MUNIRATHNE AND OTHERS v. THE STATE

034-SLLR-SLLR-2001-V-2-MUNIRATHNE-AND-OTHERS-v.-THE-STATE.pdf


MUNIRATHNE AND OTHERSv.
THE STATE
COURT OF APPEALYAPA, J. (P/CA)
KULATILAKE, J.
C.A. 194-200/94HC COLOMBO 5402/94SEPTEMBERS, 11, 12, 18, 19, 2000OCTOBER 3, 4. 5, 18, 19, 2000NOVEMBER 7, 8, 2000
Penal Code – S.32, S.140, S.146, Dock Identification – Reliability,Attendant Circumstances – Evidence Ordinance S.ll 4{f).
The Accused Appellants were Indicted on three counts viz: under S.140Penal Code, under S.355 read with S. 146 Penal Code, and under S. 355read with S.32 Penal Code. The accused Appellants were convicted on allthree counts.
On appeal. It was contended (1) that the evidence of dock Identification bythe Prosecution witness ought not to have been relied upon by the trialJudge (11) that the trial Judge failed to analyse and evaluate the evidenceadduced.
Held :
Kulatilake J.,
"Jurists on evidence have expressed the view that it is undesirableand unsafe for the Court to rely upon the Identification of an accusedIn Court for the first time or dock identification, the reason beingthat a witness may think to himself that the Police must have got holdof the right person and it is. so easy for a witness to point to theaccused in a dock."
Since the Prosecution has failed to relieve its burden of establishingcircumstances which not only establish the first Accused Appellant'sguilt but are also Inconsistent with his innocence, we do not thinkthis is a fit case where "Lord Ellenborough principles" could besafely applied.
Some of the circumstances relied upon by the prosecution are eitherdemonstrably unreliable or fallacious, whilst others are merelysuspicious circumstances.
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"Suspicious circumstances do not establish guilt. Nor does the proofof any number of suspicious circumstances relieve the prosecutionof its burden of proving the case against the accused beyond reasonabledoubt"
One LR has been cited as a witness for the prosecution. He was thedriver of the Jeep, and document P2 established that he had beendriving the vehicle from the time it set off until its return, he wouldhave been the best evidence. In the attendant circumstances of thiscase, Court is entitled to apply the presumption set forth under
S.114(f) Evidence Ordinance.
Appeal from the Judgment of the High Court, Colombo.
Cases referred ter:
R vs. Howick – 1970 – Cr. LR. 403.
Regina vs. Turnbull and Another – 1977 QB 224 at 228.
Gunaratne Banda vs. The Republic – S.C. 132 -136/76 H.C. Kegalle79/75 SCM 2.3.1978.
R vs. Lucas – 1981 2 All ER 1008.
R vs. Cockraine – Gurney's Report 479.
Queen vs. Kularatne 71 NLR 529 at 556.
Queen vs. M.G. Sumanasena – 66 NLR 350 at 351.
Francis Frazer. Robert Warren – 40 Cr. Appeal 160 at 162.
Rex vs. Burdett – 1520 4 B and Aldermans Reports 95.
Kankanamaratchtlge Gunadasa vs. The Republic – CA 121/95.
Ranjith Abeysuriya RC., with Ms. Priyadharshani Dias and Ms. Dinusha
Mirihana for l* Accused Appellant.
D.S. Wijesinghe RC., with N. Abeyratne for 2nd – 4th Accused Appellants.
Dr. Ranjith Fternando with Ms Anoja Jayaratne and Ms. S. Munasinghe for
5 – 7th Accused Appellants.
C.R. de Silva, RC., Solicitor General with Sarath Jayamanne S.S.C. for
Attorney General.
Cur. adv. vult.
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Januaiy 26, 2001KULATILAKA, J.
In* this prosecution the accused-appellants were indictedon three counts. The first count alleged that the accused-appellants were members of an unlawful assembly the commonobject of which was to abduct Mirissa Galbokka HewageWasantha Bandula, on 20.8.1990 an offence punishable underSection 140 of the Penal Code. In the second count it was allegedthat the accused-appellants whilst being members of the saidunlawful assembly had abducted the said Wasantha Bandulawith the intent to murder or with the intention that he may beput in danger of being murdered an offence punishable underSection 355 read with Section 146 of the Penal Code. In thethird count they were charged with the abduction of the saidWasantha Bandula on the basis of common intention, an offencepunishable under Section 355 read with Section 32 of the PenalCode.
