SAJEEWA ALIAS UKKUWA AND OTHERS v. THE ATTORNEY GENERAL (HOKANDAR CASE)

032-SLLR-SLLR-2004-V-2-SAJEEWA-ALIAS-UKKUWA-AND-OTHERS-v.-THE-ATTORNEY-GENERAL-HOKANDAR-CASE.pdf



scSajeewa alias Ukkuwa and others v The Attorney-General
(Hokandara Case) (Shirani Bandaranayake, J.)
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SAJEEWA ALIAS UKKUWA AND OTHERSvTHE ATTORNEY-GENERAL(HOKANDARA CASE)SUPREME COURTBANDARANAYAKE, J.
YAPA, J.
WEERASOORIYA, J.
JAYASINGHE, J. ANDUDALAGAMA, J.
S.C. APPEAL NO. 112003 (TAB)
H.C. COLOMBO 996119915 AND 18 OCTOBER 2004
Criminal Law – Murder conspiracy – Section 296 read with section 113
and 102 of the Penal Code – Murder of six persons – Section 292read with sections 32 of the Penal Code – Abetment of murder s.292read with s. 102 Penal Code – Robbery of jewellery s. 380 Penal Code- Gang rape – Section 364 (2)of the Penal Code as amended by Act, No.22 of 1995.
Four appellant (accused) were indicted with conspiracy to commit the murderof six persons.They were acquitted on that charge. 1st, 2nd, and 3rd accusedwere indicted with the murder of six persons on the basis of common intention.They were convicted with the said murders except that of one Nissanka. The4th accused indicted with abetment of the said murders was acquitted on thatcharge.The 1st, 2nd and 3rd accused were indicted with robbery of jewellerybelonging to deceased Chandra Priyangani and Chitra Dayangani. The 1st,2nd, 3rd and 4th accused were charged with committing gang rape of ChithraDayangani.They were convicted of these offences.
The matters raised at the appeal were-
entire case for prosecution rested on circumstantial evidence;
reliability of the evidence Jonty
corroboration of the evidence of Jonty
offence of gang rape
The deceased were Lalanadasa, a landed proprietor and a rich farmer, his wifeSriyawathie, daughters, Chandra Priyangani, Chithra Dayangani and NayanaDamayanthi and son Nissanka.
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Amaradasa’s family was hostile to Lalanadasa’s family. The 1st accused wasAmaradasa’s employee, 4th accused was Amaradasa's son; the 2nd and 3rdaccused were friends of the 1st and 4th accused. The 1st to 4th accused,friends were in the habit of harassing the members of the deceased family. Asa result there was a prosecution in the Homagama Magistrate's Court on themorning of the day of the incident in February 1999 against Amaradasa and 1 stand 4th accused. The 1st accused was absent.
As per medical evidence –
Lalanadasa died due to strangulation by a ligature
Sriyawathie died due to a deep cut injury of the neck
Nayana Damayanthi died due to cut injuries on her face and neck
Chandra Priyangani died due to a cut injury of the neck
5Chithra Priyangani had 2 external injuries and one internalinjury
which suggested sexual assault. Death was due to hanging.
6. Nissanka had multiple injuries. Death was due to cut injury of theneck
On receipt of information over the phone of an unusual situation at a house,Inspector Suraweera of the Thalangama police visited the scene at about 11p.m. on 10.02.1999. He observed the bodies of the deceased including ChithraDayangani hanging. There was a condom, an empty packet of cigarettes andcigarette ash in the vicinity. He also found bleeding injuries and a bloodsmeared crow bar against the wall. Nissanka’s body was found in the gardenamong coconut trees and a Kitul club smeared with blood and mud.Amaradasa's body was lying close by in a critical condition. He also died later.
Jonty a close friend of the 4th accused and Amaradasa family visited the sceneof the crime 3 times, viz., around 2 p.m., around 3.30.p.m. and finally around 6p.m. On the 1st occasion he saw the body of Lalanadasa and NayanaDamayanthi when he saw the 1 st, 2nd and 3rd accused inside the house. Onthe second occasion he saw two more dead bodies viz., those of ChandraPriyangani and Sriyawathie. On the 3rd occasion he observed the 1st, 2nd and3rd accused raping Chithra Dayangani whilst she was alive and tied to a bed.When the 3rd accused got off her body, the 4th accused went towards the girlsaying that he too wanted to have sexual intercourse with her. Jonty did not seeNissanka dead or alive in the vicinity.
That afternoon the 4th accused and Jonty had been visiting places. All thesevisits were corroborated by witnesses. Thus Paranavithana spoke to fact thatthey had met him. 4th accused had a packet of cigarettes with him. The 4thaccused and Jonty also wished to have a bath. Jonty told him that accordingto the 4th accused, the 1st accused and others had killed some people atLalanadasa’s house. The 4th accused also confirmed the killing.
Nihal Perera said that Jonty came around 1.30 p.m. and left his slippers at hisplace and went for a bath.
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Premarathne said that the 4th accused visited him at his saloon and left on abicycle borrowed from a boy and returned in 20 minutes.
Paranavithana also said that Jonty and 4th accused went for a bath on thethree wheeler of Chaminda. On their return they had lunch together.
Jonty and the 4th accused were friends. The High Court found that Jonty hadaccompanied the 4th accused but he was not an accomplice.
