JAYASINGHEGE WIMALARATNE ALIASWIMALE MUDALALI AND OTHERSv.
THE ATTORNEY-GENERAL(SHYAMA DEDIGAMA CASE)
COURT OF APPEAL.
GUNASEKARE, J. (P/CA)
J.A. N. DE SILVA, J.
C.A. 60-62/95
C. COLOMBO CASE NO. 4844/91JANUARY 20, 21, 22. 24. 27, 28, 29. 30.
FEBRUARY 3,6,7,10 AND 12, 1997.
Criminal Law – Conspiracy – Common intention – Unlawful assembly – Robbery -Murder – Rape – Sections 113(b), 102, 140, 146, 32, 380, 296 and 364 of thePenal Code – Code of Criminal Procedure Act, Section 160(3).
It is open to the Attorney-General to rely on evidence given at the non-summary inquiry to include in the indictment a charge in respect of an offencewhich was not read to the accused at the non-summary inquiry by the Magistrate- Section 160(3), Code of Criminal Procedure Act.
Where a conditional pardon had been given to an accomplice who hadhowever resiled from his statement and made material omissions in his evidencebefore the Magistrate but there was his statement to the Magistrate which was ofa concessionary nature, failure to bring the grave discrepancy to the notice of thetrial Judge will not affect the prosecution case especially where the witness wasnot questioned about the omission at the trial.
Where the evidence of the accomplice is corroborated in a materialparticularly by the evidence of an independent witness, this fact will sustain theacceptance of the accomplice's evidence particularly where there is no denial ofsuch independent witnesses, statement when the accused concerned (5thaccused) made his dock statement. Hence the conviction on the conspiracycharge under Sections 113(b) read with sections 102 and 380 can stand.
The medical evidence established that death was due to asphyxia followingstrangulation of the neck using a ligature. Suicide was ruled out. There was alsoevidence of rape by more than one person.
The circumstantial evidence supported the charges of unlawful assembly withthe* common object of committing robbery as well as the charges of robbery oftthe basis of common intention also the charge of murder based on commonobject (Count 4) but not the charge of murder (Count 6) based on commonintention.
6. Taking into account the fact that the 3rd and 4th accused were dead when thetrial was taken up, the identity of the person or persons who committed rapecannot be established. Hence the conviction of the 1st and 2nd accused for rapecannot stand.
APPEAL from conviction entered by and sentences imposed by the High Courtof Colombo.
Ranjith Abeysuriya, PC. with Miss. Dilanthika Navaratne and Miss PriyadarshaniDias for 1st and 5th accused-appellants.
Dr. Ranjith Fernando with Miss. Kishali Pinto Jayawardena and Miss RadhanikaPeiris for 2nd accused-appellant.
C. R. de Siva. Addtional Solicitor-General with Kapila Waidyaratne, Senior StateCounsel and Miss Nimnaz Mohamed, State Counsel for the Attorney-General.
Cur. adv. vult.
April 28, 1997.
GUNASEKARE, J. (P/CA)
In this case five accused Jayasinghege Wimalaratne alias WimaleMudalali, Karunapedige Wickramaratne alias Kumara, HorathalpedigeSunil Thilakasinghe alias Gunatilleke, Karunage Jayasinghe aliasJemis Banda and Pushpasena Kapugeekiyana were indicted with oneMudalige Don Jayasena with having committed the following offences:
That between 1st January 1984 and 25th February 1984 atKegalle that the accused conspired to commit robbery of jewelleryand other property in the possession of Shyama Nandani Dedigamapunishable under Section 113(b), read with Sections 102 and 380 ofthe Penal Code.
That on or about 25th February 1984 at the place set out incount No. 1 and in the course of the same transaction that theaccused were members of an unlawful assembly the common objectof which was to commit robbery of jewellery and other property in thepossession of Shyama Nandani Dedigama punishable under Section140 of the Penal Code.
That at the time and place set out in count No. 2 and in thecourse of the same transaction that one or more members of theunlawful assembly aforesaid other than 5th accused committedrobbery of jewellery and other property in the possession of ShyamaNandani Dedigama and committed an offence punishable underSection 380 read with Section 146 of the Penal Code.
That at the time and place set out in count 2 and in the course ofthe same transaction that one or more members of the unlawfulassembly aforesaid other than the 5th accused committed murder bycausing the death of Shyama Nandani Dedigama and committed anoffence punishable under Section 296 read with Section 146 of thePenal Code.
That at the time and place set out in count No. 2 and in thecourse of the same transaction that the 1st, 2nd, 3rd and 4th accusedalong with Mudalige Don Jayasena committed robbery of jewelleryand other property in the possession of Shyama Nandani Dedigamaand committed an offence punishable under Section 380 read withSection 32 of the Penal Code.
That at the time and place set out in count No. 2 and in thecourse of the same transaction that the 1st to 5th accused togetherwith Mudalige Don Jayasena committed murder by causing the deathof Shyama Nandani Dedigama punishable under Section 296 readwith Section 32 of the Penal Code.
That at the time and place aforesaid and in the course of thesame transaction that the 1st accused committed rape on ShyamaNandani Dedigama punishable under Section 364 of the Penal Code.
That at the time and place aforesaid and in the course of thesame transaction that the 2nd accused committed rape on ShyamaNandani Dedigama punishable under Section 364 of the Penal Code.
That at the time and place aforesaid and in the course of thesame transaction that the 3rd accused committed rape on ShyamaNandani Dedigama punishable under Section 364 of the Penal Code.
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That at the time and place aforesaid and in the course of the
same transaction that the 4th accused committed rape on Shyama'Nandani Dedigama punishable under Section 364 of the Penal Code,
T
Since the 3rd and 4th accused were dead by the time the trialcommenced on 22.3.93 the indictment was appropriately amendedand the trial proceeded against the 5th accused-appellant in hispresence, and against the 1st and 2nd accused-appellants in theirabsence. It is to be noted that whilst the trial was proceeding that the1st accused-appellant surrendered to the learned High Court Judgeon 14.5.1993 after the case for the prosecution and defence had beenclosed at a time when counsel for the 5th accused-appellant wasaddressing the jury, and the 2nd accused-appellant had surrenderedto the learned High Court Judge after the verdict and sentence hadbeen pronounced.
At the end of the trial the jury by their unanimous verdict found the1st accused-appellant guilty of counts 1, 2, 3, 4, 5, 6 and 7 in theindictment, the 2nd accused-appellant guilty of counts 1, 2, 3. 4, 5, 6.and 8 of the indictment and the 5th accused-appellant guilty of count1 of the indictment.
1. 1 st accused-appellant to
2. 2nd accused-appellant to
5. 5th accused-appellant to
10 years R. I. on count 1.
06 months R.l. on count 2.
10 years R.l. on count 3.
Death on count 4.
10 years R.l. on count 5.
Death on Count 6.
20 years R.l. on count 7.
10 years R.l. on count 1.
06 months R.l. on count 2.
10 years R.l. on count 3.
Death on count 4.
10 years R.l. on count 5.
Death on count 6
20 years R.l. on count 8
10 years R.l. on count 1.
