DON SUNNY v. ATTONEY -GENERAL (AMARAPALA MURDER CASE)

001-SLLR-SLLR-1998-V-2-DON-SUNNY-v.-ATTONEY-GENERAL-AMARAPALA-MURDER-CASE.pdf


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Don Sunny v. Attorney-General
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DON SUNNY
v.ATTORNEY-GENERAL(AMARAPALA MURDER CASE)
COURT OF APPEALGUNASEKERA, J. (P/CA)
J. A. N. DE SILVA, J.
CA 129/94
HC COLOMBO 4216/89MARCH 17, 18, 19, 20 AND 26,
APRIL 29, 30 AND
MAY 6, 7, 8, 9 AND 13, 1997.
Murder – S. 102, 113(P) 296 Penal Code – Conspiracy – Circumstancial Evidence- Irresistable inference consistent only with guilt – Evidence of Co-conspirators.
The accused-appellant and two others were indicted on the first Count with havingbetween 1.9.86 and 27.2.87 committed conspiracy to commit murder by causingthe death of Amarapala with one G. and others under s. 113(B) and s. 102 PenalCode and on the second count having committed murder by causing the deathof the said Amarapala on 27.2.87 under s. 296 Penal Code.
After trial the accused-appellant and the absent-accused were convicted andsentenced to death; on appeal.
Held:
When a charge is sought to be proved by circumstantial evidence the proveditems of circumstantial evidence when taken together mustirresistibly point towards the only inference that the accused committed theoffence.
On a consideration of all the evidence the only inference that can be arrivedat should be consistent with the guilt of the accused only.
If on a consideration of the items of circumstantial evidence if an inferencecan be drawn which is consistent with the innocence of the accused, thenone cannot say that the charges have been proved beyond reasonabledoubt.
If upon a consideration of the proved items of circumstantial evidence ifthe only inference that can be drawn is that the accused committed theoffence then they can be found guilty.
The prosecution must prove that no one else other than the accused hadthe opportunity of committing the offence,'tfie accused can be found guiltyonly and only if the proved items of circumstantial evidence is consistentwith their guilt and inconsistent with' their innocence.
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APPEAL from the Judgment of the High Court of Colombo.
Dr. Ranjith Fernando with Mrs. Premali de Silva, Ms Keshali Pinto-Jayawardenafor accused-appellant.
C. R. de Silva P.C Additional Solicitor-General with Kapila Waidyaratne SSC andS. Samaranayake SC for Attorney-General.
Cur. adv. vult.
September 01, 1997GUNASEKERA, J. (P/CA)
The accused-appellant Pulukkuttige Don Sunny alias Sunny De Liyanagealias Sunny Aiya and two others Mohamed Iqbal Ismail and MohamedHaniff Kitchil were indicted with having between 1.9.1986 and 27.2.1987at Wellawatta, Grandpass, Dehiwala, Delkanda, Angoda and otherplaces within the jurisdiction of the High Court of Colombo committedconspiracy to commit murder by causing the death of WickremageDon Amarapala with one Halwatu Aratchige Gamini and others unknownto the prosecution punishable under section 296 read with sections113 (B) and 102 of the Penal Code.
In the second count the accused-appellant was indicted with havingcommitted murder by causing the death of Wickremage Don Amarapalaat the B. R. C. grounds in Havelock Town on 27.2.1987 punishableunder section 296 of the Penal Code.
Before the trial since it was reported that Mohamed Iqbal Ismailhad been abducted and his whereabouts were unknown the indictmentwas appropriately amended by deleting his name from the list ofaccused and incorporating his name in the body of the indictment.As the other accused Mohamed Haniff Kitchil was not traceable thetrial against him was held in absentia after recording evidence in termsof section 241 of the Code of Criminal Procedure Act.
After trial before a Judge without a jury the accused-appellant andthe absent accused Mohamed Haniff Kitchil were convicted, the appellanton both charges i'o^the indictment and the other accused Kitchil ofcount No. 1 which was the only charge against him. They were bothsentenced to death ons28.3.94 and an open warrant was issued forthe arrest of the 2nd adegsed who was absconding.