At the trial, the High Court Judge of Colombo sitting withouta jury convicted all the accused-appellants on all three counts.On count one they were sentenced to a term of six monthsrigorous imprisonment and to a fine of Rs. 500/-. On count twothey were sentenced to a term of ten years rigorousimprisonment and to a fine of Rs. 10,000/- and on count threethey were sentenced to a term of ten years rigorousimprisonment and to a fine of Rs. 10,000/-. All the sentenceswere to run concurrently. The accused-appellants have appealedagainst their convictions and sentences.
The prosecution case which gave rise to these convictionsare as follows:
Wasantha Bandula was witness Chandrasiri's brother.Chandrasiri was constructing a house on a ten perch block ofland and by 20.8.1990 only two rooms had come up. FTromTalwatugoda one has to proceed along the JayawardenapuraHospital road and on reaching a by road named Welipara
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proceed further up to locate this partly built house. Chandrasirioccupied one room and was living there all by himself.Occasionally his brother Wasantha Bandula happened to comethere and sleep in the other room. On 20.8.1990 WasanthaBandula had come there along with his friend Wasantha Kumaracarrying with them some dinner packets. Chandrasiri had retiredto bed early after his dinner whilst Wasantha Bandula andWasantha Kumara were still having their meals. It was around10.30 p.m. Chandrasiri was awakened on hearing some footsteps inside the house. When he came out of his room he founda number of persons inside the house. They had come in searchof his brother Wasantha Bandula. At that point of time theintruders were inquiring from his brother Wasantha Bandulaabout a car taken away by him from Ratnapura. Thereuponthey got hold of him and took him away. Chandrasiri had followedthe abductors on his motor cycle along with Wasantha Kumarain the direction of the new Parliament. On their way they founda car and a jeep parked opposite the new Parliament. They sawNamal Silva inside the car signalling them to go away. WhenChandrasiri stopped the motor cycle two persons had comeand assaulted both of them. Whereupon they had bolted leavingthe motor cycle behind. Later they came back and removed themotor cycle. Chandrasiri noted down the number of the Jeep. Itwas bearing No. 32 Sri 7311. The following morning he informedabout this incident to his sister Padma Ponnamperuma. She inturn had seen the Superintendent of Police Ratnapura SirisenaHerat with a lawyer friend Bodipala Kasthuriaratchchi andcomplained to the Superintendent of Police about the incidentand had given the number of the jeep as well. One month lateron 23.9.1990 a formal complaint had been lodged at theTalangama police station by Chandrasiri wherein he formallydisclosed the number of the jeep. Thereafter investigations hadbeen conducted by the Criminal Investigations Deapartment.Apparently the jeep bearing No.32-7311 was a jeep belongingto the Ratnapura police at that point of time.
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The prosecution has adduced the evidence of Chandrasiri,Wasantha Kumara and Namal Sugathadasa Silva to establishthe act of abduction, and the involvement of the accused-appellants in the crime and that it was in the jeep bearing No.32-7311 that the accused-appellants had abducted WasanthaBandula. To establish the fact that the involvement of the jeepbearing No.32-7311 in the abduction of Wasantha Bandula wasbrought to the notice of the Superintendent of police SirisenaHerath, the prosecution led the evidence of PadmaPonnamperuma, Lawyer Bodipala Kasthuriaractchi and themother of Chandrasiri, and in order to establish that theabductors had taken away Wasantha Bandula in connectionwith a car alleged to have been stolen from Ratnapura, theprosecution relied heavily on the testimony of Karunaratne agarage owner from Galle. Further the prosecution relied ondocument PI which was the running chart of the jeep bearingNo.32-7311 maintained by PC. 15633 Lionel for the period20.8.1990 to 22.8.1990, the document P2 which was the out-entry of 20.8.1990 and document marked P3 which was thein-entry of22.8.1990 for the same vehicle in its effort to implicatethe accused-appellants in the abduction. These entries havebeen entered in the relevant Information Book by the firstaccused. However, it is significant that the prosecution did notcall PC. Lionel the driver of the jeep even though his name wasin the list of witnesses for the prosecution.