IP Suraweera’s observation at the scene supported Jonty, especially thefinding of a contraceptive where Jonty saw the 1 st, 2nd and 3rd accused rapingChithra Dayangani. He also found an empty packet of cigarettes in that room.
Further, IP Suraweera found on a statement by the 1st accused, 08 pairs ofgold bangles. In two of them letters “Chandra’’ was engraved. On a statementof the 2nd accused the IP recovered two gold chains and a pendant. The letter“C” was engraved on the pendant. IP Suraweera also found two gold rings inthe 1st accused’s trouser pocket.
According to witness Pushpakumara who had an affair with Chithra Dayangani,the bangles, chains and the rings belonged to the two sisters. All those itemswere found concealed around the house of the 3rd accused.
Police also recovered on the statement of the 1st accused a katty in a trunkbox at his grandfather’s house.
The clothes the 1 st accused was wearing at the time of his arrest had stainslike mud and blood.
Held:
Jonty was not an accomplice and his evidence against the accused iscorroborated
Circumstantial evidence strongly supports the prosecution story.
As per Explanation (1) of section 364(2) of the Penal Code, asamended by Act, No. 22 of 1995, the 4th accused was guilty of “gangrape” as he was not the innocent by stander, but abetted thecommission of rape on Chithra Dayangani.
There is no merit in the appeal.
Cases referred to:
Rex v Exall – (1866) 4 F . Exall 4 F & F pg.4 F 922 at 929
King v Gunaratne – (1946) 47 N.L.R 145 at 149
Arun Kumar v Sfafe of Uttara Pradesh – (1989) Air SC 1445
Promod Mantoi and Others v The State of Bihar Air – (1989) SC 1475
APPEAL from the judgment of the High Court
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Shyamal A. Collure, assigned Counsel for 1 st accused-appellant.
L. Barana Gayan Perera with Prabha Perera for 1 st accused-appellantsRienzie Arsakularatne, P.C. with Harin Gomes, Wasantha Batagoda and ThejaKoralage for 4th accused-appellant.
C.R. de Silva, P.C. Solicitor-General with Palitha Fernando, Deputy SolicitorGeneral and Sarath Jayamanne, Senior State Counsel for respondent.
Cur. adv.vult
November 18, 2004SHIRANI BANDARANAYAKE, J.
This is an appeal filed in terms of section 451 (3) of the Code of 01Criminal Procedure Act, as amended by Act No. 21 of 1998 againstthe conviction and sentences imposed by the judgment of the Trial-at-Bar on the accused-appellants (hereinafter referred to asappellants). Four accused were indicted in respect of six (6)murders committed on the 10th February 1999. The indictmentcontained 24 counts which were as follows:
Counts 1 to 6 were in respect of all accused for conspiringalong with deceased Amaradasa to commit murder of the sixdeceased persons, which were offences punished in terms 10of section 296 read with sections 113(b) and102 of the PenalCode.
All appellants were acquitted of counts 1 to 6 in theindictment.
Count 7 to 12 were against 1st, 2nd and 3rd appellants forcommitting offences of murder of the six (6) deceasedpersons punishable in terms of section 292 read with section32 of the Penal Code.
The 1 st, 2nd and 3rd appellants were convicted on counts 7to 11. They were acquitted of the charge in respect of one of 20the deceased persons, namely, Nissanka. The 1st, 2nd and3rd appellants were sentenced to death in respect of counts7 to 11.
Counts 13 to 18 were against the 4th appellant for aiding andabetting the 1st, 2nd and 3rd appellants for committing theoffences set out in counts 7 to 12 in the indictment.
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The 4th appellant was acquitted of counts 13 to 18.
Count 19 was against the 1st, 2nd and 3rd appellants forcommitting the offence of robbery of jewellery belonging toone of the deceased, namely, Chandra Priyangani,punishable in terms of sections 380 of the penal code.
The 1st, 2nd and 3rd appellants were convicted on count 19and were sentenced to 10 years rigorous imprisonment.
Count 20 was against the 1st, 2nd 3rd appellants forcommitting the offence of robbery of jewellery belonging toone of the deceased, namely, Chithra Dayangani,punishable in terms of Section 380 of the Penal Code.
The 1st, 2nd and 3rd appellants were convicted on count 20and were sentenced to 10 years rigorous imprisonment.
Count 21 was against the 1st appellant for committing gangrape on one of the deceased, namely, Chithra Dayangani,an offence punishable in terms of section 364(2) of thePenal Code as amended by Act, No. 22 of 1995.
The 1st appellant was convicted on the count of gang rapeand was sentenced to 20 years rigorous imprisonment.
Count 22 was against the 2nd appellant for committing gangrape on one of the deceased, namely, Chithra Dayangani,an offence punishable in terms of section 364(2) of the penalcode as amended by Act, No.22 of 1995.
The 2nd appellant was convicted on the count of gang rapeand was sentenced to 20 years rigorous imprisonment.
Count 23 was against 3rd appellant for committing gangrape on one of the deceased, namely, Chithra Dayangani,an offence punishable in terms of section 364(2) of the penalcode as amended by Act, No. 22 of 1995.
The 3rd appellant was convicted on the count of gang rapeand was sentenced to 20 years rigorous imprisonment.
Count 24 was against the 4th appellant for committing gangrape on one of the deceased, namely, Chithra Dayangani,an offence punishable in terms of section 364(2) of thePenal Code as amended by Act, No 22 of 1995.