The facts relating to this case were as follows:
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Don Sunny v. Attorney-General (Gunasekera, J. P/CA)
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A customs fraud had been perpetrated by one Srilal Caldera, andthe deceased W. D. Amarapala a Senior Officer attached to theCustoms Department had pursued the offenders. During the courseof the investigations he had taken into custody two ledgers from thehouse of Iqbal who was the 1st accused at the non summary inquirywho had been abducted since then and whose name has beenincorporated in the body of the indictment. Since various entries inthe said ledgers had contained foreign currency transactions of Iqbal,Iqbal had made every attempt to have the said ledgers released fromthe custody of the Customs Department. About 3 to 4 months priorto the 27th of February, 1987, Iqbal had tried to get the ledgersreleased through the intervention of Abdul Majeed Mansoor Mohamedalias Lord Mowjood who was a businessman, a close friend and aninformant of the deceased, Amarapala.
According to the evidence of the prosecution Sunny, the accused-appellant had been a neighbour of Iqbal at Swarna Road, HavelockTown and together with Mohamed Hanif Kitchil had been membersof the same cricket team of Iqbal with Kitchil being its captain. 3 to4 months prior to the death of Amarapala, Iqbal, Sunny and Kitchilhad been making inquiries from several persons as to whether theycould secure a pistol. One of them Lalith Denzil Jayawardena whowas a friend of the 2nd accused testified that Kitchil had told himthat the pistol was wanted for the purpose of "giving the works" toa senior Customs Official.
The deposition evidence of Halwatu Arachchige Gamini alias PistolaGamini revealed that a pistol was sold by him to the appellant Sunnysome time in the month of August, September or October, 1986, withLionel and Ravi acting as brokers and that Gamini had visited thehouse of Sunny which was adjoining the house of Iqbal who had beenintroduced as Sunny's boss. During the conversation he had withSunny, Sunny had told him that the pistol was wanted to executea job in killing a top Customs Official for which he was to be paid7 to 8 lakhs. On the following day he had been told by Sunny thatthe pistol was not in proper working condition and that the bossmeaning Iqbal would not be happy about the condition of the weapon.
*«*
Afterwards Gamini had repaired the pistol *and brought it back toSunny and suggested that he disposes of it and had arranged forone Chandrakeerthi Perera to buy it, but, however ChandrakeerthiPerera had not been able to take it as Sunny had suspected him
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to be an agent of the police and assaulted him as a result of whichhe had run away from Sunny’s house.
On the fateful day 27th of February, 1987, the deceased Amarapalahad been doing his constitutional walk in the company of his walkingcompanion Piyal Weeraman about 5.30 a.m. at the B.R.C. groundsin Havelock Town when he had been fatally shot on the head frombehind by an assailant dressed in a jacket and a pair of trouserswho had run away towards the parapet wall adjoining the Havelockplayground. Piyal Weeraman had not been able to identify theassailant.
The police had been informed and investigations had commenced.Dr. M. S. L. Salgado the Judicial Medical Officer, Colombo, who hadconducted the post-mortem examination on the body of the deceasedAmarapala had testified that death had been caused by a single bulletwhich had been fired from behind which had entered from the backof the head and exited from the front causing extensive damage tothe brain.
According to the evidence of the Additional Government Analystthe shot that killed Amarapala had been fired from a distance ofbetween 4 to 20 feet. A.S.P Wijeratne who was the then O.I.C. ofthe Narahenpita Police Station had arrived at the scene and cordonedoff the scene and examined the scene with sophisticated equipmentsuch as metal detectors for the spent bullet casing but, had not beenable to find it. During the course of the investigations Iqbal, Sunny,Kitchil and Halwatu Arachchige Gamini had been arrested as suspectsand a non summary inquiry had been initiated against them. SuspectGamini had been given a conditional pardon to testify against the othersuspects.