When the defence was called for in terms of Section 200 ofthe Code of Criminal Procedure Act No. 15 of 1979 the firstaccused-appellant made a dock statement denying the chargewhilst the rest of the accused-appellants opted to remain silent.
The main ground urged by the learned President’s Conselwho appeared for the first accused-appellant with which learnedPresident's Counsel who appeared for the second, third andfourth accused-appellants and the learned senior counsel forthe fifth, sixth and seventh accused-appellants associatedthemselves was, that the evidence of dock identification by theprosecution witnesses ought not to have been relied upon by
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the learned trial Judge in convicting the accused-appellants inview of the dangers inherent in such means of identification.Secondly, the learned President's Counsel submitted that thelearned trial Judge has failed to analyse and evaluate theevidence adduced by the prosecution in the proper perspectiveand thereby misdirected himself in law. On a perusal of theevidence adduced by Chandrasiri, Wasantha Kumara andNamal Silva, it appears that the main endeavour of the learnedcounsel who appeared for the accused-appellants at the trialhad been to assail their credibility with regard to the dockidentification.
Jurists on Evidence have expressed the view that it isundesirable and unsafe for the Court to rely upon theidentification of an accused in Court for the first time or dockidentification, the reason being that a witness may well think tohimself that the police must have got hold of the right personand it is, so easy for a witness to point to the accused in thedock. In this connection vide Cross on Evidence 6th Edition page44-45; Archbold – Criminal Pleadings, Evidence and Practice2000th Edition paragraph 14-2, 14-10 page 1303-1304;Phipson on Evidence 15th Edition 14-17 page 321 and also Rvs. Howickf11 In Regina vs. Turnbull & Another*21 at 228 LordWidgery referring to the evidence of visual identification, hadthis to say "such evidence can bring about miscarriages of justiceand has done so in few cases in recent years.” Regard to theevidential value of dock identification in this country -Wijesundera, J had to make the following observation in hisjudgment in Gunaratne Banda vs. The Republtd31.
"The other witnesses identified the accused for the firsttime at the trial in the dock. Again it has been repeatedlysaid even in the recent past by this Court, in more casesthan one that this type of evidence is worthless and, if Imay add, no useful purpose will be served in leadingsuch evidence."
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The virtual complainant in this case Chandrasiri testifiedat the trial that on 20.8.1990 around 10.30 p.m. the abductors,seven in number, carried away his brother from his house inhis presence. For the first time he identified in Court all theseven accused-appellants in the dock when giving evidence on6.7.94. That was after an elapse of nearly 4 years from the dateof the incident. Under incisive cross-examination, when he wasconfronted with his police statement he conveniently shifted hisoriginal position and said that he could not properly see threeof the abductors for the reason , they within few minutes jumpedout of the window of the room where Wasantha Kumara andWasantha Bandula were to sleep that night. Further he retractedhis evidence in regard to the number of the abductors when headmitted that the number he had given in his police statementwas six. Hence, his evidence at the trial on this vital point is perse contradictory. Wasantha Kumara who was having his mealswith Wasantha Bandula at the time of abduction spoke of thepresence of only four persons inside the house who he identifiedas the first, second, fourth, and the seventh accused-appellantsfor the first time in the dock after four years. But very strangelydespite the fact that he stood close to Chandrasiri at that pointof time did not speak of three persons jumping out of thewindow.