After the conviction of the accused-appellants the learned TrialJudge imposed the following sentences:
Jayasinghege Wimalarainc Alias Wimale Mudalali and Others v.
CA The Attorney-General (Shyama Dedigama Case) (Gunasekare, J. (P/CA)) 313 *
The sentences on the 1st and 2nd accused-appellant on counts 3and 5 were to run concurrently.
According to the evidence, the deceased Shyama NandaniDedigama had been a 47 year old small made spinster who had beenliving with her unmarried sister at the Dedigama Walauwwa onCircular Road, Kegalle with a Watcher called HeenbandaDissanayake who was occupying an outhouse of the Walauwwa. TheWalauwwa had been located on a land of about 7 acres on top of ahill. It had a verandah, on two sides several bed rooms, bath rooms,corridors and a Meda Midula. One could approach the Walauwwa bydriving up a hilly tarred road and also by climbing up a flight of 24steps leading from the tarred road to the front compound. Theunmarried sister who usually lived with the deceased had been awayhospitalised in the Kegalle Hospital for several days prior to the dateof this incident which happened to be the night of 25th February 1984.
The watcher Heenbanda testified at the trial that the deceasedShyama Dedigama was a teacher at St. Mary's Convent Kegalle and itwas customary for her to get up at about 4.30 or 5 a.m. and leave forschool at about 7 a.m. On the early hours of morning on 26.2.1984 hehad noticed that the lady had not got up as usual and although hecalled out to her from near her bedroom window there had been noresponse. Therefore he had gone to the house of a neighbour oneMrs. Suraweera and inquired from her as to whether Shyama hadcome there. Saying that she had not come to her houseMrs. Suraweera had telephoned one Mr. Alex Dedigama the brother-in-law ?>f the deceased who was living in Colombo. He had requestedthe watcher to speak to him and instructed the watcher Heenbanda togo back to the Walauwwa and see inside the Walauwwa and makeinquiries for the lady. Heenbanda had thereupon accompanied agentleman who were living close by and upon making inquiries hadfound a door which led to a corridor from the verandah ajar. Onproceeding inside the house he had noticed Shyama Dedigama lyingdead sprawled on the floor in between her bedroom and the bathroomnear the dining hall. He had come back to Mrs, Suraweera's houseand informed her as to what he had seen. Mrs. Suraweera had again ftelephoned Mr. Alex Dedigama who was in Colombo who had askedher to inform the Police. Mrs. Suraweera had requested Heenbanda to
go back to the Walauwwa stating that she would notify the police.Heenbanda had gone back to the Walauwwa and on the police beinginformed they had arrived at the Walauwwa a short while later.
Inspector Mahinda Jayaweera who was the Officer-in-Charge of theCrimes Division of the Kegalle Police Station had arrived at the sceneat about 7.30 a.m. with a police party on receipt of information fromMrs. Suraweera. The Dedigama Walauwwa which was the scene ofcrime had been about two miles from the Kegalle Police Station. Whenhe arrived at the scene the watcher Heenbanda had been present. Hehad noticed the front door ajar and the key of the said door in the keyhole which gave him the impression that the door had been openedfrom inside. He had noticed the body of the deceased lying on theground in between her bedroom and the bathroom near the dininghall. The body had been face upwards and the nightdress that shewas wearing had been raised above her waist. There had been bloodstains in between the legs and a fluid like urine under the body. Thebedroom which appeared to be the one occupied by the deceasedhad been ransacked. The clothes and the dresses in the wardrobehad been thrown about. An empty bottle of Henessey Brandy hadbeen lying on the bed. The window of the bedroom has had fourpanes, two glass panes inside and two wooden panes which openedoutside. There had been nine iron window bars on the window two ofwhich had been wrenched off from outside. The two iron bars whichhad been wrenched off had been found about 10 feet away near awater tank. He had instructed Sub-Inspector Kapilaratne to takephotographs of the scene. I.P. Jayaweera had got down officers of theFinger Prints Bureau to dust for finger prints, palm prinls andfoot prints and also got down the police dogs from the kennels inKandy to assist him in the investigation. Whilst at the scene hehad taken steps to have the Magisterial Inquiry and the Post-MortemExamination on the body of the deceased conducted by the
M.O., Kandy. According to his evidence the investigations into thecrime had thereafter been taken over by the Criminal InvestigationsDepartment.
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The medical evidence in the case was that of Dr. P. H. Rajapaksa* J.M.O., Kandy. He had visited the Dedigama Walauwwa to conductthe Post-Mortem Examination on the body of the deceased Shyama
Dedigama at about 12 noon on 27.2.1984 on the orders of the ActingMagistrate, Kegalle. He had found the body of the deceased faceupwards on the floor between the bedroom and the bathroom near thedining hall. Her dress had been raised up to her waist. The chest hadbeen exposed. He had observed a ligature made out of the hem of anightdress around the neck of the deceased with one knot. He hadobserved stains like blood on her inner thighs in the vaginal regionand urine underneath the body. Having made his observations he hadconducted the Post-Mortem Examination after the body was identified.
According to his evidence there had been an injury on the neck onthe front side which was similar to a groove which had resulted fromthe exertion of pressure on the neck by tightening the ligature 'P21’round the neck. The Hyoid bone had been fractured and cartilageshad been snapped. The lungs had been distended fully as a result ofasphyxia. There had been a tear in the hymen over the posterioraspect {5 O' clock position). This had extended to the vagina. Amicroscopic examination of the vaginal smears that was taken hadshowed the presence of dead spermatozoa. The cause of deathaccording to medical evidence had been due to asphyxia followingmanual strangulation of the neck using a ligature. According to theopinion of Dr. Rajapaksa strangulation would have been done by oneor more persons and he also positively excluded the deceased havingcommitted suicide. The medical evidence also revealed that thedeceased had been raped by one or more persons prior to her death.
Consequent to investigations being taken over by the C.I.D., I.P.Amunwgama as he was then, had been in charge of theinvestigations. According to him the investigations into this case hadbeen entrusted to the Criminal Investigations Department by the I.G.P.on 9.3.1984 and he under the directions of A.S.P., Hettiarachchi givenon 9.3.1984 had commenced investigations on 10.3.1984. Accordingto his evidence after he commenced his investigations he haddetailed some of his private informants to different areas in the Islandto gather information. He also had got down the notes ofinvestigations from the Kegalle police and examined them. On
t>.1984 on receiving information he had left the C.I.D. office withA.S.P., Hettiarachchi and P.C. 1582 Weerasinghe to check on it and on •11.6.1984 at 4.30 a m. he had arrested the 1st accused Wimalaratne
alias Wimale Mudalali near the Nittambuwa bus stand and broughthim to C.I.D. Headquarters in Colombo at about 7 a m. forquestioning. Having interrogated him he had recorded the statementof the 1st accused commencing at 8 a.m. Thereafter he hadproceeded with the 1st accused to the boutique of one SelliahSittambaram at 177, Sea Street, Colombo 11 at 6.20 p.m. to check onhis statement. In consequence of his statement he had discoveredtwo pieces of gold which had been melted weighing 11 1/2sovereigns (which was produced marked ‘P35’), 75 white stonesremoved from a pendant marked ‘P36’ and two rubies marked 'P19' atthe trial. Thereafter I.P. Amunugama had proceeded with the 1staccused to Kegalle and in consequence of his statement hadrecovered jewellery weighing 11 sovereigns and 6 1/2 manchadiesconsisting of necklaces, bangles and rings from a jewellery shopcalled 'Fashion Gold House' which was produced at the trial marked'P23', 'P24 'P25', ‘P26A,B,C,D’, 'P27A,B 'P28' and ‘P29’ andrecorded the statement of its owner Mohamed Lafir Mohamed Niyaz.He had left the Fashion Gold House at 10 p.m. and reached the houseof the 1st accused at 11 p.m. at Deewala, Pallegama. At the house ofthe 1st accused in consequence of a portion of the statement of the1st accused marked ‘P39’ he had recovered two small blue colouredgems which had been wrapped in a small piece of cloth concealed ina crevice in a stone retaining wall. The piece of cloth was producedmarked ‘P30A’ and the two blue coloured stones marked ‘P40’. Havingrecovered the above said items he had come to the C.I.D. office thatnight and had the 1st accused produced before the Magistrate,Colombo the following morning.
