thatpoint of time her uncle N.E. Jayatilaka who was with them that nighthad come out. The abductors after getting, at Chamara Jayasena whowas sleeping in a room took away N.E. Jayatilaka as well. ApsaraJayasena had seen the 5th accused-appellant before at the Principal'soffice and after the abduction when she accompanied her father to theSevana camp looking for her brother. She saw the 5th accused-appel- 1790lant and came to know his name through her father. The learned trialJudge has accepted the trustworthiness of this witness.
To buttress her evidence implicating the 5th accused-appellantthere is the testimony of Kankanam Pathirage Lionel, father ofabductee Prabath Kumara. Lionel testified that he was being driven in
Dayananda Lokugalappaththi and eight others v The State
(The Embilipitiya Abduction and Murder Case) (Kulatilaka, J.)
a van on 17 October '89 night to get at his son who was sleeping atGarusinghe Arachchige Sirisena’s house. This witness has deposed tothe presence of the 5th accused-appellant and the 6th accused-appel-lant inside the van throughout the journey while in the process of exe-cuting a number of abductions. While lying inside the van he heard iboosomeone addressing him, to wit “uncle, uncle tell my father that I wasalso in the van". He saw that it was Chamara Jayasena who wasspeaking to him. This item of evidence came unchallenged and unim-pugned. The conduct of the 5th accused-appellant (along with theother abductors) taking away Chamara Jayasena on 11.11.89 andthereafter his conduct of taking Chamara Jayasena on 17.11.89 in thevan referred to by Lionel along with Susil Kumara who had beenabducted on 12.11.89 in the process of abducting Dammika KumaraBaragamaaracthci, Prabath Kumara and Pradeep Wijesinghe on
were highly incriminating circumstances established by the 1810prosecution. Except for a bold denial on the basis of an alibi which thelearned High Court Judge has rightly rejected there were no explana-tions afforded by the 5th accused-appellant (and 6th accused-appel-lant as well) for their incriminating conduct.
Having considered the above material, we affirm the conviction ofthe 5th accused-appellant for the abduction of Chamara Jayasena oncounts 21 and 46 of the indictment and the conviction of the 5thaccused-appellant for the abduction of N.E. Jayatilaka on counts 22and 47 and affirm the sentences imposed on them.
Sarath Chaminda Wijekoon a student of Embilipitiya Madya Maha 1820Vidyalaya was abducted on 16.10.89. His brother Upul Janaka Pererawhose evidence we have already referred to testified to Court of theutterances made by the 1st accused-appellant to the effect that hisbrother Sarath Chaminda Wijekoon was a J VPer and that some strongaction will have to be taken against him.
Their mother Padmini testified how on 16.10.89 around 9.00 p.m.some persons saying that they were “deshpremine” came in search ofher son Sarath Chaminda, who had by then joined the InternationalCentre for Training of Rural Leaders (ICTRL).When the intruders cameto know that Sarath Chaminda was not living there they had taken the 1830younger son Samantha to get at Sarath Chaminda.
What happened thereafter was deposed to by witness AnandaEkanayake who had ’ been abducted on an earlier date namely
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[2003] 3 Sri L.R
and was taken to Sevana camp and was fortunate enough tohave been released thereafter. He recounted that on a particular datehe and some other abductees kept at Sevana camp were taken in avan by the army men and how on their way they brought Samantha ayoung child to the vehicle. Then they went to ICTRL and broughtSarath Chaminda blind folded and dropped Samantha on their wayback to the Sevana camp. This witness categorically referred to the 1840presence of the 5th accused-appellant who had a list with him. •Ekanayake identified the 5th accused-appellant at the trial.
Padmini in her evidence has told Court that the younger brotherwas returned after half an hour’s time. Soon after Padmini had seenthe 5th accused-appellant at the Sevana camp. That was on 18.10.89.
She was allowed to see her son on that date. She observed that hishands were swollen and that he was in pain. She had seen him againon 30.10.89. The 5th accused-appellant has failed to explain away theincriminating circumstances established against him.
The learned trial Judge has found the 5th accused-appellant guilty 1850of the abduction of Sarath Chaminda Wijekoon as-charged in counts24 and 49. We affirm the conviction and sentence imposed on the 5thaccused-appellant by the learned trial Judge.
Piyaseeli Wijekone.the mother of Nalin Kumara Gunaratne givingevidence in Court stated that on 26.12.89 around 3.15 a.m. her sonNalin was abducted from house by a group of persons who claimed tobe from the police. Out of the group two persons had come to herdoorstep and she identified the 3rd accused-appellant as one of theperson who came that night and abducted her son. It was her positionthat the lights were on for about five minutes before they ordered the i860light to be switched off.