Namal Silva who had accompnied the abductors toChandrasiri's house that night made a dock identification ofthe first, fourth and the seventh accused-appellants. But verystrangely he could not identify the person who was with himinside the car throughout the journey, nor could he identify theperson who had held him by his hand when he directed thatperson to Chandrasiri's house after getting down from the carnear Chandrasiri's house. He had seen two of the abductorsassaulting Chandrasiri and Wasantha Kumara when theystopped their motor cycle on the new Parliament road. Are weto assume that only the figures of the first, fourth and the seventhaccused-appellants were recorded in his memory, whereas hismemory had failed in respect of those who happened to bearound him at the time of the incident? About the number of
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persons who took part in the abduction Chandrasiri spoke ofsix or seven, Wasantha Kumara four and Namal Silva could notremember. Hence, on this vital issue the evidence of Chandrasiri,Wasantha Kumara and Namal Silva were not only per secontradictory but also inter se contradictory. Thesediscrepancies and inconsistencies lead us to the conclusion thatthe evidence of dock identification by these witnesses aredemonstrably unreliable and as such, cannot be acted upon.Hence the intrinsic value of their evidence of dock identificationis reduced to nought. Apart from this a doubt arises that even ifthe figure of a particular person or what he did get recorded inthe memory of a witness whether it could hold good for a periodof 4 years. Even though the prosecution endeavoured toestablish that the abductors had come in the jeep bearing No.32-7311 blue in colour, the evidence of Chandrasiri and PadnlaPonnamperuma on that point turned out to be a damp squibfor the reason that Superintendent of Police Sirisena Herathcategorically denied that Padma Ponnamperuma gave him thenumber of the jeep in which the abductors were alleged to havecome on 20.8.90 in search of Wasantha Bandula. The policeofficer in fact proceeded to state that Padma Ponnamperumadid not even mention any involvement of the Ratnapura policein the abduction of her brother Wasantha Bandula. Vide pages150 and 152 of the record.
Further Sub Inspector Palitha Rohan Siriwardena undercross-examination by the defence testified that Chandrasiri inhis statement made on 20.8.90 has not stated that he followedthe abductors and managed to obtain some particulars nearthe Parliament. Vide pages 251 to 252 of the record.
At this juncture it is appropriate to note that, at thecommencement of the hearing a Senior State Counsel appearedfor the Hon. Attorney-General. But after the learned counsel forthe accused-appellants concluded their submissions, learnedSolicitor-General entered his appearance for the Hon. Attorney-General along with the Senior State Counsel. In the course ofhis argument the learned Solicitor-General indicated to Court
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that he does not wish to press the case against the 2nd to the 7thaccused-appellants. Albeit, he proceeded to make a painstakingeffort to keep alive the conviction of the first accused-appellant.
The learned Solicitor-General endeavoured to support theconviction of the first accused-appellant on the basis that theprosecution has presented highly incriminating circumstantialevidence against him. He also contended that the prosecutionhas established an intentional and deliberate lie uttered by theaccused-appellant outside Court which factor wouldcorroborate the prosecution case. Finally he contended thatsince the prosecution has made out a case against the firstaccused-appellant for him to answer, his failure to do so wouldwarrant the trial Judge to draw an adverse inference that hearrived at against the first accused-appellant.
In his submissions the learned Solicitor- General advancedhis propositions based on a number of circumstances namely;a) that the first accused-appellant had been on a specialassigment at the Security Co-ordinating Unit of the Ratnapurapolice from 16.8.90 until 28.8.90 to investigate into theinvolvements of the crime suspect Sunil Hettiarachchi aliasSarath Silva who had already been handed over to theRatnapura police in August 1990 by the Eheliyagoda police; b)that Wasantha Bandula who had been abducted on 20.8.90was a person wanted in connection with that investigation. Onthis point the learned Solicitor-General relied upon the evidenceof DIG Sirisena Herath and Inspector Wijeratne Banda; c) thatthe first accused-appellant and his team of police officers hadset off from the police station on 20.8.90 on a crime investigationas was evident from the document marked P2. This entry wasrelied upon by the learned Solicitor-General as corroborativeevidence to bolster up Chandrasiri's testimony that theabductors when they pounced upon Wasantha Bandula hadquestioned Wasantha Bandula about a car he had removed fromRatnapura and that the abductors had questioned Chandrasirias well whether he was aware of a car his younger brother hadin his possession; d) that the first accused-appellant and his
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team had thereafter proceeded to Galle on 21.8.90 in order todiscover the car stolen by Wasantha Bandula from Ratnapura.In support of this fact the learned Solicitor-General relied uponthe testimony of Karunaratne a garage owner from Galle.Karunaratne testified that Wasantha Bandula had given a stolencar for repairs and he knew Wasantha Bandula was a personconnected to the on-going case. He further testified that the firstaccused-appellant had come to his garage on 21.8.90 in a jeep,blue in colour and removed the car given to him by WasanthaBandula; e) that at the trial Karunaratne described the firstaccused-appellant as a dark tall person and proceeded to makea dock indentification. The first accused-appellant wanted himto come to the Ratnapura police on the 25 th at 12 o'clock andaccordingly he went to the Ratnapura police accompanied bylawyer Premaratne Tiranagama on 25.8.90 but was turned awayas Inspector Muniratne was not available.
