– DE SARAM v. THE REPUBLIC OF SRI LANKA

031-SLLR-SLLR-2002-V-1-DE-SARAM-v.-THE-REPUBLIC-OF-SRI-LANKA.pdf


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DE SARAM
v.THE REPUBLIC OF SRI LANKA
SUPREME COURTS. N. SILVA, CJ„
BANDARANAYAKE, J„
EDUSSURIYA, J.,
YAPA, J. AND
J. A. N. DE SILVA, J.
SC APPEAL NO. 1/2001HC COLOMBO TRIAL-AT-BARNO. 120/2000
FEBRUARY 26 AND MARCH 01 AND 05, 2002
Pena! Code – Murder – Section 296 – Accomplice – Corroboration of accomplice'sevidence – Section 114 (b) of Evidence Ordinance – Statement under section27 (1) of Evidence Ordinance – "Fact" discovered in consequence of informationreceived form the accused – Section 3 of Evidence Ordinance.
The appellant and another person (who was acquitted at the trial) were indictedwith murder at a trial by a High Court at Bar. The appellant was convicted ofmurder of a woman called Sewwandi on or about 02. 09. 1999. The appellanthad developed a relationship with a married woman with a small child. Thedeceased turned down an offer of marriage with another and the accused showedno inclination to get married to her. Notwithstanding such situation, the accusedused to follow the deceased who had in the meantime joined the Army. Theaccused visited Anuradhapura Army Camp where the deceased was posted andon a false representation that her father was hospitalized brought her to a housein Batuwatta and confined her there for a month. During that period there hadbeen quarrels between the accused and the deceased. Witness Sajani Ratnayakesaid that even in her presence the accused assaulted the deceased so badlythat she (the witness) fainted.
On the day of the murder the deceased was alone at her house in Ragama whenher mother left the house. On her return the mother (Piyaseeli) found her missingand informed the Police. The same day at about 2 or 3 p.m., the accused hadmet witness Sanjeewa and said he had killed a person. The accused also fetchedwitness Piyalal and threatened to kill them with a pistol if they did not help tobury the body. Later that night the accused took the witnesses to a house inGanemulla where the body of the deceased lay; and there told witness Sanjeewathat he (the accused) had killed “Sewwandi akka" (which was how that witnesshad referred to the deceased).
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They removed the deceased's body which was under a bed. The deceased hadbeen strangled with a strap of a sling. Thereafter, the body was taken in a vanto the land of the accused's father which was surrounded by a high protectivewall. The accused made the witness to dig a grave, covered the body with abedsheet and buried it having trampled down an arm which was protruding withhis foot. About a week later in the presence of witness Sanjeewa the accusedheld a shramadana and cleared the land, put the shrubs on the grave with sometyres and burnt the same. The graphic description by the witnesses of theconcealment of the body was fully supported by the medical evidence and thefindings of the Police.
The body was recovered by the Police on statements made by the witnessesand the accused.
Held:
Witnesses Sanjeewa and Piyal were not accomplices. They were not guiltyassociates in the offence of murder or helpers in the commission of criminalacts constituting the offence charged or lesser or kindred offence of whichthe accused could be found guilty on the same indictment. All that theydid was to participate in removing the body and concealing it. The accusedsaid in his dock statement that one Bandara had killed the deceased andhad her buried in his father's land to implicate him (the accused); andthe witnesses had helped Bandara. The High Court rejected this defencein its entirety. In view of the fact that the witnesses were not accomplicesin the circumstances of the case, the question of corroboration requiredby section 114 of the Evidence Ordinance did not arise.
The fact that the police learnt from the two witnesses Sanjeewa andPiyalal where the body was buried did not take the same information givenby the accused out of the purview of section 27 (1) of the EvidenceOrdinance; for the basis of admissibility of the accused statement was notthat the accused confessed to the crime but the fact that he knew wherethe deceased's body was buried. Evidence of the accused's informationwas therefore admissible under section 27 (1) of the Evidence Ordinance.
As regards the criticism that the prosecution had failed to exclude theinference that the 2nd accused was responsible for the murder, the HighCourt held that the evidence only established her presence at the sceneand not participation in the crime; on the contrary the evidence againstthe accused included a confession to witness Sanjeewa that he had killedthe deceased. Hence, the point urged was devoid of any basis.