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The 4th appellant was convicted on the count of gang rapeand was sentenced to 20 years rigorous imprisonment.
All sentences of imprisonment against each of the accused were torun consecutively.
THE INTRODUCTIONAt the time of the incident, which took place in February 1999,the deceased family was living at Amaragoda Road, Hokandara.
This family consisted of six members: the father, VithanageLalanadasa was a farmer and owned a large extent of land in the 7ovillage. His wife Kollurage Siriyawathie was house-wife who hadgiven birth to 3 daughters and one son. Out of the three daughters,the eldest, Chandra Priyangani after completing her GCE(Advanced Level) Examination had been following a course inChartered Accountancy. At the time of the incident she wasfunctioning as an Accounts Clerk attached to the SumathiPublishers. Nissanka, the only son of Lalanadasa family wasworking as a technician in a private firm. The third in the family,Chithra Dayangani was an undergraduate, studying for a Degree inBachelor of Commerce in the University of Sri Jayawardanepura. soThe youngest in the family, Nayana Damayanthi, was a studentenrolled in an Accountancy Course.
The deceased Lalanadasa and Amaradasa were neighbours.
The 4th appellant was the son of Amaradasa whereas the 1stappellant was his employee. The 2nd and 3rd appellants werefriends of the 1st and 4th appellants. The Amaradasa family andLalanadasa family have not been in good terms and it appears thatthe two families have had constant and long standing quarrels.There were allegations levelled against the Amaradasa family thatthey and their employees have been harassing the members of the goLalanadasa’s family. The evidence also revealed that the family ofLalanadasa’s was considered to be of a higher social standingamong the villagers. The members of the Lalanadasa familyhowever, did not associate others in the village very closely.
On the day of the incident Siriyawathie and Chandra Priyanganiwere present in the Magistrate’s Court, Homagama as witnesses ina case where they had made a complaint to the police. Due to
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continuous harassment meted out by the members of the family ofAmaradasa, Lalanadasa had made several complaints to the policeand based on one of such complaints, the Thalangama police hadinstituted action in the Magistrate’s Court, Homagama againstAmaradasa, the 1st appellant, 4th appellant and two other persons.This case was called in the Magistrate’s Court, Homagama on theday of the incident and only Amaradasa and the 4th appellant hadbeen absent on this occasion.
On the night of 10.02.1999, one Wanniarachchige Don NihalChandraguptha, who was residing at Boralesgamuwa, hadtelephoned one Dhammika Hingunearachchi who resided atAmaragoda Road, Hokandara. When he telephoned her for thesecond time that night around 8.10 p.m., it appeared toChandraguptha that she was frightened and on making inquiriesshe had informed him that there is an unusual situation at a nearbyhouse, where the dogs are barking and the cows are mowing.Chandraguptha had taken down the address of the particular housein question and had unsuccessfully attempted to contact the policestation at Athurugiriya. Thereafter he had telephoned the police,station at Thalangama around 8.30 p.m. and had informed themabout the suspicions that have been aroused by the unusualsituation that prevailed in the house situated at Amaragoda Road,Hokandara.
After receiving the said information, Inspector Suraweera of theThalangama police had arrived at the said house around 11.00 p.m.No sooner the police jeep was parked, Inspector Suraweera hadseen a woman, namely, Meemanage Siriyawathie and a child,namely, Buddhika Viranga, after emerging from the compoundrunning towards the road through it’s gate. As their behaviouraroused suspicion and the fact that they could not answer thequestions put to them correctly, the police had detained both ofthem in the jeep.
When Inspector Suraweera entered the house from the backdoor a light was on and he discovered the dead body ofLalanadasa in a sitting position inside a large wooden box whichwas used to store paddy. His hands and legs were tied with a coirrope. In a corridor adjoining that room, where Lalanadasa’s body
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was found, he saw the bodies of Siriyawathie and ChandraPriyangani lying on the floor. They had bled from the wounds ontheir necks and between the two dead bodies there was a crowbarabout 6 feet long kept against the ‘corridor- wall’. There had beenblood on the upper part of the said crowbar. In another roomhanging from the hinge of the door frame, the Inspector found the 140dead body of Chithra Dayangani. Her hands were tied from behind,her face was down and the body was touching the floor. TheInspector found that there was blood, a condom, an empty packetof cigarette ash in the vicinity. Thereafter the Inspector found thebody of Nayana Damayanthi behind the toilet at the back of thehouse. Her body was covered with arecanut branches and therewere cut injuries on her neck. Later about 30 meters away from thehouse, he found Nissanka’s body lying between the coconut trees.There was blood as well as smears of mud on Nissanka’s clothes.
The police found a ‘kitul’ club which was smeared with blood and 150mud. Lying quite close to Nissanka’s body the Inspector foundAmaradasa who was in a critical condition.
According to the Post-Mortem Reports (X13, X19, X27, X31,
X32 and X34) the causes of death of the victims were as follows:
1. Lalanadasa
Siriyawathie
Nayana Damayanthi
Chandra Priyangani
Chithra Dayangani
13 external injuries and 1 internalinjury.
Death due to strangulation by aligature.
3 injuries.
Death due to haemorrhage following 160deep cut injury on the neck.
injuries.
Death due to haemorrhage followingcut injuries to the face and to theneck.
external injuries.