•
On further investigations being done I.P., Amunugama hadarrested one Mudalige Don Jayasena alias Captain at about
a.m. on 15.6.1984 near the Kirulapone bridge and had takenhim to the C.I.D. office at 11 a.m. He had been produced beforeA.S.P., Hettiarachchi who had interrogated him and recorded hisstatement. Having recorded the statement of Jayasena, I.P,Amunugama had proceeded with Jayasena to Kegalle for furtherinvestigations. They had returned to Colombo that night and goneb9ck to Kegalle the following day to check on Jayasena’s statement•and thereafter produced him before the Magistrate, Colombo on17.6.1984. According to I.P., Amunugama the 5th accused had been
arrested at Kegalle at about 6.30 a.m. on 17.6.1984 and producedbefore the Magistrate after his statement was recorded. The 2nd, 3rdand 4th accused had been arrested on 12.6.1984 by Sub-InspectorPahalage on the instructions of IP., Amunugama and produced beforethe Magistrate after their statements were recorded.
On 19.6.1984 I.P., Amunugama had visited the office of theGovernment Analyst and had a discussion with Mr. Wijesekera theGovernment Analyst and had requested that two officers be releasedto assist him in the investigations. On the morning of 20.6.1984 IP.,Amunugama had accompanied Assistant Government Analyst, Peirisand Scenes Investigating Officer, Jayaweera of the GovernmentAnalysts Department to the house of one Alex Dedigama in Colomboand obtained the keys of the Dedigama Walauwwa from his wife andproceeded to Ratnapura. Having met the Magistrate, Ratnapura IP.,Amunugama had taken charge of a screw driver with a red handle(P19’) and a pentorch (P31’) which had been produced before theMagistrate’s Court by the Nivithigala Police on an earlier occasionalong with the 1st accused. From there I.P., Amunugama hadproceeded to Kegalle with the officers of the Government Analyst’sDepartment and met the Proprietor of Hameed Stores and recoveredthe bill book ‘P18’ and the statements of Yusuf Mohamed Yusuf,Abdul-Hameed Mohamed Kaleel had been recorded. Thereafter I.P.,Amunugama had gone to the Dedigama Walauwwa accompanied bythe officers of the Government Analyst's Department and the otherpolice officers. According to him this was the first visit that he hadpaid to Dedigama Walauwwa during the course of the investigations.He had examined the Dedigama Walauwwa after opening its doorsfrom the keys he had obtained from Mrs. Dedigama in Colombo andprepared a sketch of the Walauwwa. He had examined the window’P3’ from which the robbers are alleged to have gained entry andthereafter had it removed to be produced in the case afterexamination by the Assistant Government Analyst. On an examinationof the room that was alleged to have been occupied by the deceasedShyama Dedigama he had found a housecoat made of some chintzcloth which had a hole in it. This housecoat had been made out ofSbme material that bore a resemblance to the piece of cloth in whifchthe two blue coloured gems had been wrapped and concealed in the*crevice of the retaining wall of the 1st accused premises. He hadtaken the housecoat 'P30' into custody. Mr. Jayaweera of theGovernment Analyst's Department had taken photographs of theroom, the Walauwwa and its vicinity on his directions. Havingexamined the scene he had come back to Colombo. Thereafter hehad forwarded the housecoat 'P30' for comparison, examination andreport with the piece of cloth 'P30A' recovered from the crevice in theretaining wall of the 1st accused's land to the Government Analystthrough the Magistrate.
T. W. P. Peiris the Assistant Government Analyst giving evidence atthe trial stated that he accompanied Inspector Amunugama andC. Jayaweera the Scenes Investigating Officer and some other PoliceOfficers on the instructions of the Government Analyst on 20.6.1984 toassist the Criminal Investigations Department in their investigationsand went to the Dedigama Walauwwa at Kegalle. On their way toKegalle they first proceeded to the Ratnapura Magistrate’s Court fromwhere Inspector Amunugama had taken charge of a screw driver('P19'). When they reached the Dedigama Walauwwa he had firstexamined a window from which the robbers are alleged to haveentered the premises. He had noticed that some pressure had been*exerted to lever the window pane. Two of the iron bars of the windowframe appeared to have been wrenched off. He himself had takenphotographs of the window pane and the window frame and thereafterhad the window panes and the window frames removed for furtherexamination. The photographs taken by him were produced as 'P44'and 'P45' and the window was producel as ‘P3 He was of opinionthat pressure had been exerted on the window pane in order to leverthe pane to open it which could have been done with the screw driver'P19', He further testified that on examination of a bed room inside theWalauwwa which was alleged to have been occupied by thedeceased he had noticed a housecoat with a floral design on the bed.On examination of the said housecoat he had found that a small piecehad been torn off. He had photographed the same which photographwas produced as 'P46'. He had instructed the police to take charge ofthe housecoat for further investigations. This housecoat was producedas 'P30'. This housecoat had been forwarded through the Magistrate'sCoftrt for examination and report. The Government Analyst was of th^©pinion that the piece of cloth: 'P30A' recovered by InspectorAmunugama in which two blue coloured stones had been wrapped
and concealed in a crevice in the retaining wall of the 1st accused'sland had been torn off from the housecoat 'P30
Mohamed Kaleel Proprietor of Hameed Stores, Kegalle givingevidence at the trial identified the bill book ‘P18’ as a bill book thatbelonged to his shop and stated that he handed it over to the officersof the Criminal Investigations Department during the course of theirinvestigations. Mohamed Nawaz of Hameed Stores in his evidencestated that he wrote bill No. 54640 on 25.2.84 after selling a screwdriver for a sum of Rs. 8.50. Mohamed Yusuf Noor Mohamed acashier of Hameed Stores, Kegalle in his evidence stated that heaccepted a sum of Rs. 8.50 from the 1st accused who was known tohim as Renuka Mudalali on 25.2.84 as payment for a screw driver soldto him by salesman Mohamed Nawaz.