The evidence as to the quarrels the accused had with the deceased andthe fact that the accused had assaulted the deceased during the period
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she was detained at Batuwatte did not amount to leading evidence comingwithin the purview of section 32 (1) of the Evidence Ordinance as contendedby the defence counsel. Such evidence amounted to direct evidence ofquarrels and assaults.
Hence, the statements made by the deceased to witnesses on such occasionsdid not vitiate the conviction of the accused whether they were admissible or notunder section 32 (1) of the Evidence Ordinance.
Cases referred to :
King v. Peiris Appuhmay – 43 NLR 412.
Queen v. Ariyawanthe – 59 NLR 241.
Attorney-General v. Seneviratne – (1982) 1 Sri LR 303.
Karuppiah Servai v. The King – 52 NLR 227.
Pulukuri Kottaya v. Emperor – (1947) AIR PC 67 at 70.
Piyadasa v. Queen – 72 NLR 434.
Etin Singho v. Queen — 65 NLR 353.
Queen v. Kuiaratne – 71 NLR 529.
APPEAL from the judgment of the High Court Trial-at-Bar.
Panjit Abeysuriya, PC with Mrs. Dinusha Mirihana, Miss Lanka de Silva andLeo Perera for accused-appellant.
Priyasath Oep, PC Additional Solicitor-General with Achala Wengappu/i, MohanSeneviratne and Haripriya Jayasundera, State Counsel for Attorney-General.
Cur. adv. vult.
April 05, 2002
SARATH N. SILVA, CJ.
This is an appeal filed in terms of section 451 (3) of the Code of iCriminal Procedure Act as amended by Act No. 21 of 1988, from theconviction and sentence imposed on the accused-appellant by theHigh Court, after a Trial-at-Bar. The Trial-at-Bar commenced oninformation exhibited to the High Court by the Attorney-General. Thecharge that was made against the accused-appellant and the other
SC De Saram v. The Republic of Sri Lanka (Sarath N. Silva, CJ.) 291
accused (who was acquitted at the end of the trial) was that on orabout 02. 09. 1999 at Kendaliyaddapaluwa, Ganemulla, they commit-ted the murder of Ranasinghe Aratchige Don Enoka Sewwandi anoffence punishable under section 296 of the Penal Code.10
The deceased was 24 years old at the time of her death and hadserved a brief period as a soldier in the Sri Lanka Army at Anuradhapura.She was last seen alive in her parental home at Pahala Karagahmunaon the Ragama-Kadawatha Road. Her mother, Lalitha Piyaseeli, statedin evidence that when she left the house at about 9.00 am on02. 09. 1999 the deceased was asleep in her room and there wasno one else in the house. When she returned from her place of work,the front door was locked and the key was near the door mat. Thedeceased was missing. Later, a complaint was made to the Police.
The accused-appellant was arrested by Inspector of Police 20Samudrajeewa of the Western Province Special Investigations Unit atPeliyagoda, who was in charge of the investigations, on 01. 03. 2000.
He made a statement to the Inspector that he could point out theplace where the body of the deceased was buried in the compoundof his father's house at Kurukulawa, Ragama. On 03. 03. 2000pursuant to an order made by the Magistrate, the place was excavated,in the presence of the Magistrate and the Judicial Medical Officer(JMO), Colombo South, Dr. Ananda Samarasekera, and the putrifiedbody of the deceased was found. According to the JMO death couldhave been caused approximately 6 months before. The cause of death 30was determined as a fracture of the left hyoid bone caused by manualstrangulation. The JMO found marks on the neck which could havebeen caused by pressure being applied by tightening a strap of asling bag. The compound of the premises in which the body wasburied, was protected by an eight-foot wall and a person had to passthrough more than one gate to reach the place of burial. All the housesin the compund were owned by the father of the accused and someof them were tenanted. These are the basic facts of the case forthe prosecution.
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The prosecution relied on the evidence of the mother of the 40deceased, Lalitha Piyaseeli, to reveal certain matters regarding therelationship the accused had with the deceased culminating in thedeceased returning home one day in late June, 1999 at about 7.00pm, saying that she escaped from a place where the accused-appellanthad kept her in concealment. There is direct evidence regarding theaccused-appellant taking the deceased away from the Army camp atAnuradhapura in late May, 1999, on the pretext that her father wasin hospital after meeting with an accident and her being kept inconcealment for about a month in the house of one Kalumalli, atBatuwatta, which emanates from witness Sajani Ratnayake, a socolleague of the deceased in the Army.