Death due to cut injury on the neck.
2 external injuries and 1 internalinjury with injuries suggestive ofsexual assault.170
Death due to hanging.
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6 Nissanka- 11 external injuries and 2 internal
injuries.
Death due to cut injury on the neck.
THE CASE FOR THE PROSECUTION
The case of the prosecution rests entirely on the evidence ofwitness W.W. Jayanatha, alias Jonty (hereinafter referred to asJonty) who was a close friend of the 4th appellant as well as theAmaradasa family. On the day of the incident, Jonty accompaniedby the 4th appellant had visited the residence of Lalanadasa on 3 isooccasions. All three visits had been on the request of the 4thappellant.Jonty had clearly stated that on his first visit to theresidence of Lalanadasa,he had not known as to what washappening there. Since the first visit to Lalanadasa’s house with the4th appellant, Jonty had found it difficult to refuse to accompany thelatter in the other visits, as the 4th appellant was pleading to Jontyto be with him since they were close friends.
According to Jonty he visited the residence of Lalanadasa for thefirst time on the day of the incident with the 4th appellant around 2p. m. At that time he had seen only the bodies of Lalanadasa and 190Nayana Damayanthi. Jonty had seen at that time the 1st, 2nd, and3rd appellants were inside the house. He had visited the saidresidence of Lalanadasa for the second time around 3.30 a.m., withthe 4th appellant. On that occasion once again he had observedtwo more dead bodies which later he identified as the bodies ofChandra Priyangani and Siriyawathie.
Chandra Priyangani and Siriyawathie had been at theMagistrate’s Court of Homagama in the morning of the incident andthis position has been clearly established by the court officer at theMagistrate’s court of Homagama.The sequence of events therefore 200indicates that Lalanadasa and Nayana Damayanthi had been killedbefore Siriyawathie and Chandra Priyangani returned from theMagistrate’s Court of Homagama.
The 3rd and the last visit made by Jonty to the scene of crimewith the 4th appellant was around 6.00 p.m. When he was atLalanadasa’s house Jonty had seen Chithra Dayangani being
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raped by the 1st, 2nd and 3rd appellants. According to Jonty at thetime she was being raped, she was alive.
Although Jonty made three (3) visits to Lalanadasa’s residence,he did not see Nissanka either alive of dead in the vicinity. 21cNissanka’s colleagues from his place of work had testified that hewas at work until about 8.00 p.m. on the day of the incident.
The respondent contended that there is no evidence either director circumstantial as to the manner in which Nissanka came to hisdeath. When the police visited the residence of Lalanadasa on theinformation they had received, after searching the house when theycame across four dead bodies, one of the neighbours had informedthe police that there was another person in the Lalanadasa family.
The police had searched the garden which was about 2 acres inextent where they found Nissanka’s body around 3.00 a.m. There 220:had been evidence suggestive of Nissanka having first fought withhis assailants. The police also found Amaradasa lying on theground in the vicinity with injuries to which he succumbed onadmission to the National Hospital, Colombo.
The day after the incident on 11.02.1999, on information thepolice had arrested the 1st, 2nd and 3rd appellants at the residenceof the 3rd appellant which was about 1 kilometer from the scene ofcrime. The police, although was looking for the arrest of the 4thappellant, he could not be found in the village and when the trialwas half way through he surrendered to the High Court. 23cConsidering the submissions made on behalf of the appellants aswell as for the respondent, four main questions or issues haveemerged which would need closer examination. They could belisted as follows:-
the entire case for the prosecution is relied on circumstantialevidence;
reliability of the evidence of Jonty;
evidence of corroboration of the testimony of Jonty;
the offence of gang rape.
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(I) THE ENTIRE CASE FOR THE PROSECUTION ISRELIED ON CIRCUMSTANTIAL EVIDENCELearned Counsel for the 1st appellant submitted that the main itemsof evidence against the 1st appellant were fourfold which includedthat;
the evidence of Jonty who is alleged to have seen the1st appellant thrice at the scene of crime on the day ofthe incident;
the recovery of 8 bangles belonging to two of the victimson a statement alleged to have been made to the policeby him;
the recovery of a katty in a trunk box at his grandfather’shouse on a statement alleged to the have been made tothe police by him; and
the clothes he was wearing at the time of his arrest (awhite short sleeved shirt and a pair of trousers) hadstains like blood and mud.
Learned counsel for the 2nd and 3rd appellants submitted that theprosecution relied on a finger prints placed on a tin of biscuits. Itwas contended that there were other finger prints on the said tin ofbiscuits which were not identified by the registrar of finger printsand only one thumb print had matched with the 2nd appellant’sthumb print.The reason for the said thumb print to appear on the tinof biscuits according to the learned counsel for the 2nd and 3rdappellants was due to the fact that the 2nd appellant was asked tohold the said tin of biscuits on his head while he was beingassaulted at the police station.
Considering the circumstantial evidence placed before the court, itis to be noted that, there were several items that were recoveredand produced in terms of section 27 of the Evidence Oridinance.These items included the following:
(a) Consequent to a statement made by the 1st appellant, IPSuraweera had recovered 8 pairs of bangles, two of whichwere made out of gold. In the inner surface of one of thosebangles ‘Chandra’ was engraved. Chandra happened to beone of the deceased females.
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Consequent to a statement made by the 2nd appellant twogold chains and a pendant were recovered. The letter 'Cwas found engraved on the pendant.