At the hearing of the appeal learned counsel for the appellant reliedon two grounds of appeal.
1. That the Iparned trial Judge erred in law and in fact by failingto appreciate material items of evidence favourable to theaccused which militated against an irresistable inferenceconsistent only witfyhis guilt. He urged that the following mattersthat transpired in evidence were items that were favourable tothe accused-appellant.
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Don Sunny v. Attorney-General (Gunasekera, J. P/CA)
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that the evidence disclosed that the deceased had manyenemies and that there had been death threats other thanfrom Iqbal.
that Iqbal's customs culpability being marginal the motiveto have got rid of the deceased was not compelling.
the visit of the accused-appellant to B.R.C. grounds onthe morning of the 27th of February,-1987, had not beenpositively established.
the dress of the accused vis-a-vis the attire of assassinas spoken to by Mr. Weeraman who was walking alongwith the deceased at the time the deceased was shotis incompatible.
the evidence relating to the search for a gun and for anassassin by the accused negates the prosecution versionthat it was the accused who shot the deceased.
(/) the evidence relating to the fact that the gun which hasbeen secured by the appellant was not in working con-dition and therefore he had made attempts to disposeof it indicates that he was not instrumental in shootingat the deceased.
the Government Analyst's report negatives that there hadbeen target practice at the site as deposed to by thewitnesses.
that several searches made at the scene on the day ofthe incident and the following day with highly sophisti-cated equipment failed to retrieve a spent bullet casing.
2. That the learned trial Judge erred in law in respect of the
following matters:
that there was inadequate appreciation of the legalconcepts relating to circumstantial evidence.
there had been inadequate appreciation of the legalconcepts relating to the conspiracy.
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there had been insufficient consideration by the learnedtrial Judge of principles relating to the evidence ofco-conspirators as provided for in section 10 of theEvidence Ordinance.
the learned trial Judge had failed to give considerationto the consequential effect of the non-compliance of theprovisions of section 116 (2) of the Code of CriminalProcedure Act.
It was submitted by learned counsel that the trial Judge dealingwith the law relating to circumstantial evidence at page 1077 onwardsin very brief outline of the principles applicable has observed that therelevant circumstances must be consistent with the guilt of the accusedand if they are consistent with guilt as well as his innocence the benefitof such doubt should enure to the benefit of the accused and thatthis approach would be inadequate as the law requires that in orderto justify the inference of guilt the inculpatory facts must be incom-patible with the innocence of the accused and incapable of explanationupon any other reasonable hypothesis than of his guilt and anyreasonable probability must enure to the benefit of the accused andtherefore the learned trial Judge's application of the test was far fromadequate and it cannot safely be said that even if he applied thecorrect evaluation a finding of guilt would not have been inevitable.
We have considered the judgment of the learned trial Judge andwe find that he had dealt with the principles relating to circumstantialevidence from page 1771 onwards where he had observed thus:"accordingly, the prosecution has relied only on circumstantial evidenceto establish the charges of conspiracy to commit murder and murderwhen a charge is sought to be proved by circumstantial evidence theproved items of circumstantial evidence when taken together mustirresistibly point towards the only inference that the two accused andGamini and Iqbal committed the offences. On a consideration of allthe evidence, the only inference that can be arrived at should beconsistent with^the guilt of the accused only. If on a considerationof the items of circumstantial evidence if an inference can be drawnwhich is consistent yyith the innocence of the accused, then one cannotsay that the charges, have been proved beyond reasonable doubt.Therefore, if upon a consideration of the proved items of circumstantialevidence if the only inference that can be drawn is that accusedcommitted the offence then they can be found guilty. That is not all,the prosecution must prove that no one else other than the accused
CADon Sunny v. Attorney-General (Gunasekera, J. P/CA)7
had the opportunity of committing the offence. Therefore, the accusedcan be found guilty only and only if the proved items of circumstantialevidence is consistent with their guilt and inconsistent with theirinnocence."