Referring to the dock identification the learned Solicitor-General submitted that the first accused-appellant is a man of"imposing personality" and as such once seen it is not easy toforget him. The learned Solicitor-General invited Court to lookat the first accused who was present in the well of the Court.Taking this to his advantage the learned President's Counsel inhis reply made the first accused-appellant to stand up in thewell of the Court and we observed that he is a six footer and ofdark complexion.
Referring to P3 which is the "in entry" made by the firstaccused-appellant, the learned Solicitor-General submitted thatno entry had been made there by him regarding the car he hadremoved from Karunaratne's garage. The counsel contendedthat P3 is a false entry and therefore this Court should considerP3 as a lie uttered outside Court. For this proposition he reliedupon the principles laid down by Lord Lane in R vs. Lucas,4>.He also referred us to document marked PI which is the runningchart of vehicle No. 32-7311, the vehicle in which the firstaccused-appellant and the police party had left Ratnapurapolice station on 20.8.1990 as shown by the "out entry" P2.
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The learned Solicitor-General laid emphasis on these documentsfor the Court to draw the inference that the first accused-appellant and the police party had in fact gone to the house ofChandrasiri on 20.8.1990 around 10 o'clock, abductedWasantha Bandula and thereafter had proceeded to Galle onthe following day in search of the car Wasantha Bandula hadhanded over to the garage owner Karunaratne. It was furthersubmitted that in view of the strong incriminating evidenceadduced by the prosecution witnesses there is an evidentialburden cast on the first accused-appellant to explain away suchincriminating facts established by the prosecution against him.He referred us to the principles laid down by Lord Ellenboroughin Rex vs. Cockraine{5>.
The learned Solicitor General's principal submission is thatinferentially the cumulative effect of proof of each of thesecircumstances would be to establish the guilt of the first accused-appellant. Albeit, it would be our concern to examine each ofthese circumstances the learned Solicitor-General boldlyasserted and see for ourselves whether the inferences leadingto the guilt of the first accused-appellant are the only rationalinferences that could have been drawn in the circumstancesand that they are irrestible inferences. Vide the judgment ofSirimane, J, Alles, J, and Samerawickrame, J in The Queen vs.Kularatne,6) at 556.
Reacting strongly to this line of arguments adverted to bythe learned Solicitor- General the learned President's Counselfor the first accused-appellant submitted that it is highlyimproper to invite the Court to speculate on matters for whichthere is no evidence. Learned counsel reiterated the fact thatthe learned trial Judge's finding of guilt was based solely on thedock indentification and for justification he had sought refugein the demeanour and deportment of prosecution witnesses.With regard to the fact that the 1st accused-appellant's specialassignment to investigate the involvement of the crime suspectSunil Hettiarachchi, the learned counsel referred us to theevidence of Inspector Wijeratne Banda who has testified that
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he was in charge of this investigation but it was because hewent on leave that the first accused-appellant was sent to actfor him. Vide page 169 of the record. Referring to the submissionthat Wasantha Bandula was a person wanted in connectionwith the investigations, the counsel pointed to the very specificand relevant question on this point put to Wijeratne Banda bythe prosecuting State Counsel and the answer given by thewitness Wijeratne Banda which is to the following effect.
"Q. Was Wasantha Bandula a wanted person in connectionwith the investigations?