At the time 3rd appellant was arrested, IP Suraweera found
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In the inner surface of one of those rings the letter ‘C’ wasfound engraved.
The bangles, chain, pendant and the rings were identified asbelonging to the two sisters by witness Nandana Pushpakumara,who had been having an intimate relationship with the deceasedChithra Dayangani prior to her death. According to the witness,some of the items were gifted by him to the deceased. All the itemsof Jewellery were found concealed at places around the house ofthe 3rd appellant and the accused were arrested at this place.
The evidence before Court clearly established the motive 290against the appellants. Thelst appellant was an employee of thefather of the 4th appellant. The 1st, 2nd, 3rd and the 4th appellantswere close friends.Several witnesses have given evidence to theeffect that the members of the family of the 4th appellant as well asthe 1st appellant who was their employee have been harassing thedeceased family on numerous occasions. This fact is corroboratedby the numerous complaints made by the deceased family to policerequesting them to inquire into the said allegations. In fact the casewhich was taken up at the Magistrate’s court of Homagama in themorning on the fateful day was an action filed by the police on one 300of the complaints made by the deceased against the appellants. Inthat case there were charges against the 1st appellant, the 4thappellant and the 4th appellant’s father. The 1st appellant was notpresent in Court on that day and the inference that could be drawnfrom this conduct would be that, he had a mission to accomplish ata different location. The evidence of Ekmon, reveals not only thatthe 1st, 2nd, 3rd, and 4th appellants were close friends, but also thaton numerous occasions he had seen four of them togetherharassing the members of the deceased family.
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RELIABILITY OF THE EVIDENCE OF JONTY
Learned counsel for the 2nd and 3rd appellants contended thatJonty was the only eye-witness who said in evidence that, he hadseen the appellants inside the house,and further that the appellantswere involved in the said murders. Learned Counsel for theappellants submitted that as Jonty was with the appellants, there isno reliability that could be placed on his evidence.
However, the evidence before Court clearly indicates that Jontycould not be treated an accomplice and his evidence rejected onthe basis of non-reliability for the following reasons.
Jonty and the 4th appellant were friends from their childhoodand had attended the same school until the latter entered anotherschool for his General Certificate of Advanced Level Examination.In fact Kusumawathie, who was a witness for the defence said inevidence that Jonty was a frequent visitor at the 4th appellant’sresidence and that whenever the family of the 4th appellant went ontrips, Jonty used to join them. Therefore, it is obvious that there hasbeen a very close relationship between Jonty and the 4th appellant.
Jonty had met the 4th appellant on the day of the incident(10.02.1999) around 2.00 p.m., near a saloon which belonged toone Indika Pradeep. The saloon was situated near the HokandaraJunction. The 4th appellant had a packet of cigarettes in his handand he had wanted Jonty to come with him on a mission. He hadnot revealed as to what this specific mission was. Thereafter the 4thappellant borrowed a bicycle from a boy who had come to thesaloon and both of them had gone on that bicycle. On their way, the4th appellant had told Jonty that the 1 st appellant is at Lalanadasa'shouse and that he had wanted the 4th appellant to bringcigarettes.Thereafter they had decided to keep the bicycle at thefurthest point they could go on it and had kept it at the residence ofone Nihal Perera. After handing over the cigarettes to the 1stappellant, the 4th appellant and Jonty had left Lalanadasa’sresidence, came to Nihal Perera’s residence to collect the bicycleand the pair of slippers and had gone back to the saloon to returnthe bicycle.
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The 4th appellant and Jonty had before going to HokandaraJunction had gone to Jonty’s house and there they had met AjanthaParanawithana who was known as Aje Aiya. Paranawithana’s hadrequested them to join him for a bath. Three of them along with athree- wheeler driver known as Chaminda had gone to a nearbylake for a bath. Thereafter, Jonty and the 4th appellant had lunch at 350Paranawithana’s residence.
Jonty and thelst appellant had thereafter gone to the latter'sresidence and left around 3.30 p.m. When they were proceedingpast the residence of Lalanadasa, the 1st appellant had made asound to get their attention and had requested them to come. Aftera while they had left and the two of them had gone to the schoolground. Jonty had at that stage joined Ajantha Paranawithana andother friends to play cricket. The 4th appellant, who generally joinsthe group, did not do so on that day and after about 10 minutes hehad called Jonty to visit Lalanadasa’s residence, once again. 360
On this occasion, which was around 6.00 p.m. Jonty had seenChithra Dayangani being raped by the 1st ,2nd and 3rd appellants.According to Jonty he was standing near the entrance to the roomwhere Chithra Dayangani, who was an undergraduate, being tiedup to a bed with her face upwards. Jonty has categorically statedthat Chithra Dayangani was alive at the time she was raped by the1 st, 2nd and 3rd appellants and he had said that from the place hewas standing he could clearly see what was happening inside theroom. According to Jonty, no sooner the 3rd appellant got out of herbody, the 4th appellant had gone towards the helpless girl saying 370that he too wants to have sexual intercourse with her. At this stageJonty claims that he did not wish to remain there any longer and hadgone to the rear of the house. From there he had seen Amaradasa,the father of the 4th appellant coming towards the house. ThenJonty had informed the 4th appellant and both of them had left thehouse from the front entrance and had gone to the HokandaraJunction.