The deceased had been associated with the accused from about1996 having got to know him when she went to work at the SingerSales outlet at Kadawatha. It appears that this relationship had beenfraught with quarrels between the two and the accused had assaultedthe deceased on certain occasions. The deceased turned down anoffer of marriage from another and the accused showed no inclinationto get married to her. It was in this context that her parentsencouraged her to join the Army and she commenced her periodof training of 2 months at Diyatalawa on 01. 02. 1999. The passing 60out parade was on 11. 04. 1999, at which she won several specialawards on merit. Her mother attended the event with her brother andan aunt. The deceased and two witnesses referred to hereafter, alsocame there, separately, which shows that the accused maintainedcontact with her during that period as well. After she was posted tothe Army camp at Anuradhapura, she came home for a few daysand when she was returning, the accused got her to stay with himfor one more day. Thereafter, the accused took her away from theArmy camp under a false pretext, as noted above, before she wasposted on active duty. During the period of about one month when 70she was kept in concealment at Kalumallie's house as stated above,
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there had been quarrels between the two and on one occasion sheinflicted an injury on herself with a knife. Witness Sajani Ratnayake,the colleague from the Army, contacted the accused by phone andwith difficulty managed to meet the deceased on one occasion duringthis period. She stated that even in her presence the accused as-saulted the deceased so badly that she (the witness) fainted.
In the period of two months that lapsed after her returning to theparental home, the evidence reveals two occasions on which they met.Once, when she sought his assistance to open a new account at the soBank. On the other occasion he had visited the house and quarrelledwith her regarding an affair her brother was having with a girl saidto be a relative of the accused. The accused-appellant had in themeanwhile developed a relationship with the 2nd accused, a marriedwoman with a small child and he was living with them in a houseat Genemulla, being the place where the body of the deceased wasseen by the two main witnesses for the prosecution, Sanjeewa andSumith Piyalal.
These two witnesses, the former being a driver of a three-wheelerand the latter, a mason, had been known to the accused for some 90time. They accompanied the accused to Diyatalawa to attend thepassing out parade of the deceased and later to Anuradhapura, firstlyto drop her at the Army camp and to bring her back. On-this occasionthe deceased was kept one day at Sumith Piyalal's house, beforebeing taken to Kalumallie's house, as stated above. From that pointthe narrative of events is picked up by these two witnesses whenthey say that the accused sought their assistance to bury the bodyof the deceased. The contention of the prosecution is that this took. place on 2nd September, being the day on which the deceaseddisappeared from her parental home.100
According to Sanjeewa, the accused-appellant met him at about2 or 3 pm, at the place where his three-wheeler was parked for hire
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and stated that he had killed a person. He sought assistance of thewitness to dump the body into a grave in the cemetery by raisinga concrete slab of a grave. The witness lives close to a cemetery.When the witness refused to help the accused, he had gone in searchof the other witness, Sumith Piyalal, but apparently failed to makecontact. Later, Sanjeewa himself went in search of Sumith Piyalal andmet him on the way. When Sanjeewa informed Sumith Piyalal aboutthe request made by the accused, the latter had looked at him wide-noeyed, with fear. At that stage, the accused-appellant came to the placewhere they were, in a van and walked upto them armed with a pistol.
He accused Sanjeewa of having conveyed the information to SumithPiyalal and said that if he could have done that so fast, before thenight was out, the whole village would know of it. He said that bothshould come to bury the body that night itself, if not he would killthem. He said that he would pick them (being neighbours) at 8.00pm. At the given time the accused-appellant came in a van fitted withfully tinted glass, first to Sanjeewa's house and when the latter cameout dressed in a white shirt he was asked to change into a shirt of 120another colour. Sumith Piyalal who was wearing a sarong was alsoto change his clothes and he changed into a trouser and a banian.Thereafter, the accused picked up some other friends of his includingone Bandara (to whom reference will be made later) and went to afuneral house of a relative. The accused and the others got downat the funeral house leaving the two witnesses in the van. At about11.30 pm., the accused came to the van saying that he was goingto bring some cigarettes and drove to the house at Ganemulla wherethe body of the deceased lay. According to Sanjeewa, before enteringthe house the accused said that he had killed "Sewwandi Akka". The 130witness has referred to the deceased at all stages as "SewwandiAkka". Both witnesses have stated that only the 2nd accused wasin the house at that time. The accused had taken them to a roomwhere there was a bed in the center and when the bed was removed,they saw the body of the deceased which lay face downwards, clad
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in a black tight skirt and a blouse with a strap of a sling bag tightenedround the neck. The accused-appellant removed the strap which wasround the neck and gave it to the 2nd accused. The two witnessesand the accused-appellant carried the body to the van. The accusedcarried the head and the upper part of the body and the witnesses 130held on to the trunk and the legs. They found that the deceased hadpassed urine and faecal matter. They went in the van to the accused'sfather's premises entering the compund enclosed by the eight-foot wallthrough three gates and the accused selected a spot where therewere some cinnamon bushes to dig a grave. He carried a penlighttorch and was armed with a pistol when he walked upto the spot.