When they went to meet the 1st accused-appellant before theycould speak the 1st accused had said “wasn’t Nalin taken away lastnight. He is in some place. Don’t ask me for the place. He will bereleased in two or three days.” Further the 1 st accused had told herthat it was Handawela who had given the names.
Apart from the above witness Piyaseeli Wijekone witness SamanKumara de Silva who was a detainee at the Sevana camp speaks ofhaving seen Nalin Kumara at the Sevana camp in late January 1990.
On this evidence the learned trial Judge has convicted the 3rd 1870accused-appellant on charges of abduction under counts 12 and 37and sentenced him.
Dayananda Lokugalappaththi and eight others v The State
(The Embilipitiya Abduction and Murder Case) (Kulatilaka, J.)
The only identification of the accused was in Court at the trial. It isrelevant that although Habeas Corpus application No.407/92 had beenfiled by the father of the abductee the 4th accused-appellant had beenmade a respondent and not the 3rd accused-appellant. Hence there isa doubt whether Piyaseeli Wijekone’s evidence could be relied upon.
This being the only evidence we are of the view that it is unsafe toact on mere dock identification of the 3rd accused-appellant severalyears after the incident. Accordingly we set aside the conviction of the 18803rd accused-appellant on counts 12 and 37 and acquit him of charges12 and 37.
As regards the abduction of Sanath Priyantha the evidence camefrom Mohottige Lisinona the mother and Jayasuriya ArachchigeChandrawansa a detainee.
According to Lisinona the mother of Sanath Priyantha on 3 August1989 around 10.30 p.m. a crowd of persons claiming to be from thepolice had threatened them to open the door and when they reluctant-ly opened the door they had walked in. Out of the persons who camein four were dressed in army uniforms and some were armed with 1890guns. At the time they came the lamps were burning in the house. .
At the trial this witness identified the 5th accused-appellant, 6thaccused-appellant, and 7th accused-appellant as the persons whocame into the house that night and abducted her son. She further saidthat she used to go to the camp to have a glimpse of her son and thatshe saw her son at the Sevana camp about one and a half monthsafter he was abducted and that the 5th accused-appellant came uptoher and asked what she was doing there. This.witness in her evidencestates that she had seen the 5th, 6th accused-appellants in the Sevanacamp after her son was abducted.1900
This witness has filed a Habeas Corpus application regarding thealleged detention of her son and has made on the 3rd accused (at thetrial) and the 5th accused-appellant as respondents to the application.
Her explanation as to why the 6th and 7th accused-appellants were notmade respondents was that she did not know their names at the timeof filing the Habeas Corpus application. That explanation was accept-ed by the learned trial Judge.
The 5th and 6th accused-appellant had admittedly been attachedto the Sevana camp during the relevant period. Hence her evidencethat she had seen him at the Sevana camp after the son’s abduction
Sri Lanka Law Reports
[2003] 3 Sri L.R
can be believed. Therefore the identification of the 5th and 6thaccused-appellants in court does not amount to a dock identification.
The learned trial Judge has convicted the 5th, 6th and 7th accused-appellants of the abduction of Sanath Priyantha on counts 18 and 43.
.We have elsewhere in the judgment dealt with the alibi defence ofthe 5th and 6th accused-appellants and also the defence submissionthat the witnesses had failed to mention the names of the abductors intheir statements made to the authorities prior to the trial.
The learned trial Judge having seen and heard the evidence ofMohottige Lisinona has accepted her evidence on the abduction and 192othe identification of the 5th and 6th accused-appellants. We see no.reason to disagree with the findings of the learned trial Judge againstthe 5th and 6th accused-appellant on counts 18 and 43.
Accordingly we affirm the conviction of the 5th and 6th accused-appellants on counts 18 and 43. As regards the 7th accused-appellanthe has already been acquitted of the charges against him for the rea-son that he did not have a fair trial.
As regards the abduction of Palitha Alfred Gamage his motherKandagamage Ramanayake gave evidence at the trial. According toher on 3.8.89 around 10.30 p.m. a crowd of people had come and 1930knocked at the door saying that they were from the police. When thedoor was opened three persons in army uniform had entered thehouse armed with guns. The lights in the house were on at that timeand the intruders had wanted their son Palitha to record a statementfrom him. The witness had identified the 5th accused-appellant at thetrial as one of the persons who abducted her son on 3.8.89. She hadseen the 5th accused-appellant at the Sevana camp after the son wasabducted when she went there in the hope of seeing her son.