The sequence of- events that took place in that fateful dayreveals that Jonty had accompanied the 4th appellant mainly due tothe friendship he had with him and after the first visit to 380Lalanadasa’s residence, and knowing quite well as to what hadtaken place, Jonty realized that he was at a point where he couldnot refuse to accompany the 4th appellant.
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The evidence also reveals that it was not unusual for Jonty and4th appellant to have lunch at Paranawithana’s house. This fact hasbeen clearly admitted by Paranawithana in his evidence. Moreoverthe fact that Jonty was with the 4th appellant since 2.00 p.m. on theday of the incident has been corroborated by all the witnessesreferred to by Jonty. The prosecution had summoned all thesewitnesses Jonty had referred to at various stages and thesewitnesses have corroborated the evidence of Jonty on all materialpoints.
It also to be borne in mind that after having lunch on the day ofthe incident at Paranawithana’s house, Jonty and the 4th appellanthad met Amaradasa. At that stage, according to Jonty, the 4thappellant had informed Amaradasa that the 1st appellant along withothers had killed two persons at Lalanadasa’s house. The 1stappellant it is to be noted was an employee of Amaradasa and the1st appellant was to be present before the Magistrate’s CourtHomagama on a complaint made by the members of theLalanadasa family. The animosity between the two families hasbeen proved beyond any reasonable doubt. In such circumstanceswhen the 4th appellant brought to the notice of his father about thedeaths at their enemy’s house, the father told his son to be withJonty at the latter's place. It is to be noted that Amaradasa did notshow any sign of suspicion of shock when he heard about thegruesome murders. Furthermore, it is common ground that the 1stand N4th appellants as well as Amaradasa were rivals of theLalanadasa Family. Nevertheless, it is seen that they have beenentering and departing from Lalanadasa’s residence without anytrepidation. They had used both the rear entrance as well as thefront entrance for this purpose. If not for their knowledge that therewould not be any one to challenge their presence, would they havemoved so freely to their arch rival’s residence?
After the third and the fourth visit to Lalanadasa’s house, Jontyhad gone to Paranawithana’s residence. Prior to that according toJonty he and the 4th appellant had met Paranawithana nearHokandara junction. Jonty had seen the 4th appellant speaking toParanawithana. When Jonty was on the way to Paranawithana’shouse, in the three-wheeler belonging to the latter, Paranawithanahad informed Jonty that the 4th appellant had told him that 1st
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appellant and the others had killed some people at the residence ofLalanadasa. He had inquired from Jonty as to the truth of thisstatement. Paranawithana in his testimony had confirmed that the4th appellant had told him that some people were killed atLalanadasa’s residence.
Learned counsel for the 1st appellant submitted that the Trial-at-Bar had erred in fact and in law in evaluating Jonty’s evidence in thelight of the intrinsic improbabilities and discrepancies found in hisevidence and it is therefore necessary to consider whether such 430evidence is corroborated in material particulars as regards tokillings.
E. R. S. R. Coomaraswamy (The Law of Evidence, Vol. I,pg. 18) in considering the value and advantages and demerits ofcircumstantial evidence has stated that the use of circumstantialevidence is criticized on the ground that it is not reliable evidence,However, he is of the view that,
“But it would be going too far to say that it is never safe totrust circumstantial evidence in the entire absence of direct,for there are many crimes which are committed under *40circumstances which preclude the possibility of directevidence being given, but which yet allow of a perfectly safeinference being drawn from surrounding circumstances. Therisk of perjuring is minimized, since circumstantial evidence,unlike direct evidence, does not depend on the veracity ofwitnesses. It is less capable of fabrication.”
It is also to be borne in mind that the English decisions haiveevolved a set of principles and rules of caution which have been 9followed in Sri Lankan cases. Consideration of circumstantialevidence has been vividly described by Pollock C.B. in Rv Exa/A1) 451cited in King v GunaratneW in the following words:
“It has been said that circumstantial evidence is to beconsidered as a chain, and each piece as a link in the chain,but that is not so, for then of any one link breaks, the chainwould fall. It is more like the case of a rope comprised ofseveral chords. One strand of the rope might be insufficient tosustain the weight, but three strands together may be quite ofsufficient strength. Thus it may be in circumstantial evidence
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SC(Hokandara Case) (Shirani Bandaranayake, J.)279
there may be a combination of circumstances, no one ofwhich would raise a reasonable conviction or more than amere suspicion; but the three taken together may create aconclusion of guilt with as much certainty as human affairscan require or admit.”
The items of circumstantial evidence referred to earlier whichcomprise of the finger print on the tin of biscuits, recoveries in termsof section 27 of the Evidence ordinance, and the evidence of motivecombined with the various incidents that took place on the day inquestion as related by Jonty creates a case of “a rope not with asingle strand but of several strands”.
(Ill)EVIDENCE OF CORROBORATION OF THE TESTIMONYOF JONTY
Paranawithana corroborated the evidence of Jonty and statedthat on the day of the incident, he had seen Jonty and the 4thappellant around 2.00 p.m. near the Hokandara Junction. At thattime the 4th appellant had a packet of cigarettes in his hand.According to Jonty he had visited Lalanadasa’s residence around
p.m. with the 4th appellant as the latter had to hand over a packetof cigarettes. This was Jonty’s first visit to the said house on thatfateful day.