Mohamed Niyaz the proprietor of Fashion Gold House, Kegalle inhis evidence at the trial stated that on 28.2.1984 that the 1st accusedwho was also known to him as Renuka Mudalali for about one and a-half to two years prior to that day came to his shop and sold some’items of Jewellery weighing 11 sovereigns and 6 1/2 manchadiesincluding a pendant and a Pethi male 26 inches long for a sum ofRs. 20,215/- for which payment was made in instalments ofRs. 10,000/-, 5,000/- and 5,215/- on three occasions. He melted thejewellery that was sold by the 1st accused and turned out new itemsof jewellery and that on 11.6.84 officers of the Criminal InvestigationsDepartment questioned him and that he handed over 11 items ofjewellery that was made by him after melting the jewellery sold to himby tlTe 1st accused to the said officers.
Chief Inspector R. M. L. Norbert Banda the Officer-in-Charge of theKuliyapitiya Police Station testifying at the trial stated that in March1984 that he was the Officer-in-Charge of the Nivithigala Police Stationand that on the night of 11.3.1984 that he went on a mobile petrol withPolice Sergeants 7197 Dayawansa, 2516 Udawerella and PoliceConstables 9820 Jayatilleke, 7955 Ratnasara, 9497 Premaratne and.several others in the Pinkanda Karavita area on the NivithigalaKalawana Road. At about 3.30 a.m. on 12.3.1984 he noticed a personstanding by the side of the road with a parcel in his hand. Otiquestioning him he stated that he was waiting for a Colombo boundbus, and all of a sudden he started to run whereupon he was chasedand apprehended. On examining the parcel there was Rs. 7140 incoins and a bottle of scent. Concealed in his waist there was apentorch and a screw driver. He took him into custody on suspicionand had him produced in the Magistrate’s Court of Ratnapura. Thepentorch and the screw driver too were handed over to theMagistrate’s Court, Ratnapura. On a subsequent occasion the screwdriver ’P19’ and the pentorch were taken over by officers of theCriminal Investigations Department in his presence from theMagistrate's Court.
Mudalige Don Jayasena alias Captain who was arrested byInspector Amunugama of the C.I.D. on 15.6.1984 and was named asan accused testified at the trial as a witness consequent upon aConditional Pardon given by the Attorney-General. According to hisevidence he was a native of a village called Kalapugama close toWadduwa. He had been employed in the Salvation Army and hadbeen stationed in the village of Deewala in Kegalle from about 1980and had been living in the official quarters assigned to him by the^Salvation Army with his family. He had given some money to one*Neville Fernando who was living along Rest House Road in order tosecure a job abroad. On the way to Neville Fernando’s house he hashad to pass the house of the 5th accused PushpasenaKapugeekiyana a Surveyor by profession. One day in the middle of1983 when Jayasena was on his way to Neville Fernando's house the5th accused had beckoned him and when he went to his house onthat occasion the 5th accused had given him a glass of orange juiceand told him that he wished to meet him to discuss a certain nTatterand wished to know where the 5th accused could meet him. When heinquired as to what it was about the 5th accused had told him that hewould tell him later and wished to know a place where he could meethim. Jayasena had then replied that he could be found near KegalleFlorists on Kalugalla Road and left the house of the 5th accused. Acouple of days later when Jayasena in the company of the 1staccused Wimalaratne was on his way to the Kegalle Courts he hadse^p the 5th accused driving down in his black Austin car from the.Court house. On seeing him the 5th accused had stopped the car andcalled him and told Jayasena that he would like to meet him soon.Jayasena thereupon had told the 5th accused that he could meet him
near the Kegalle Florists and the 5th accused had gone away. Threeor four days later when Jayasena was near Kegalle Florists the 5thaccused had come there in his car in the evening and signalled him tocome and driven a little distance away and stopped the car. When hewent there the 5th accused had requested him to get into the car anddriven to a lonely spot passing the hospital. He had stopped the carand asked Jayasena as to whether he could undertake to chase awaya mad woman who was giving him trouble from a house which wasbeing occupied by her. The 5th accused had also told Jayasena thatthere was about one and a half lakhs in cash in the house and someitems of jewellery which could be easily taken. The 5th accused hadalso told him to tie up the lady's hands make it appear that rogues hadentered the house so that the lady would get frightened and leave thehouse. The 5th accused had disclosed that the house in question wasthe Dedigama Walauwwa on being questioned by Jayasena. Further itwas Jayasena’s evidence that the 5th accused had told that if the jobwas successful that he would be given Rs. 25,000/- and if it was notthat he would be given Rs. 1000/-. Jayasena had thereupon told the# 5th accused that he cannot agree to the request made but wouldinform him after consulting the 1st accused Wimalaratne. Thereafterthe 5th accused had given him Rs. 50/- and told him that if he wasagreeable that the job should be done early. After this conversationJayasena had been dropped near the Kegalle Florists and the 5thaccused had gone away.
The same evening Jayasena had met the 1st accused (WimaleMudalali) near the Kegalle town and conveyed what the 5th accusedhadlold him. The 1st accused had agreed to undertake the job andtold Jayasena that the matter should be attended early. Two or threedays later the 1st accused had met Jayasena at the Kegalle town andtold him that he would come with some people two days thereafter inorder to carry out the task undertaken. Two days thereafter whenJayasena was near the Kegalle market at about 4.30 or 5.00 in theevening the 1 st accused had come and met him. Together they hadgone into Hameed Stores and purchased a screw driver about 10.inches long with a red wooden handle. When he was proceedingtowards the hospital along with the 1st accused Jayasena had seenBanda (the deceased 4th accused) following them about 10 to 1^yards behind. The 1st accused had then told Jayasena to go ahead
along the road and into a tea boutique. Jayasena had stayed near theMawanella bus halt. When he was there he had seen the1st accused conning along with Tilake (the deceased 3rd accused)Kumara the 2nd accused and Banda the deceased 4th accusedtowards the bus halt. The 1st accused had then suggested to him thatthey should proceed slowly. The five of them had gone towards theDedigama Walauwwa and reached the flight of steps leading to theWalauwwa at about 9 or 9.30 p.m. near the flight of steps they hadchanged their clothes and the 1st, 2nd, 3rd and 4th accused hadclimbed the flight of steps and got on to the compound of theWalauwwa. Jayasena had remained near the flight of steps to keepwatch and had seen the others going towards a window of theWalauwwa. About one and a half hours later the 1st accused hadcome to the place where he was and told him ‘where man the stuffthat you said was not there "oo) Sri e® Stag osxs&d aaa" to which hehad replied 'all right I will ask him.’