He brought 2 mammoties, a pickaxe, a shovel and other implementsfrom the garage of his father's house and dug a grave 2 1/2 to 3feet deep. The two witnesses and the accused had taken turns indigging and removing the soil. A mammoty had broken in the process, noThe van was taken as near as possible to the grave. They carriedthe body and the accused dumped the body into the grave. Abedsheet was put over the body and they covered it with soil. At thispoint the right hand of the deceased was protruding and the accusedhaving failed to push the hand down with the mammoty, stampedon it with his foot and covered it with soil. About two weeks later,the accused arranged a shramadana with several of his friends,including witness Sanjeewa, to clear the compund. The shrub thatwas cleared was put over the area of the grave and the accusedput some tyres as well and set fire to it. The Police and the JM015(found traces of this burning of the site when the body was exhumedsix months later.
The graphic account given by the two witnesses as to the stateof the body, the ligature round the neck, the clothes, the depth ofthe grave, the bedsheet being used to cover the body, the protrudingright hand and as noted above, the burning of the site, is fullysupported by the findings testified to by the JMO and the Police. Thereis no doubt that they did in fact participate in the removal and burial
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of the body. This part of their evidence is not even challenged bythe defence. The suggestions made to these witnesses and the dockstatement of the accused, is on the basis that they did these actsi6oat the behest of Bandara referred to above, who killed the deceasedand buried her body in the compound to implicate the accused dueto enmity arising from an undisclosed reason. The High Court hasfor reasons stated rejected this defence in its entirety.
Learned President's Counsel for the accused-appellant raisedfour points which he contended vitiates the trial and moved for a trialde novo.
The four points urged by counsel are –
that witnesses Sanjeewa and Sumith Piyalal who gave evidenceon conditional pardons, were accomplices and there is novocorroboration of their evidence as required by law. The HighCourt erred in treating the witnesses as not being accomplicesand alternatively in acting on evidence that did not constitutecorroboration as being adequate corroboration of the evidence
of these witnesses;
that the High Court erred in admitting in evidence a portion ofthe statement of the accused, made to the Police regarding theplace of burial of the body, in terms of section 27 (1) of theEvidence Ordinance, when the same information was available
to the Police from the two witnesses, Sanjeewa and Sumith isoPiyalal;
that the case being based on circumstantial evidence, theprosecution failed to exclude that the other person present atthe scene, viz the 2nd accused could have committed themurder.
SC De Saram v. The Republic of Sri Lanka (Sarath N. Silva, CJ.) 297
that several witnesses have testified to statements made bythe deceased to them which are not relevant in terms of section32 (1) of the Evidence Ordinance.
Regarding the first point set out above, as to the evidence of thewitnesses described by learned Counsel as accomplices, I note thatiaothe relevant provisions of the Evidence Ordinance are contained insections 133 and 114 (b). Section 133 states that an accomplice shallbe a competent witness against an accused person and a convictionis not illegal merely because it proceeds upon the uncorroboratedtestimony of an accomplice.
Section 114 sets out instances in which a court may presume theexistence of certain facts. These instances are generally describedas rebuttable presumptions. In terms of illustration (b) to section 114,the court may presume that an accomplice is unworthy of credit, unlesshe is corroborated in material particulars.200
Therefore, the first matter to be considered is whether the twowitnesses, Sanjeewa and Sumith Piyalal should be considered asaccomplices.
Coomaraswamy in his book titled “The Law of Evidence? Vol. II,Book I at page 364, states as follows :
"For the purposes of section 114 (b), it may be said that anaccomplice is one concerned with another or others in thecommission of crime."