A. According to the report such persons*were wanted."
Counsel posed the question: "On this answer can one saywith precision and certainty that Wasantha Bandula was awanted person in connection with the investigations pertainingto the involvement of the crime suspect Sunil Hettiarchchi?" Wedo agree with the President's Counsel that this answer given bythe Inspector of Police is a vague answer and of less evidentialvalue. It was pointed out by the learned counsel that none ofthe police witnesses spoke of a stolen car involved in thisinvestigation (vide evidence of Wijeratne Banda p.167), DIGSirisena Herath, at (p. 144) and ASP Neville Padmadeva at (p. 191of the record). Referring to the learned Solicitor-General'ssubmission that Chandrasiri's evidence lend support to theprosecution case that Wasantha Bandula was abducted inconnection with a car stolen from Ratnapura, it was pointedout by the learned President's Counsel that this position cannotbe accepted because according to the evidence of Sub InspectorPalitha Rohan Siriwardena, Chandrasiri in his first statementto the police has not stated about questioning by the abductorsabout a car stolen from Ratnapura either from WasanthaBandula or him. It was further contended that if there was suchquestioning there is no reason why Chandrasiri failed to disclosesuch a vital matter to his sister Padma Ponnamperuma, lawyerKasthuriarachchi and the mother of the deceased for they didnot speak of Chandrasiri telling them anything aboqt
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questioning him and Wasantha Bandula by the abductors abouta car stolen from Ratnapura. Hence it was contended that thissubmission of the learned Solicitor-General on this point is notsupported at all by the evidence in the case. These counterarguments raised by the learned President's Counsel meritserious consideration by this Court.
In the attendant circumstances of this case, we are temptedto reiterate the wise observations made by Basnayake, CJ inThe Queen vs. M.G. Sumanasena(7). It is to the following effect:
"Suspicious circumstances do not establish guilt. Nordoes the proof of any number of suspiciouscircumstances relieve the prosecution of its burden ofproving the case against the accused beyond reasonable
doubt and compel the accused to give or call evidence
The burden of establishing circumstances which notonly establish the accused's guilt but are alsoinconsistent with his innocence remains on theprosecution throughout the trial and is the same in acase of circumstantial evidence as in a case of directevidence."
The counsel further argued that the dock indentification ofthe first accused-appellant by Karunaratne suffers from thesame inherent weakness attributed to the dock identificationof the other accused-appellants by Chandrasiri, WasanthaKumara and Namal Silva. In view of the visual observations wewere induced to make in the course of the argument by bothcounsel and the reference to the first accused-appellant as aman of "imposing personality", we are persuaded to make adecision on this point. One of the important guidelines set forthby Lord Widgery, Chief Justice in Regina vs. Turnbull &Another(supra) at 228 when examining circumstances in whichthe identification by a witness came to be made is to see whetherthere was any material discrepancy between the description ofthe accused given to the police by the witness when first seenby him and his actual appearance. In Francis Fraser. Robert
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Warrenl8! at 162 the Lord <5hief Justice remarked that "where acrown witness gives evidence on oath in direct contradiction ofa previous statement made by him which is in the possessionof the prosecution it is the duty of counsel for the prosecutionat once to show the statement to the Judge." Lord Widgery, ChiefJustice also sounded the same remark at page 228 in Reginavs. Turnbull & Another (supra). Hence in the interests of justicewe perused that portion of the statement relating to thedescription made by witness Saputantrige Karunaratne to theCID on 25.5.92 recorded by Inspector Kumarasinghe (vide page318 of the record) which is to the effect that the person wasabout 5' 7" tall, fat and of fair complexion. Hence^ve see a materialdiscrepancy between the description of the accused-appellantby Karunaratne in his police statement and his actualappearance which we ourselves observed at the instance ofcounsel. On this point alone we are inclined to reject the evidenceof Karunaratne that it was the first accused-appellant whoremoved the car from his garage on 21.8.90.
The learned Solicitor-General attempted to justify the dockidentification by Karunaratne made after four years on the basisthat Karunaratne possessed a "photographic memory" of thiswhole episode. In the absence of any scientific evidence wherebywe will be satisfied that Karunaratne did possess a"photographic memory" and that the elapse of a long period didnot inhibit his memory of identifying the first accused-appellant,we are unable to agree with this over anxious proposition.