Then Jayasena had told the 1st accused 'it is time to go now, atthat’ stage the 4th accused Banda had come there and said that there#was nothing. He had then asked Banda to call the others and Bandahad thereupon gone to call them. When Banda went to call the othersthe 3rd accused Thilake had come there. A short while thereafter the2nd accused Kumara had come back with the 4th accused Banda.Jayasena had not seen anything in the hands of the 1st, 2nd, 3rd, or4th accused nor had he seen anything being concealed in their waistseither. Having come there they had dressed themselves and at thatstage the 1st accused had stated 'I will go, these chaps have onlycome to have sex with women'. Thereafter they had come*backtowards the hospital and from there they had got into a stream andcome along the stream to avoid being seen by anybody and a shortwhile later they had reached the Dharmapala Vidyalaya and had beenchatting for about half an hour there. According to him whilst theywere chatting, the 1st accused again had said that there was nothingin the house to which he had replied that they had been promisedRs. 1000/- and that he would go and collect it the following day. Fromth^re they had departed promising to meet the following evening. H§had gone home at about 2.30 or 3 in the morning and the others hadgone towards their village Deewala. According to Jayasena he had•got up at about 9 or 10 the following morning and rested for sometime after he had his breakfast, He had left home at about 3 or 3.30having had his lunch with the intention of meeting the 5th accused,towards Kegalle Florists. On the way near a boutique called thePinnagolla Kade Jayasena had learnt that the lady in the DedigamaWalauwwa had been killed. As he was proceeding towards the lonelyspot where he had met the 5th accused earlier the 5th accused hadcome in his car and asked him to get in and without saying anythingthe 5th accused had given him Rs. 10,000/-. When he questioned himas to why the 5th accused had replied that the balance would begiven the following day and asked him to come the next day to collectthe balance. Having collected Rs. 10,000/- which the 5th accused hadgiven Jayasena he had gone back to the Kegalle town and met the1st accused near a Barber saloon and there had handed over theRs. 10,000/- given to him by the 5th accused to him. The 1st accusedhad taken Rs. 5,000/- and returned the balance Rs. 5,000/- and toldhim that when he gets the balance to distribute that equally amongstthe others and he had left for home. The following day as agreed hehad come near the hospital junction and waited for the 5th accused,"[he 5th accused had come to the lonely place where they had metearlier in his car and given Jayasena another Rs. 5,000/-. When heinquired for the the balance Rs. 10,000/- due, the 5th accused hadtold him that he did not get the money and that it would be given in aweeks time near the playground road. Three or four days thereafterwhen Jayasena was on his way to see Neville Fernando he had metPolice Sergeant Premaratne who had questioned him about therobbery and the killing of Shyama Dedigama. He had got frightenedand left for Wadduwa having given Rs. 2,000/- each to the 2nd, 3rdand 4fti accused. Having spent two days in Wadduwa, Jayasena hadgot back to Kegalle where his family was and for sometime had beenshuttling between Wadduwa and Kegalle. One day, on the 15th ofJune 1984 when Jayasena was waiting for a bus at Kiruiapone inorder to go to Athurugiriya to meet a friend he had been arrested byinspector Amunugama and taken to the 4th floor of the C.I.D. andproduced before A.S.P. Hettiarachchi who had informed him that theyknew everything as everything had been disclosed by the 1stqpcused Wimale Mudalali. Thereafter he had been questioned and tjjsstatement had been recorded. After recording the statement he hadbeen produced before the Magistrate. Subsequently, a Conditional*Pardon had been given to him by the Attorney-General and had given •
evidence at the non-summary inquiry and at the trial against the otheraccused having accepted the Conditional Pardon conferred.
Jayantha Perera an Aurvedic Physician testifying at the trial statedthat he commenced his practice in 1974 at Kegalle and shifted to avillage in the Kegalle District called Hettimulla in 1979. When he waspractising in Kegalle he had engaged the services of the 5th accusedPushpasena Kapugeekiyana in order to get a survey done of one ofhis properties. He had also come to know Mudalige Don Jayasenaalias Captain who used to come to collect money for the SalvationArmy once a month. About 5 months prior to the killing of ShyamaDedigama the 5th accused had come to meet him and inquired fromhim as to whether he knew as to where Captain (Jayasena) lived. Hehad replied that he did not know but that he may be found in theKegalle town. The 5th accused had told this witness that he waslooking out for Captain in order to have some people who were inoccupation of a house on rent chased out and the household goodsremoved and inquired from him as to whether captain was suitable forthe job. After he said that Captain may be found in the Kegalle tov^nthe 5th accused had gone away. Several months after the killing in theDedigama Walauwwa officers of the C.I.D. had questioned him andrecorded his statement.
After the case for the prosecution was closed the 5th accused-appellant (who was the only accused present during the course of thetrial) made a statement from the dock. In his statement from the dockhe stated that he was a Government Surveyor till he retired in 1963;thereafter that he practised as a Licensed Surveyor and S CourtCommissioner. One day in the early part of June 1984 that someofficers of the C.I.D. including Mahinda Hettiarachchi A.S.P. and B. S.Amunugama came to see him and wanted an appointment with him inorder to record a statement in connection with the killing at theDedigama Walauwwa. He made an appointment and awaited theirarrival but the officers did not come. On 13.6.1984 that InspectorAmunugama and A.S.P., Hettiarachchi came to his house andInspector Amunugama went into his office room and examined tfiedocuments in the room. He took some documents from the room and* took him away stating that a statement had to be recorded from him.He was taken to the C.I.D. Office and questioned. At the C.I.D. office
Jayasinghege Wimalaratne Alias Wimaie Mudalali and Others v.
CAThe Attorney-General (Shyama Dedigama Case) (Gunasekare, J. (P/CA)) 325
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he was tortured. For the first time he saw Jayasena when he wasshown to him by A.S.P. Hettiarachchi in the C.I.D. office. He had neverseen Jayasena before nor had he ever come to his house. Afterrecording a statement he was produced before a Magistrate on the17th. In connection with the violation of his fundamental rights he filedan application No. 80/84 in the Supreme Court and the Supreme Courtmade Order in his favour and directed A.S.P.. Hettiarachchi and l.P.Amunugama to pay him compensation in a sum of Rs. 10,000/- withcosts. Further he stated that he is married with three children, theelder boy being an Accountant the second a Superintendent of anestate and the third a girl who was school going. He was never inwant of money. He was a social worker and the President of the LionsClub, Kegalle. He denied any complicity in this crime.
At the hearing of this appeal Mr. Ranjit Abeysuriya P.C. whoappeared on behalf of the 1st accused-appellant and the5th accused-appellant submitted that the conviction of the 1staccused-appellant in respect of count 1 to 7 and the conviction of the5th accused-appellant in respect of count 1 cannot be sustained. Itwas Learned President’s Counsel's contention that the conviction ofthe 1st and the 5th accused-appellants was founded on the evidenceof Mudalige Don Jayasena alias Captain who was a self-confessedaccomplice who testified on a Conditional Pardon conferred by theAttorney-General. He submitted that at the non-summary inquiry the1st charge against all the accused was that they between 1st January1984 and 25th February 1984 conspired to commit murder by causingthe death of Shyama Dedigama as well as to commit robbery of cashand jewellery that were in her possession and that this charge wouldhave been based on the statement of Jayasena which was recordedby the police upon which the Conditional Pardon was tendered by theAttorney-General. However, at the non summary inquiry theaccomplice Jayasena had resiled from the statement and made nomention of the fact that the 5th accused-appellant had engaged theservices of Jayasena to commit murder and instead had engaged himto#chase off a mad lady who was in occupation of a house stating th^Jshe was a troublesome lady who should be frightened by tying up herhands and feet by staging a robbery which would result in her leaving the house and lured him to undertake the assignment by stating that
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there was about one and a half lakhs in cash and jewellery of greatvalue in her possession.