He cites with approval the following passage from Wharton onCriminal Evidence 11th Ed. Vol. II at page 1229 -210
"An accomplice is a person who knowingly, voluntarily and withcommon intent with the principal offender unites in the commission
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of a crime. The term cannot be used in a loose or popular senseso as to embrace one who has guilty knowledge or is morallydelinquent or who was an admitted participant in a related butdistinct offence. To constitute one an accomplice, he must performsome act or take some part in the commission of the crime, orowe some duty to the person in danger that makes it incumbenton him to prevent its commission."
The Additional Solicitor-General submitted that a person who has 220merely assisted in the disposal of the body of a deceased in respectof whom a charge of murder is made, cannot be considered as anaccomplice within the meaning of section 114 (b) of the EvidenceOrdinance. He relied on the judgments of the Court of Criminal Appealin the cases of King v. Peiris Appuhamy,™ and Queen v. Ariyawanthe ®
On the other hand, learned President's Counsel for the appellant,submitted that the category of persons who may be considered asaccomplices has been widened in the decision in Attorney-Generalv. Seneviratne.&)
I note that the cases relied on by the learned Additional Solicitor- 230General are directly in point.
In the case of King v. Peiris Appuhamy (supra) at page 418,Howard, CJ., observed as follows :
"Even assuming that after the murder had been committed thewitness had assisted in removing the body to the pit and that hecould have been charged with concealment of the body undersection 198 of the Penal Code that was an offence perfectlyindependent of the murder and the witness could not rightly beheld to be either a guilty associate with the accused in the crimeof murder or liable to be indicted with him jointly. The witness was 240
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therefore not an accomplice and the rule of practice as to cor-roboration had no application to the case."
In the case of Queen v. Ariyawanthe (supra) at page 243 Basnayake,CJ., obeserved as follows :
“Now the burden of proving a witness to be an accomplice, forthe purpose of inducing the jury to presume that he is unworthyof credit unless corroborated in material particulars, is upon theparty alleging it."
He went on to hold that a person who had participated in the eventafter the murder had been committed is not a guilty associate in the 250crime of murder with which the accused was charged.
In the case of Attorney-General v. Seneviratne (supra), relied onby learned President's Counsel for the accused-appellant, Soza, J.has made the following observation (at page 329) :
"There may be occasions when an accomplice though a particepscriminis cannot be charged with the same offence. His guilty partici-pation may not go far enough for this. Further, it does often occurthat an accused person though charged with a particular offenceis found guilty only of a lesser or kindred offence. More properly,therefore, an accomplice is a guilty associate whether as perpe- 260trator or inciter or helper in the commission of the criminal actsconstituting the offence charged or a lesser or kindred offence ofwhich the accused could be found guilty on the same indictment."
It was submitted that an accused who is indicted for a charge ofmurder could be convicted of an offence under section 198 of thePenal Code in connection with the disposal of the body. Counsel reliedon the judgment in the case of Karuppiah Servai v. The King.w
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in support of this proposition. It was submitted that the combined effectof the judgment of Soza, J. in Seneviratne's case and the judgmentin Servai's case, is that an offence of disposal of the body should 270be taken as "lesser or kindred offence" to one of murder andthat a person who could be convicted of the offence of disposalof a body in terms of section 198 of the Penal Code shouldbe considered as an accomplice in a case where the accused ischarged with murder.