Paranawithana in his evidence had stated that he had seen Jontyand the 4th appellant together for the second time on that day whenhe accompanied them for a bath with another person know asChaminda. Jonty had referred to the said visit for a bath in hisevidence.
Paranawithana had also stated that he met Jonty and the 4thappellant for the third time on the day in question in the evening. Atthat time the 4th appellant had informed him that the 1st appellant andothers have killed some people at the residence of Lalanadasa.According to Paranawithana, he had inquired from Jonty as to thetruth of such a statement and Jonty had confirmed that it was true.
Nihal Perera who gave evidence stated that Jonty came to hisresidence around 1.30 p.m. on the day of the incident and had wantedto leave his pair of slippers at his place. According to Nihal Perera, hehad seen Jonty walking towards the paddy field that leads to
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Lalanadasa’s residence. It appears that the 4th appellant had takenthe precaution to be away from Jonty and Nihal Perera, as he wasfully aware as to what was going on at Lalanadasa’s residence. Onthe other hand Jonty was not aware of the killings and that would havebeen one reason for him to have left the slippers at Nihal Perera’sresidence without any trepidation. According to Nihal Perera, soon 50cafter Jonty visited his house, he had gone for a bath and on his returnhe had found that the pair of slippers had been taken away. NihalPerera’s version thus corroborated the position taken by Jonty aboutthe time he had spent at Lalanadasa’s house.
Indika Pradeep Premarathne, owned a saloon at the HokandaraJunction. In his evidence he confirmed that on the day in question,Jonty and the 4th appellant had come there around 2.00 p.m. The 4thappellant had borrowed a bicycle from a boy who had come for ahaircut and he had returned it about 20 minutes later.
The observation made by IP Suraweera at the scene of incident is 510important to be considered as it corroborates the description given byJonty. IP Suraweera had observed that on entering the house ofLalanadasa through the rear door, Lalanadasa’s body was inside awooden box which is used to store paddy. The dead body was in asitting position with its neck slanted to a side and tied with a rope withthe other end tied to one of the legs of the box. He had also seen thebodies of Siriyawathie and of Chandra Priyangani lying in the corridorwith bleeding injuries. IP Suraweera had found a contraceptive in thefront room where Jonty had stated that he had seen 1 st, 2nd and 3rdappellants raping Chithra Dayangani. He had also observed an empty 52apacket of cigarettes in that room, witness Ekmon in his evidence hadstated that he had known Lalanadasa and both the father and the sonwere non-smokers. According to IP Suraweera, the body of ChithraDayangani was not inside the room, but was found hanging from thedoor hinge of adjoining room. It appears that after raping thedeceased, they had hung the body on the door hinge using a piece ofwire and a rope.
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Jonty had stated that, the 1st, 2nd and 3rd appellants one afterthe other had raped Chithra Dayangani. The Judicial MedicalOfficer who had carried out the post mortem had described theinjuries on the vagina of the deceased and had categorically statedthat the injuries were indicative of either one person having sexualintercourse with the girl several times or many persons havingsexual intercourse with her. This corroborates without anyreservation, the evidence of Jonty who stated that the 1st 2nd and3rd appellants raped Chithra Dayangani one after the other.
The acceptability and the trustworthiness of Jonty’s evidencecould be easily ascertained by examining the evidence he hadgiven with regard to the lay out of the Lalanadasa’s residence andnot speaking of the death of Nissanka. Jonty was a person whohad never visited Lalanadasa’s residence prior to the date of theincident. He had made three visits on that fateful day and thedescription given by him on the lay out of the interior of the housetallies correctly with the observations made by the investigatingofficers. According to Jonty’s evidence, he visited Lalanadasa’sresidence between 2.00 p.m. and 6.00 p.m. on the day of theincident. Jonty has never spoken to the fact of seeing Nissanka’sbody during that period. There is evidence to indicate that Nissankawas at his work place at Borella until about 8.00 p.m. on that day.Jonty would not have had the opportunity of seeing Nissanka’sbody as he had died only after 8.00 p.m. and Jonty’s last visit wasmade well before 6.00 p.m.
THE OFFENCE OF GANG RAPE
Counts 21 to 24 of the indictment deal with charges of gang rapepreferred separately against each of the appellants. All of themwere convicted on the count of gang rape and were sentenced for20 years rigorous imprisonment.
Learned President’s Counsel strenuously argued that, on aconsideration of the evidence of Jonty it cannot be established thateither the 4th appellant committed rape or that he aided or abettedany of the appellants to commit rape. Learned President’sCounsel’s position was that, when the 4th appellant arrived at thescene of the offence along with Jonty, the victim was already tiedwith her hands and legs apart and gagged and the 1st appellantwas committing the sexual act.