He further submitted that it was the paramount duty of theprosecuting counsel to have brought this grave discrepancy in thestatement of Jayasena to the notice of the learned Trial Judge in theinterest of justice. We are unable to agree with this contention ofLearned President's Counsel for the reason that it transpired that inaddition to this statement on which a Conditional Pardon was giventhat the witness had also made a statement to the Magistrate whichwas of a confessionary nature, it is to be noted that these statementswere available not only to learned Trial Judge but to learned DefenceCounsel and to Prosecuting Counsel as well. But no questions appearto have been asked from witness Jayasena as to why no referencewas made by him in his evidence at the non summary inquiryregarding a contract to kill the lady as disclosed in his statement. Itappears to us that the Attorney-General had placed reliance on theevidence given by Jayasena at the non summary inquiry in framingthe 1st count in the indictment and support for this course of action jsto be found in Subsection 3 to Section 160 of the Code of CriminalProcedure Act. This Section reads thus:
“The Attorney-General may, subject to the provisions of this Coderelating to the joinder of charges, substitute or include in theindictment any charge in respect of any offence which is disclosedby the evidence taken by the Magistrate notwithstanding that suchcharge was not read to the accused by the Magistrate"
Therefore the submission made by the President’s Counsel thatthere was no basis for the 1st count in the indictment in our view hasno merit.
The jury appears to have accepted the evidence of the accompliceJayasena which has been referred to earlier in this judgment withoutany hesitation in finding the 1st accused-appellant guilty on counts 1t<j 7 of the indictment and the 5th accused-appellant guilty on count J. *
commission of the offences set out in the indictment. The jury appearsto have rejected the denial of the 5th accused made by way of a dockstatement as regards meeting Jayasena and the conversation he hadwith him as deposed to by Jayasena.
The evidence of Jayantha Perera appears to lend some support tothe evidence of accomplice Jayasena in regard to the fact that the 5thaccused was looking out and making inquiries for a reliable person tohave a lady who was in occupation of a house ejected by force andspecially asked him as to whether Captain alias Jayasena was areliable person to entrust a job of that nature. This had been about 5months prior to 28.2.1984. Although the 5th accused made a lengthydock statement denying any complicity in this crime and also that hecame to know Jayasena for the first time when he was confronted withJayasena in the C.I.D. Office and he came to know the 1st to 4thaccused only after this case was instituted in the Magistrate’s Court.He does not any where deny the conversation he is alleged to havehad with Jayantha Perera as deposed to by him nor does he evenattempt to contradict the testimony of Jayantha Perera. ThusJar/asena's evidence in regard to the conversation the 5th accusedhad with him appears to have been accepted by the Jury which tendsto be supported by the evidence of Jayantha Perera that the 5thaccused was looking out for Jayasena and making inquiries as towhether he was a suitable person to entrust the task of having a ladyevicted from a house.
The medical evidence in the case is that Shyama Dedigama hadbeen sfcangled to death. At the time of the examination of the bodyprior to the Post-mortem examination Dr. Rajapaksa had found aligature around the neck made out of a rolled portion of the lowermargin of nightgown with one knot secured in front. Pressure hadbeen applied by pulling the two ends of the ligature by one or morepersons which has resulted in a fracture of the superior cornue of thehyoid bone and an extravasation of blood underneath the thyro-hyoidmuscles. The cause of death was due to asphyxia followingstrangulation of the neck using a ligature. At the Post-mortemelimination Dr. Rajapaksa also has found a tear of the hymen ov^the posterior aspect at the 5 o’ clock position extending to the vagina.Examination of the vaginal smears had revealed dead spermatozoa.
According to medical evidence the deceased had been raped morethan one person.
In regard to the submissions of the Learned President’s Counselthat the conviction of the 1st accused-appellant in respect of counts 1to 7 cannot be sustained, we have examined the evidence with greatcare and are inclined to agree with his contention only in so far ascounts 6 and 7 are concerned.
Although according to the medical evidence it appears that thedeceased had been raped, the question arises as to who can befound responsible according to the evidence led by the prosecution.As observed earlier in this judgment the 3rd and 4th accused weredead at the time of the trial. According to the evidence of Jayasenawhen he was waiting near the flight of steps for about one and a halfhours the 1st accused had come there and told him that there wasnothing in the house as stated by him. A short while later the 4thaccused {since dead) had come there and repeated that there wasnothing in the house. Thereafter the 4th accused Banda had beensent to call the others. Shortly thereafter the 3rd accused had comethere and then the 2nd had returned in the company of Banda whowent to call him. It is at this stage according to the evidence ofJayasena that the 1st accused had said “These chaps have come togo near the women", (meaning that they had come to have sex). Inour view even if Jayasena’s evidence is accepted the 1st accusedcannot be found guilty of the offence of rape as the benefit of that partof the evidence of Jayasena which is favourable to the 1st accusedshould be given to him and we therefore acquit him of that count.
Since the 3rd and 4th accused were dead at the time of the trial inour view on the evidence of Jayasena the identity of the person orpersons who committed rape cannot be established for he does notclaim to have seen any one of the accused having sexual intercoursewith the lady in the Walauwwa and since the identity of the person orpersons who committed rape has not been established the convictionof the 2nd accused on count 8 too, in our view, cannot be sustained.Therefore we set aside the conviction of the 2nd accused-appellant fln• count 8 and the sentence of 20 years R.l. imposed in respect ofthereof and acquit him of the said charge.
The evidence in regard to the two counts of murder against the 1staccused namely the 4th based on unlawful assembly and the 6thbased on common intention being circumstantial we have given ouranxious consideration to the submissions of Mr. Abeysuriya andexamined the evidence of Jayasena and the medical evidence withgreat care which are the two items of evidence relied upon by theprosecution to establish them. On the medical evidence we aresatisfied that the death of Shyama Dedigama had been caused by anunfriendly hand for Dr. Rajapaksa positively and conclusively excludesthe deceased having committed suicide. Who then strangled her todeath? This was the question that had to be answered by the jury onthe evidence.
According to Jayasena when he was keeping watch from near theflight of steps, having accompanied the 1st, 2nd. 3rd and 4th accusedto the Dedigama Walauwwa at about 9.30 p.m. on 28.2.1984 he hadobserved them going towards a window of the Walauwwa. About oneand a half hours later the 1st accused had come back to the placewhere he was followed by the others and they had left the DedigamaWalauwwa along byways and along a stream. The following eveningwhen he was on his way to meet the 5th accused near a boutique. called the Pinnagolla Kade' he had learnt about the death of the ladyin the house.