This witness had filed a Habeas Corpus application in respect of theabduction of her son and there is evidence that the 5th accused-appel-1940lant was made a respondent. According to her she had got to know thename of the 5th accused-appellant about 2/3 weeks after the son wasabducted.
The learned trial Judge has convicted the 5th accused-appellant forthe abduction of Palitha Alfred Gamage on counts 20 and 45 on theevidence of Kandagamage Ranmenika. She has identified the 5thaccused-appellant with the aid of the lights burning in the house. She
Dayananda Lokugalappaththi and eight others v The State
(The Embilipitiya Abduction and Murder Case) (Kulatilaka, J.)
has explained her means of knowledge. She has made the 5thaccused-appellant a respondent to the Habeas Corpus application andas such we see no reason to disagree with the learned trial Judge in 1950accepting her evidence and convicting the 5th accused-appellant oncounts 20 and 45.
We therefore affirm the conviction and sentence of the 5th accused-appellant on counts 20 and 45.‘
Evidence with regard to the abduction of Jagath Chaminda KumaraDissanayake comes from his father Seetin Dissanayake. According tothis witness on 19.10.89 around 2.45 p.m. about 7 – 8 people cameand entered his garden and three of them had come into the houseand taken away the son. His. wife and the other children too had beenat home.1960
Both the witness and his wife had gone to the Sevana camp every-day since the abduction and according to him he had seen and recog-nized the 4th, 5th and 6th accused-appellants at the camp. As he sawthem in he camp he had recollected that these three persons came tohis house and abducted his son. He had got to know the names ofthese three persons from the sentry at the gate.
As this abduction has taken place at 2.45 p.m. the means of identi-fication is not disputed because the abduction was in broad daylight.However in the Habeas Corpus application 418/92 only the 5thaccused-appellant had been made a respondent and there is no expla-1970nation for not having made the 4th and 6th accused-appellants respon-dents to the application. No doubt it is his wife who had filed theHabeas Corpus application but it cannot be imagined that they wouldnot have discussed the persons who were involved in the abductionprior to the filing of the Habeas Corpus application.
The learned trial Judge has convicted the 4th, 5th and 6th accused-appellants of the abduction of Jagath Chaminda Kumara Dissanayakeon the evidence of Don Seetin Dissanayake.
There is uncertainty about the involvement of the 4th and 6thaccused-appellants in the abduction for the reason that they were not 1980made respondents in the Haebes Corpus application.
Therefore allowing the finding of guilt by the learned trial Judgeagainst the 4th and 6th accused-appellants on charges 23 and 48 onthe above evidence to stand is unasfe. Therefore we set aside the con-
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12003) 3 Sri L.R
victions and sentences against the 4th and 6th accused-appellants oncounts 23 and 48.
However the evidence against the 5th accused-appellant is uncon-tradicted and as such we find the conviction of the 5th accused-appel-lant on the abduction of Jagath Chaminda Kumara Disssanayake oncounts 23 and 48 on the evidence of Don Seetin Dissanayake is justi-1990fied. We therefore affirm the conviction and sentence of the 5thaccused-appellant on counts 23 and 48.
Mahindapala Wickremasinghe was a second year Advanced Levelstudent at Embilipitiya Madha Maha Vidyalaya in 1989/90.
According to the witness Roslin Wickremasinghe the mother ofMahindapala on 04.01.90 around 10.30 p.m. about 4 – 5 people hadcome into her house and taken her son away stating that they want torecord a statement from him. When they told that they would bring himthe next morning to the police station her husband had been assault-ed. A bottle lamp was burning in the hall then. She had identified the 20003rd and 5th accused-appellants among them. This witness had seenthem before the abduction of her son, once at a Shramadana atEmbilipitiya Madha Maha Vidyalaya and also at the Sevana campwhen going to the fair.
This witness also stated that when she met the 1 st accused-appel-lant the day after the abduction, he telephoned one Senaratne in herpresence. She recounted “Hello Mr. Senaratne did you go anywherelast night, did you get the stuff, did you put that stuff in'the beef stall.
. Did you take Mahindapala. If so I’ II come to the camp.”
After the conversation the 1st accused-appellant told her that the 2100son will-be sent back in 2 to 3 days. A few days later when she wentthere again he had told her “do you know what your son is up to? Hehas killed 3 people, collected ID cards, attacked the camp and can dis-mantle a T 56 into parts and fix it back.” Further the 1 st accused-appel-lant had told her that the officers at the Sevana camp had called her.son upto him and told him “Here is your ‘guru’ now show what you cando”. The 1st accused-appellant had finally told her that it was uselesslooking for the son and that she should bring the daughter well.