Further, the learned President's Counsel referred us to theconfusion that has arisen as to the identity of the car alleged tohave been stolen from Ratnapura and handed over toKarunaratne and then removed by some person on 21.8.90.There was also confusion whether Wasantha Bandula referredto as an insurance agent by Karunaratne from whom he hadtaken a life policy was the same Wasantha Bandula (referred toas a Wharf Clerk by Chandrasiri) who had been abducted on20.8.90 from Chandrasiri's house. Thus the whole episode isclouded with uncertainties and inconsistencies.
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R vs. Lucas (supra) dealt witli circumstances in whichdefendant's lies told out of Court may provide corroborationagainst him. To apply the principled enunciated by Lord Lanein the instant case the prosecution has to prove beyondreasonable doubt that the first accused-appellant did in fact lieoutside Court. The learned Solicitor-General’s submission wasthat the first accused-appellant's failure to state in the "in-entry"P3 the fact of removing a car from Karunaratne's garage on21.8.90 is a lie uttered outside Court. We have already rejectedthe dock identification of first accused-appellant by Karunaratneand also his evidence that the first accused-appellant removeda car from his garage. Hence, in these circumstances we holdthat Lucas principle has no bearing or application to the factsof this case.
Since the prosecution has failed to relieve its burden ofestablishing circumstances which not only establish the firstaccused-appellant's guilt but are also inconsistent with hisinnocence, we do not think that this is a fit case where LordEllenborough principles could be safely applied. It is pertinentto reiterate with approved the observations made by JusticeAbbott in Rex vs. BurdeW9’ (referred to in Kankanamaratch-chilage Gunadasa vs. The Republic1101.
"No person is to be required to explain or contradictuntil enough has been proved to warrant reasonableand just conclusion against him in the absence ofexplanation or contradiction."
The learned Solicitor-General referred us to document PIwhich is the running chart of jeep bearing No. 32-7311maintained by PC Lionel Ratnasiri which document the learnedtrial Judge had made use of as one of the incriminating items ofevidence against the first accused-appellant. According to thisdocument for the period 20.8.90 to 22.8.90 this vehicle hadcovered Colombo, Mirihana, Fort, Pettah, Maradana, Dehiwela,Pamankada, Nugegoda and Galle. The learned Solicitor-Generalsubmitted that because this entry shows that the vehicle had
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been to Nugegoda and Mirihana the learned trial Judge cannotbe found fault with in coming to the conclusion inferentiallythat the vehicle had proceeded to Chandrasiri's house offTalawatugoda in order to abduct Wasantha Bandula, the reasonbeing that the learned trial Judge was by then satisfied with thetestimony of Chandrasiri, Wasantha Bandula and Namal Silva.
We have already expressed our view that some of thecircumstances relied upon by the prosecution are eitherdemonstrably unreliable or fallacious, whilst others were merelysuspicious circumstances. Hence, the arm of the law cannot bestretched so far as to encompass an inference that the vehiclewould have gone to Chandrasiri's house since P2 has establishedthat the vehicle had gone to Nugegoda and Mirihana duringthat period. The author of P2 Lionel Ratnasiri who was the driverof jeep bearing 32-7311 had been cited as a witness for theprosecution. P2 establied that he had been driving this vehiclefrom the time it set off from Ratnapura on 20.8.90 until its returnon 22.8.90. He would have been the best evidence available forthe prosecution to elicit the relevant details of what took placeduring this period. In the attendant circumstances of this casethis Court entitled to apply the presumption set forth in Section114(f) of the Evidence Ordinance to the non production of LionelRatnasiri's evidence at the trial which is to the following effect:
"That evidence which could be and is not producedwould if produced, be unfavourable to the person whowithholds it."
For the aforesaid reasons we allow the appeal and weproceed to quash the convictions and sentences imposed onthe accused-appellants by the learned High Court Judge.Accordingly we acquit the accused-appellants of all the charges.
HECTOR YAPA, J. (P/CA) – I agree.Appeal allowed.