I have to note at the outset that in Seneviratne's case, relied onby learned President's Counsel, Soza, J. had not dealt with the twojudgments referred to above, where it was specifically held that aperson who has merely assisted in the disposal of the body is notan accomplice. Soza, J. referred to a perpetrator, inciter or helper, 280in the commission of the criminal acts constituting the offence chargedor lesser or kindred offence, which the accused could be found guiltyon the same indictment. The category of persons referred to bySoza, J. are those involved in the commission of the criminal actsconstituting the offence. The reference to "lesser or kindred offence"cannot encompass an offence under section 198 of the Penal Code,which relates to causing the disappearance of evidence of the offencethat has been committed. This is an entirely different species ofoffence, where the mens rea is “the intention of screening the offenderfrom legal punishment". The words used by Soza, J. should be 290restricted to offences of the same kind or which may be lesser ingravity. The mens rea of an offence under section 198 referred toabove shows that it is not a lesser of kindred offence in relation tothe offence of murder. Servai's case is authority for the propositionthat a person indicted with murder, could be convicted for the offenceof causing the disappearance of the body under section 198 of thePenal Code by applying section 182 of the Criminal Procedure Code(section 177 of the present Code of Criminal Procedure Act). It wouldbe far fetched and an artificiality to import that reasoning to expandthe category of persons who should be considered as accomplices.300
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In this case the clear evidence is that the two witnesses, Sanjeewaand Sumith Piyalal, were not in any way perpetrators, inciters ofhelpers in the commission of the offence of murder. There is noquestion of any lesser of kindred offence which could arise forconsideration on the facts of this case. Certainly, the accused cannotbe convicted of an offence under section 198 of the Penal Codewhich relates to causing the disappearance of evidence to screen anoffender. The assistance of the two witnesses was sought by theaccused, according to the evidence, after murder had been committed.They arrived at the house at Ganemulla late that night, several hours 310after the deceased had been done to death. Therefore, I am of theview that the decisions in the cases of Peiris Appuhamy and Ariyawanthe(supra) will apply and the two witnesses should not be consideredas being accomplices. This conclusion is consistent with the definitionof an accomplice as contained in the passage from Wharton onCriminal Evidence cited above.
In the light of the foregoing finding, it is not necessary to considerthe further submission of learned President's Counsel as to the needto look for corroboration in material particulars as required bysection 114 (b) of the Evidence Ordinance.320
The next point urged by the learned President's Counsel relatesto the application of section 27 (1) of the Evidence Ordinance, in termsof which a portion of the statement made by the accused to InspectorSamudrajeewa was led in evidence.
Section 27 (1) of the Evidence Ordinance reads as follows :
"Provided that, when any fact is deposed to as discovered inconsequence of information received from a person accused ofany offence, in the custody of a police officer, so much of suchinformation, whether it amounts to a confession or not, as relatesdistinctly to the fact thereby discovered may be proved." 330
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The submission of learned President's Counsel is that the infor-mation regarding the place of the burial of the body of the deceasedhad been disclosed to the Inspector by the two witnesses referredto above, before the accused was questioned regarding the murder.On that basis it was submitted that the "fact" regarding the place ofburial was known to the Police and it could not be contended thatthis was discovered in consequence of information received from theaccused.
It appears that the submission is based on a misconception of theprovisions of section 27 (1) of the Evidence Ordinance. This section 340has to be read in the light of section 25 (1) which mandates thatno confession made to a police officer shall be proved as againsta person accused of any offence.
The rationale of the proviso in section 27 (1) is that even aconfessional statement to a police officer, which is outside the pailof evidence, could be proved where it contains information that isconfirmed by the discovery of a fact. The word “fact" appearing inthe section should be construed in the light of the definition in section3 which states, : " 'Fact' means and includes –
any thing, state of things, or relation of things capable of 350being perceived by the senses;
any mental condition of which any person is concious".
It is seen that a fact is not mere object or article but somethingthat is capable of being perceived by the senses or a mental conditionof which a person is conscious.
Coomaraswamy in his Law of Evidence /o. I, page 446, has madeparticular reference to the distinction that should be drawn betweena fact that is discovered and an object that may found. He hasstated :
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“thus, the fact referred to in this section, may be any fact as3eodefined in section 3 of the Ordinance as opposed to "fact". Theobject discovered may be the body of the injured person, theproperty stolen, bloody clothes, the weapon with which injury wasinflicted or some other material evidencce of the offence".
This distinction between the discovery of a fact and the findingof some object is clearly brought out by the Privy Council in thedecision in the case of Pulukuri Kottaya v. Emperor® where it wasobserved as follows :
“It is fallacious to treat the "fact discovered" within the sectionas equivalent to the object produced. The fact discovered embraces 370the place from which the object is produced and the knowledgeof the accused as to this, and the information given must relatedistinctly to this fact. Information as to past user, or the past historyof the object produced is not related to its discovery in the settingin which it is discovered. Information supplied by a person incustody that: 'I will produce a knife concealed in the roof of myhouse' does not lead to the discovery of a knife; knives werediscovered many years ago. It leads to the discovery of thefact that a knife is concealed in the house of the informant to hisknowledge, and if the knife is proved to have been used in the 380commission of the offence, the fact discovered is very relevant.
But, if to the statement, the words be added, "with which I stabbedA", these words are inadmissible since they do not relate todiscovery of the knife in the house of the informant".