The witness has filed a Habeas Corpus application in respect of hermissing son and made the 3rd and 5th accused-appellants respon- 2110dents.
Dayananda Lokugalappalhthi and eight others v The State
(The Embilipitiya Abduction and Murder Case) (Kulatilaka, J.)
The identification of the 3rd and 5th accused-appellants at the trialdoes not amount to a dock identification as the witness had seen thetwo accused on several occasions before the abduction, as such weare satisfied with the learned trial Judge’s acceptance of RoslinWickremasinghe’s evidence on the identity of the 3rd and 5thaccused-appellants on the abduction of her son. As we have statedearlier their presence in the camp during the period is accepted and thedefence evidence of alibi we have already dealt with elsewhere.
On this evidence the learned trial Judge has convicted the 1st, 2nd 2120and 5th accused-appellants of conspiring to abduct MahindapalaWickremasinghe and also convicted the 3rd and 5th accused-appel-lants for the abduction of Mahindapala.
However we find that there is no evidence to implicate the 2ndaccused-appellant with the conspiracy to abduct Mahindapala.Therefore we acquit him of that charge.
On the evidence of Rosalin Wickremasinghe the conviction of the1st and 5th accused-appellants on counts 2 and 4 on the charge ofconspiracy and the conviction of the 3rd and 5th accused-appellantsof the charge of abduction under counts 2 and 31 is affirmed.2130
Accordingly in respect of the 1st accused-appellant we set asidethe convictions and sentences imposed on him on the conspiracycharges in counts 2 and 4 relating to the abductions of Y.M.A SusanthaKumara, Upul Shantha Rajapakse and Pradeep Indika Malwatte.Weacquit him of these charges. We affirm the rest of the convictions andsentences imposed on him by the learned trial Judge. Subject to theabove we proceed to dismiss his appeal.
In respect of the 2nd accused-appellant we set aside the convic-tions and sentences imposed on him on the conspiracy charges incounts 2 and 4 relating to the abductions of Manelka de Silva, Y.W.A. 2140Susantha Kumara, Upul Shantha Rajapakse, and W.W.K.Mahindapala Wickremasinghe. We acquit him of these charges. Weaffirm the rest of the convictions and the sentences imposed on him bythe learned trial Judge. Subject to the above we proceed to dismiss hisappeal.
Regarding the 3rd accused-appellant we set aside the convictionsand sentences imposed on him on the conspiracy charges in counts 2and 4 relating to the abductions of Ruwan Ratnweera, Manelka deSilva and Rukman Paranavithana. We set aside the convictions and
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[2003] 3 Sri L.R
sentences on counts 11 and 36 relating to the abduction of Rukman 21503Paranavithana and counts 12 and 37 relating to the abduction of NalinKumara Gunaratne. We acquit him of these charges. We affirm the restof the convictions and sentences imposed on him by the learned trialJudge. Subject to the above we proceed to dismiss his appeal.
Regarding the 4th accused-appellant we set aside the convictionsand sentences on the abduction charges in counts 13 and 38 relatingto the abduction of Y.W.A. Susil Kumara and counts 23 and 48 relatingto the abduction of Jagath Chaminda Kumara Dissanayake. We acquithim of these charges. We affirm the rest of the convictions and the sen-tences imposed on him by the learned trial Judge. Subject to the above 2i60>we proceed to dismiss his appeal.
' In respect of the 5th accused-appellant we set aside the convictionsand sentences imposed on him on the conspiracy charges in counts 2and 4 relating to the abductions of Ruwan Ratanweera and PradeepIndika Malwatte. We acquit him on these charges. We affirm the restof the convictions and the sentences imposed on him by the learnedtrial Judge. Subject to the above we proceed to dismiss his appeal.
As regards the 6th accused-appellant we set aside the convictionsand sentences imposed on him on counts 23 and 48 relating to theabduction of Jagath Chaminda Kumara Dissanayake and acquit him 2170on these counts. We affirm the rest of the convictions and the sen-tences imposed on him by the learned trial Judge. Subject to the abovewe proceed to dismiss his appeal.
It was rather a difficult task for us to peruse and examine the massof evidence led before the learned trial Judge. In this regard we highlyappreciate and acknowledge the assistance given to us by learnedCounsel who appeared on both sides.
FERNANDO, J. – I agree.
The Supreme Court in S.C.Spl.L.A. No. 15-20-2002 on 14-2-2003,refused Special Leave to the Supreme Court from the Judgment of theCourt of Appeal, however it was directed that the period during whichthe accused – appellants were in custody should be taken into accountas having served as part of the sentence – Section 323(5), CriminalProcedure Code.