Count 4 of the indictment was that the 1st and 2nd accused alongwith the deceased Sunil Thilakasinghe alias Gunatilleke, (3A)Karunage Jayasinghe alias Jemis Banda (4A) and Jayasenacomn^tted the murder of Shyama Dedigama in prosecution of thecommon object of the unlawful assembly set out in count 2 or that themembers of the said unlawful assembly knew to be likely to becommitted in prosecution of the common object. Jayasena’s evidencethat the 1st to 4th accused went towards the window of the Walauwwaand returned after one and a half hours has been accepted by thejury. Even if one or more of them had caused the injuries that resultedin the death of Shyama Dedigama then all the others who weremembers of that unlawful assembly would attract liability for the killingiPthe killing had been done by one or more of them irrespective of filsor their identity as long as they were members of that unlawful*assembly. On the evidence of Jayasena which had been accepted by
the jury one cannot say with any sense of definiteness that the killinghad been done in the prosecution of the common object of committingrobbery However, it can be reasonably inferred that when the fouraccused who were members of the unlawful assembly went to committhe robbery that they knew it to be likely that death may be committedand therefore we are of the view that there was a basis for the jury tohave convicted the 1st accysed for murder in respect of count 4 in theindictment and accordingly we affirm the conviction of the 1st and 2ndaccused of count 4 and the sentence of death imposed for the saidcount.
Count 6 for murder was based on common intention and theprosecution relied on the self same evidence of Jayasena to establishthat charge as well. In order to attract liability under Section 32 the actof one accused should be made attributable to the others and theremust be a sharing of a common murderous intention. On the evidenceof Jayasena which had been accepted by the jury the identity of theperson or persons who strangled Shyama Dedigama has not beenestablished. The burden is always on the prosecution to establish theidentity of the person who committed the criminal act and that hi»partners in the crime shared the required intention. On the evidence ofJayasena we are of the view that this burden has not beendischarged. At the finding of guilt of the 1st accused for murder inregard to count 6 cannot be sustained. Therefore we set aside theconviction of the 1st accused on count 6 and the sentence of deathimposed in respect of that count.
However, the position in regard to count 5 the charge of rqpberybased on Section 32 is different. It was the uncontradicted evidenceof Jayasena that when he was waiting near the flight of steps keepingwatch he had seen the 1st, 2nd, 3rd and 4th accused going towards awindow of the Walauwwa. About one and a half hours later the 1staccused had come near the place where he was and stated 'whereman the stuff you said was not there in the house'. A short while laterothers too had come there and all of them had left the premises. Threedays later the 1st accused had sold jewellery weighing 11 1/2sovereigns to Sittamparam of Sea Street, Colombo and about 6 day?iater he had sold jewellery weighing about 11 1/2 sovereigns to9 Fashion Gold House, Kegalle. Two gems wrapped in a piece of cloth
tom oft from a dressing gown found in Shyama Dedigama's room wasfound concealed in a crevice in a retaining wall of the 1st accusedland for which no explanation had been adduced by him. Thecircumstantial effect of these items of evidence is that 1st accused atleast had entered the Dedigama Walauwwa on the night in questionand the presence of the 2nd, 3rd and 4th in the company of the 1stcannot in any way be taken to be an innocent presence. Thus the 2nd,3rd and 4th could equally be liable for the acts of the 1st on the basisof common intention and the conviction of 1st, 2nd, 3rd and 4th oncount 5, in our view, was justified ahd is supportable on the evidence.Thus we see no reason to interfere with the conviction and sentence ofthe 1st and 2nd accused-appellants on that count.
We have examined the charge of the learned Trial Judge to the juryrelating to the principles of circumstantial evidence, unlawfulassembly and common intention and we are of the view that thedirections are adequate and cannot be faulted otherwise than thoserelating to the applicability of the principles relating to commonyitention in respect of count 6.
Mr. Abeysuriya also urged that the learned Trial Judges’ directionsto the jury in regard to how they should consider the evidence ofJayasena, the accomplice were erroneous. Associated with him wasDr. Ranjith Fernando who appeared for the 2nd accused-appellant.Dr. Fernando submitted that the learned Trial Judge erred and►misdirected the jury by stating that the evidence of Jayasena was thatthe 2nd accused entered the house along with the 1st, 3rd and 4thwhentn fact the evidence was that he had seen the four of them goingtowards the window. This being a case of circumstantial evidence theonly inference that could be drawn from the evidence of Jayasena isthat those who went towards the window had entered the house. Noexplanation has been given by the 2nd accused to the effect that hedid not participate in these offences or that he had not entered theWalauwwa that night. The evidence of the police namely that ofInspector Jayaweera of the Kegalle police who was the first policegfficer who had visited the scene in the morning of the 26th^jfFebruary 1984 had found the window pane levered and two windowbars wrenched off. This is also supported by the evidence of th£Assistant Government Analyst, Petris. These items of circumstantial •
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evidence deposed by Inspector Jayaweera and AssistantGovernment Analyst Peiris are indicative of the fact that somebodyhad forced open the window and gained entry into the Walauwwathrough the window. This being the state of evidence one cannotseriously complain of the directions of the Judge at pages 69, 76, 88,89,101,134, 183, 192 and 208 that the persons who went towards thewindow had entered the house in the absence of an explanation fromthem.
It was next submitted by Dr. Fernando that the learned Trial Judgeerred in law by failing to direct the jury to look for corroboration as arule of prudence that had now become virtually a rule of law andsubmitted that in the charge that the learned Trial Judge had laid anunusual stress on the point that corroboration of the evidence of anaccomplice is not an essential requirement and the jury could haveconvicted on the uncorroborated evidence of Jayasena theaccomplice if they believed him and chose to do so. We haveexamined the charge to the jury made by the learned Trial Judge andfind that the learned Trial Judge had on several occasions drawn theattention of the jury to look for corroboration even if they acceptedJayasena’s evidence without any hesitation. For instace at page 29 ofthe charge having stated “that it was open for the jury to haveconvicted the accused on count 1 on the evidence of Jayasena aloneif they took the view that Jayasena was a truthful witness". The learnedTrial Judge had proceeded to state as follows:
“Even if you accept that count 1 has been proved beyondreasonable doubt on the evidence of Jayasena if you take the viewthat it is not advisable to convict the accused in respect of cfiunt 1then consider as to whether Jayasena's evidence has beencorroborated by other evidence; what then is corroborative evidence?Corroborative evidence is this type of evidence. That means it mustbe some independent evidence which tends to support thatJayasena’s evidence is true. That evidence must be such that it is notdangerous to convict on Jayasena's evidence if Jayasena's evidencehas been corroborated on a material point by some independentevidence then it is open to you to act on Jayasena’s evidence”. Agai^at page 44 and 45 after having referred to the evidence of JayanthaPerera the learned Trial Judge has stated as follows: “If you accept• Jayasena’s evidence beyond reasonable doubt you may hold that the
1st count has been proved. Sometimes you may think that sinceJayasena is an accomplice that even if you accept Jayasena’sevidence beyond reasonable doubt that it is appropriate andadvisable to consider as to whether his evidence has beencorroborated by some additional and independent evidence. I havereferred to the evidence of Jayantha Perera. Sometimes if you have nodoubt whatever regarding the evidence of Jayasena then it is notnecessary to look for independent evidence which supports hisevidence. However, if you think it is advisable to look for corroborationof Jayasena's evidence from some independent evidence you may doso". At page 84 the learned Trial Judge proceeded to state as follows:
"I told you that Jayasena was an accomplice. According to Jayasenahe himself had participated in the robbery. It may be that Jayasenastated that he did not see any of the accused taking away any itemsof gold jewellery or any other thing because he wanted to show youthat he was least involved. The important question for you to consideris this? Jayasena stated that it was this crowd that entered theDedigama Walauwwa that night. Do you accept that beyondreasonable doubt? Having considered as to whether the evidence oftfie accomplice has been corroborated by some independentevidence or not if you take the view that the accomplice is trying tominimise his involvement and it is safer for you to look forcorroboration you may do so. However, the law does not stateanywhere that you should not accept the evidence of an accomplice ifit is not corroborated by some independent evidence.