Thus on a consideration of the charge we are unable to agreewith the submission of learned counsel for the appellant that theconsideration of the principles of circumstantial evidence by the learnedtrial Judge was inadequate.
Another submission made by learned counsel for the appellant wasthat notwithstanding the fact that this was a non jury trial it must beapparent on the face of the record that the learned trial Judge wasalive to the legal concepts relating to the offence of conspiracy andthat it was regretable to note that the trial Judge had dealt with thelaw relating to conspiracy inadequately.
The items of circumstantial evidence relied on by the prosecutionto establish a charge of conspiracy to commit murder against theappellant and the other accused emanate from the evidence of thefollowing witnesses:
L. Denzil Jayawardena a Cashier of a wine stores at Oelkandain his evidence stated that he used to paly cricket under the captaincyof Kitchil in the playground opposite Iqbal's house at Havelock Townand had seen Sunny also there. One day in the month of September,October, 1986, when he was playing cricket at the Wijaya Vidyalayagrounds in Dehiwela Iqbal, Kitchil and Sunny had come to see himin a car and Kitchil had asked him to find him a pistol. He had repliedthat he did not have one but would make inquiries from a friend whowas near the Delkanda wine stores and let him know. Then Iqbal,Kitchil and Sunny had gone away. The next day Kitchil had comewith Sunny the Appellant to meet him near the Delkanda wine storesand had inquired from him as to whether he had found a pistol aswas requested. At that time one Dammi a friend of his had been thereand Dammi had told him that his brother Shantha may have one,thereupon Sunny and Dammi had gone in search, of Shantha in thesame car in which Sunny and Kitchil had come leaving Kitchil withDenzil and returned in about 5 minutes and. said that there was nopistol with Shantha. According to his evidence Kitchil had informedhim that the pistol was wanted for Sunny and had gone away. Aboutfour days thereafter Kitchil had met him and informed him that they
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had found a pistol and stated that it was wanted “to give the worksto a top customs official and that it was Iqbal's job" and inquired fromhim as to whether he could find a man for the job. He further statedthat about two weeks after the death of Amarapala that Kitchil hadmet him at a boutique in Hill Street, Dehiwala and stated that thecustoms chief had been killed.
Lakshman Dias, who was living near Lumbini Vidyalaya in HavelockTown in his evidence stated that he had known Sunny the appellantfor some time and had given him a video deck for sale somewherein May, 1986. He had received a part payment and one day he hadgone to Sunny's house to collect the balance payment that was dueand when he went there he had seen Sunny showing a pistol to adark fat man. On seeing this he had returned home and gone backto see Sunny about two hours later and inquired for the balancemoney. Sunny had then informed him that he would pawn his chainand give him the money the following day and the next day had givenhim Rs. 3,000. On his visits to Sunny's house he had seen Sunnygoing about with Iqbal in Iqbal's car.
According to the evidence of Sisil Rohitha who was living atHavelock Road, near the Wellawatta Spinning and Weaving Mills hehad known Sunny from about 1970 and had been visiting him in hishouse also. He stated that for a period of about 1 1/2 months priorto the date on which Amarapala was killed that he had seen Sunnygoing towards the B.R.C. grounds at about 5.30 a.m. frequently buthad not seen him after Amarapala was killed doing his constitutionalwalk.