This reasoning of the Privy Counsel was followed in the cases ofPiyadasa v. Queen® and Etin Singho v. Queen.®
When the aforesaid reasoning and the definition of the word “fact"in section 3 of the Evidence Ordinance, is applied to the evidence
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of this case, it is seen that the fact discovered by the Inspector fromthe statement of the accused was that the accused knew the place 390where the body of the deceased was buried. This information isconfirmed by the finding of the body itself, in that place. The infor-mation given by the two witnesses to the Inspector regarding the placeof burial is, of something that has been perceived by each of them,which is a fact as to their knowledge of the matter. The finding ofthe body, is a fact perceived by the Inspector and the JMO. Whatwas perceived by each witness should be viewed as a distinct fact,in this manner in keeping with the definition in section 3. This wouldavoid the confusion which would arise if the matter is consideredwithout reference to the definition in section 3. On this basis it cannot 400be contended that the information given by the witnesses to theInspector regarding the place of burial, operates as a bar to therelevant portion of the statement being admitted in evidence, in termsof section 27 (1) of the Evidence Ordinance.
The third point raised by learned President's Counsel for theaccused-appellant, is that the case being based on circumstantialevidence, the prosecution failed to exclude the other person presentat the scene, viz 2nd accused could have committed the murder.Learned counsel cited a passage from Coomaraswamy in The Lawof Evidence, Vol. I, at page 20 which reads as follows :410
"When in a case of circumstantial evidence, the evidence ledfor the prosecution lends itself to reasonable inference that eitherof the two persons could have committed an act, the burden ison the prosecution to exclude one person effectively if it seeksto attach responsibility for that act to the other person."
The passage cited is based on the reasoning in the case of Queenv. Kularatnem In that case the Supreme Court held that the bestway – often the only way – in which this can be achieved, is by the
SC De Saram v. The Republic of Sri Lanka (Sarath N. Silva, CJ.) 305
prosecution calling as a witness, the person sought to be excluded.Thus, it is clear that the statement relied on by learned counsel does 420not apply to a situation where the prosecution has alleged that twopersons have jointly committed and offence. In that situation, thequestion that arises for consideration, is the degree of participationof each of the accused and whether there is joint responsibility arisingon the alleged basis of liability. The prosecution cannot be expectedto adduce evidence excluding the 2nd accused from liability when thecase was presented on the basis that both are liable for the com-mission of the offence of murder.
The High Court in its judgment has acquitted the 2nd accused onthe basis that there is no evidence of her participation in the 430commission of the offence and that no inference could be drawn fromthe circumstantial evidence which led to the irresistible inference ofguilt on her part. The finding of the Court is that the evidence onlyestablishes her presence at the scene and not of participation in thecommission of the offence, necessary to bring home liability to her.
On the other hand, the evidence against the accused-appellantincludes a confession made to witness Sanjeewa that he killed thedeceased. Therefore, the point urged is devoid of any basis.
The final point raised by learned President's Counsel is that certainstatements made by the deceased to witnesses have been deposed 440to by those witnesses, whereas such statements do not come withinthe purview of section 32 (1) of the Evidence Ordinance. Thesestatements relate to the quarrels the accused had had with thedeceased and in particular the reference to an instance where shehad caused injury to herself pursuant to one such quarrel. Althoughthese statements had been referred to in evidence, without anyobjection by the defence, it is seen that .there is direct evidence ofsuch quarrels and instances, in which the accused had assaulted thedeceased. In particular the evidence of Sajani Ratnayake referred to
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above reveals that at the time the deceased was kept in concelament 450at Kalumalli's house the accused assaulted the deceased so badlythat she (the witness) fainted. Therefore, it is unnecessary to go intothe question whether other statements of less probative value wereadmissible or not in terms of section 32 (1) of the Evidence Ordinance.
For the reasons stated above, I am of the view that there is nomerit in any of the points urged by learned President's Counsel forthe accused-appellant. The evidence referred to above establishesbeyond reasonable doubt that the accused-appellant is guilty of theoffence with which he has been convicted.
Accordingly, I affirm the conviction and the sentence imposed and 460dismiss this appeal.
BANDARANAYAKE, J. – I agree.EDUSSURIYA, J. – I agree.YAPA, J. – I agree.
J. A. N. DE SILVA, J. – I agree.
Appeal dismissed.