Another submission that was made was that the trial Judge failed todirect Vie jury that the accomplice’s evidence under a ConditionalPardon should only be accepted if corroborated. On an examinationof the charge we find that on several occasions the learned TrialJudge had adverted to the fact that Jayasena the accomplice wastestifying under the Conditional Pardon with halters round his neckand that the jury should consider his evidence with great care andcaution and that even if they accepted his evidence without anyhesitation that they should look for independent evidence which lendssypport to his evidence. At page 181 of the charge the learned TrjgtfJudge states as follows: “the necessity to look for corroboration ofeven a part of the accomplice’s evidence by independent evidence*arises for three reasons (1) the accomplice attempts to minimise his •
criminal involvement; this attempt is made by exaggerating thecriminal acts attributed to the accused. (2) There is a belief that aselfconfessed accomplice is a person with an unsavoury character.That means he is a criminal. A criminal generally does not pay muchregard for truth. (3) An accomplice testifies on a Conditionaol Pardonor with the expectation of securing a pardon. Therefore there is ageneral belief that he is a partisan witness in favour of the prosecution.It is for you to consider as to whether Jayasena's evidence has anyone or more of the above characteristics. It is for this reason that youshould consider as to whether his evidence or a material part of it hasbeen corroborated by some independent evidence". In the light of theabove directions we are of the view that this submission of the learnedCounsel bears no merit.
It was also submitted that the learned Trial Judge erred by failing todirect the jury that the accomplice’s evidence must at the very leastbe intrinsically credible before corroboration is looked for. On anexamination of the charge we find that the learned Trial Judge onnumerous occasions had directed the jury to look for corroboration gfJayasena's evidence from items of independent evidence even if theyaccepted Jayasena’s evidence as being true without any hesitationand in view of the said directions we are unable to agree with thissubmission of the learned Counsel.
It is to be noted that Jayasena’s evidence regarding theparticipation of the 2nd accused-appellant is not supported by anyother evidence direct or circumstantial. However having regard to thestate of the evidence there was no basis for the jury to have rejectedhis evidence in regard to the complicity of the 2nd accused in theabsence of any explanation by him and we cannot say that the findingof the jury in respect of the 2nd accused was unreasonable.
On an examination of the evidence of Jayasena one does not getthe impression that he was making any attempt to implicate theaccused by exaggerating the acts attributed to them. He does noteyen say that he saw any items of stolen property in the hands of a;jyof the accused or even noticed their having concealed any stolen•goods in their person. If Jayasena wanted to he could have stated thathe saw the 3rd and 4th accused who were dead at the time of trialcarrying some stolen goods with them or for that matter that even the1st and 2nd who were absent at the trial carried stolen articles withthem that night. It is for that reason that the prosecution has to rely onitems of circumstantial evidence to establish the charge of robbery aswell.
The final submission that was made by the learned Counsel for the2nd accused-appellant was that the Learned Trial Judge erred bymisdirecting the jury by stating as corroboration items of evidencewhich in law were not capable of amounting to corroboration. In ourview the nature of the corroborative evidence required is some itemsof evidence which tend to support the version of the accomplice. Inthe instant case we find that the evidence of Jayasena that the 5thaccused asked him to simulate a robbery by tying up the hands andfeet of the lady who was giving him trouble without leaving the houseis supported by the evidence of Jayantha Perera who testified thatabout five months prior to the murder of Shyama Dedigama that the5th accused came to his house and asked him as to whether Captain(Jayasena) was a suitable person to have a lady who was giving himtrpuble ejected from a house. This item of evidence given by JayanthaPerera remains uncontradicted.
The evidence of Jayasena that the 1st accused-appellantpurchased a screw driver on the evening of the 25th of February 1984is supported by the evidence of Noor Mohamed the salesman ofHameed Stores who wrote the bill ‘P18A’ and that of Mohamed Niyazand Mohamed Kaleel who testified that a screw driver similar to 'P17'was sold to Renuka Mudalali (Wimalaratne alias Wimale Mudalali) fora sum df Rs. 8.50 on 25.2.1984.
I.P., Norbert Banda's evidence also in our view tends to supportJayasena's evidence that the 1st accused had in his possession ascrew driver which was purchased on the evening of 25.2.1984 for itwas his evidence that when he arrested the 1st accused at about
a.m. on 12.3.1984 on the Kalawana – Nivithigala Road onsuspicion he had found a screw driver concealed in his waist whichhad been taken charge of by him and produced before the RatnapuraMagistrate. The evidence of Sittamparam that the 1st accused whswas known to him and with whom he had transacted business for aperiod of about one and a had half years had sold items of jewellery
which weighed 11 1/2 sovereigns for a sum of Rs. 20,700/- on2.3.1984 and the evidence of Niyaz that the 1st accused soldjewellery weighing about 11 1/2 sovereigns to him on 28.2.1984 for asum of Rs. 20,215/- and collected that money in instalments alsolends support to the evidence of Jayasena. The finding of the piece ofcloth in which two blue stones had been wrapped and concealed inthe crevice in the retaining wall of the 1st accused’s premises on aportion of the statement made by the 1st accused to InspectorAmunugama and the evidence of the Government Analyst Peiris thaton 20.6.1984 that he found the dressing gown from which the piece ofcloth ‘P30’ in which the two blue stones had been wrapped andconcealed in the retaining wall of the 1st accused premises also lendsto support to the evidence of Jayasena.
On a careful consideration of the evidence led and the submissionsmade by Counsel for the appellants and the Learned AdditionalSolicitor General and on an examination of the evidence we areunable to agree with the submissions made on behalf of theappellants that the directions of the Learned Trial Judge except in sofar as his directions in regard to count 6 (murder based on commor •intention) and the inadequate directions in regard to counts 7 to 10(charges of rape) were erroneous or faulty. Thus we see no reason tointerfere with the conviction of the 1st accused-appellant and the 2ndaccused-appellant in respect of counts 1,2,3,4,and 5 of the indictmentor the sentences imposed in respect thereof. Accordingly we affirmthe conviction and sentence of the 1st and 2nd accused-appellants inrespect of those counts. We also see no reason to interfere with theconviction of the 5th accused-appellant in respect of count 1 ^or thesentence of 10 years R.l. imposed on him. Accordingly we affirm theconviction and sentence in respect of him.
Subject to the variation in respect of counts 6 and 7 regarding the1st accused-appellant and counts 6 and 8 in regard to the 2ndaccused-appellant referred to earlier the appeals are dismissed.
J. A. N. DE SILVA, J. – I agree.
Conviction and sentence on counts 6,7 and 8 set aside.
Conviction and sentence on counts 1 to 5 affirmed.