Witness Chandrakeerthi Perera who was running a printing press,in his evidence stated that after he got married he went into residenceto his wife's house at Kaduwela. When he was there his brother-in-law had been killed and an attempt had been made to kill hismother-in-law as well. As a result he had wanted to get a weaponfor his self protection and informed one Gamini working in Sisira Hotelwho was a friend of his to find him one. Gamini his friend hadintroduced him to Pistola Gamini who had informed him that a pistolwas available for sale with Sunny at Wellawatta and that he wouldget it for him. He had gone and met Sunny with Pistola Gamini inSunny's house and made inquiries, Sunny had wanted Rs. 30,000for it and showed him the pistol. He had offered Rs. 23,000 and had
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Don Sunny v. Attorney-General (Gunasekera, J. P/CA)
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given him an advance of Rs. 18,000. The next day he had gone toSunny’s house with the balance money which was carried in a bagof clothes. Pistola Gamini had already come there. When he wentto Sunny’s house Sunny and Pistola Gamini had taken him to a bighouse which was about 100 yards away and there they had consumedliquor from about 9 p.m. till about 4 a.m. During this period a telephonecall had come to that house and Sunny had answered. He hadoverheard Sunny telling the caller that there is a buyer for the pistoland that he would sell it as it is not suitable for our job. When Gaminiquestioned Sunny as to who the caller was he had replied that itwas our boss Iqbal. When he was there Sunny had found a collarlessshirt amongst his clothes in the bag and had started assaulting himstating that he (Chandrakeerthi Perera) was an agent of the police.He had managed to run away in the early hours of the morning. Thefollowing morning Gamini had brought his motor cycle to his house.He had not been able to get his money or the pistol from Sunny.After Amarapala's killing the police had traced him and questionedhim in regard to the transaction that he had with Sunny.
Witness K. S. Wimalaratne testifying at the trial stated in hisevidence that he was a pawnbroker carrying on his business atKirulapona. According to him one P. K. D. Sunny of 120 A, DharmaramaRoad, Wellawatta had pawned a gold chain on 30.12.86 and obtaineda sum of Rs. 2,000/- and thereafter on 13.1.87 he had redeemedthe pawned article. He produced the receipt books containing receiptNo. 0318 dated 30.12.86 as P3 and the receipt itself as P3A. Heidentified the appellant Sunny as the person who had pawned andredeemed the chain referred to by him in his evidence.
Counsel appearing for the accused at the trial had challenged theevidence of the aforesaid witnesses by suggesting that they were fromthe underworld and had a chequered history and had come to givefalse evidence at the instance of the police. This suggestion had beendenied by them. At the hearing of this appeal Dr. Fernando submittedthat no reliance could be placed on their testimony as on their ownadmission they were from the underworld. We are unable to agreewith his contention. It transpires from the evidence led in this casethat the conspiracy was hatched secretly by Iqbal, Kitchil, Sunny andGamini with others unknown to get rid of a customs official byemploying a hired assassin and it is incredible to expect that theirplan and conversations relating to the conspiracy would take placein public and in the presence of unknown persons.
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At the close of the prosecution case Sunny the appellant madea statement from the dock in which he stated thus: "Your Honour,
I am innocent of these charges. I have not even seen Mr. Amarapalaany day. I do not know I have never conspired to murder him. I havenot spoken to him. Up to date no pistol nor an empty bullet casinghad been taken from my house. All the evidence against me is false.God knows that. I am not involved in this murder that is all I haveto say".
We have given our anxious consideration to the submissions madeby learned counsel for the appellant and the learned Additional Solicitor-General and having examined the evidence led at the trial we areof the view as rightly conceded by the learned Additional Solicitor-General that the proved items of circumstantial evidence is inadequateto establish the charge of murder framed against the appellant andtherefore we set aside the conviction of the accused-appellant of CountNo. 2 and the sentence of death imposed on him in respect of thatCount and acquit him of that Count.
However, on the evidence led we are satisfied that the learnedtrial Judge had adequately dealt with the evidence of the witnesseswho had testified in regard to the conspiracy by the accused to causethe death of the deceased Don Amarapala and we see no reasonto interfere with the conviction and sentence of the accused-appellantand the accused who has been convicted in absentia in respect ofCount 1 and therefore we affirm the conviction and sentence in respectof that Count. Subject to the variation in setting aside the convictionand sentence in respect of Count 2 in respect of the appellant wedismiss this appeal.
J. A. N. DE SILVA, J. – I agree.
Conviction and sentence in respect of Count 2 set a side, convictionand sentence in respect of Count 1 affirmed.
Appeal dismissed.