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Learned President's Counsel contended that there is noevidence to indicate that the 4th appellant had committed rape onthe said deceased and that there is no evidence to show that the4th appellant abetted any other person to commit rape. He furthersubmitted that, the learned Trial Judges have misdirected 570themselves by coming to the conclusion that, in order to prove gangrape under our law, prosecution must only establish that theappellant was a member of the gang at the time when the act ofrape was committed. Learned President’s counsel also stated thatlearned Trial Judges have further misdirected themselves byconsidering the Indian decision of Aruna Kumar v State of UttaraPradesH® which was a case dealing with abduction under section336 of the Indian Penal Code, and citing this case as a case layingdown principles pertaining to gang rape as set out in section 376of the Indian Penal Code.580
Sections 363 and 364 of the Penal Code dealt with the offenceof rape and the punishment for the said offence. Section 363 statedthat,
“A man is said to commit ‘rape’ who, except in the casehereinafter excepted, has sexual intercourse with a womanunder circumstances falling under any of the five followingdescriptions…"
Prior to the amendment in 1995, section 364 of the Penal Codedealt with the punishment for rape. Under that law the offenceexclusively dealt with a single person committing rape. These two 590section were amended by the Penal Code (Amendment) Act, No 22of 1995. By this amendment the legislature had brought in theconcept of gang rape. Learned President’s Counsel for the 4thappellant contended that the only object of introducing gang rapewas to enhance the sentence and the liability would be only onpersons of a group who committed the offence of rape or who hadabetted the offence of rape.
Section 13 of the Penal Code (Amendment) Act, No 22 of 1995deals with section 364 of the principle enactment and by thatsection, section 364 is repealed and a new section is substituted. 600The substituted section reads as follows;
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“364(1)- Whoever commits rape shall,
except, in the cases provided for in sub-section (2) and (3),be punished with rigorous imprisonment for a term not lessthan seven years and not exceeding twenty years and withfine, and shall in addition be ordered to pay compensation ofan amount determined by court to the person in respect ofwhom the offence was committed for the injuries caused tosuch person.
(2)Whoever-6io
(a)(b)
(c)(d)(e)(f)
commits gang rape,
shall be punished with rigorous imprisonment for a term notless than ten years and not exceeding twenty years and withfine and shall in addition be ordered to pay compensation of 620an amount determined by court to the person in respect ofwhom the offence was committed for the injuries caused tosuch person…."
The aforementioned Section also refers to 3 Explanations and1st Explanation which is on gang rape is on the following terms:
“Explanation 1,
Where the offence of rape is committed by one or morepersons in a group of persons, each person in such groupcommitting, of abetting the commission such offence isdeemed to have committed gang rape.”630
Prior to the Penal Code (Amendment) Act of 1995, there was nooffence of gang rape. Although learned President’s Counsel was ofthe view that the purpose of the amendment to section 364 of thePenal Code was to enhance the punishment, a careful perusal of
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the amended section indicates that the present law makesprovision not only to enhance the punishment for the offence, butmore importantly to make members of a group, liable when theoffence of rape or abetment of rape is committed by one or moremembers of such group.
Under the old law, section 363 clearly referred to a single person 640committing the offence of rape. The meaning of that section wasquite clear that it dealt with only a single person and the provisionwas made to ascertain whether there was consent by the women.
The amendment on the other hand, categorically includes morethan one person and this is clearly in the Explanation I to theamended Section. According to Explanation I, there are severalingredients that are necessary to be looked into concerning theoffence of rape. They are:
assembly of a group of persons;
rape committed by one or more persons of such group; 650
some members in such group abetting the commissionof rape.
It appears that amendment to section 363 of the Penal Codewas taken from the Indian Penal Code. Section 367(2)g of theIndian Penal Code refers to gang rape and Explanation I which isreproduced below is on this particular offence.
“Where a woman is raped by one or more in a group ofpersons acting in furtherance of their common intention, eachof the persons shall be deemed to have committed gangrape.”660
The object in introducing gang rape, including the Explanationand its applicability was explained by the Indian Supreme Court inPromod Mahto and others v The State of Bihar <4) in the followingwords:
“This Explanation has been introduced by the legislature witha view to effectively deal with the growing menace of gangrape. In such circumstances, it is not necessary that theprosecution should adduce clinching proof of a completedact of rape by each one of the accused on the victim or oneach one of the victims when there are more than one in 670order to fine accused guilty of gang rape and convict themunder section 367, IPC.”
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In Promod Mahto’s case (supra), sixteen (16) accused wereprosecuted for committing offences punishable in terms of sections367 and 320 read with section149 of the Indian Penal Code. It wasthe case of the prosecution that A1 to A5 entered the housewhereas A6 to A16 stood outside. Out of A1 to A5; A1 to A4committed rape on the victim while A5 stood as guard. Then all ofthem removed the cash and articles from the house and left theplace .The trial Court convicted A1 to A4 under section 367 680independently and A5 constructively by invoking Explanation I.TheHigh Court confirmed the convictions and sentences of A1 to A4,but reduced the sentence of A5. Considering the appeals made tothe Supreme Court, they reduced the sentence of A1 to A4 solelyon the basis of facts and circumstances of the case, but stated that,
“…Once it is established that the accused had acted inconcert and raped the prosecutrix then all of them would beguilty under section 367 in terms of Explanation I to clause(g) of sub-section (2) of section 367, I PC, irrespective ofwhether she had been raped by one or more of them.” 690
Although Arun Kumar and another v State of Uttar Pradesh(supra) did not deal with the the charge of rape, but on the chargeof abduction in terms of section 366 of the Indian Penal Code, thereare other binding authorities which deals with the offence of rape(section 376 of the IPC) in Indian Case Law, >as Pramod Mahto,referred to earlier, is a case in point.
It is to be born in mind that there is a noticeable differencebetween the Explanation given in terms of Section 376 of the IndianPenal Code and the Explanation given under the amended section364(2) of our Penal Code. (Section 13 of the Penal Code 700[Amendment] Act, No. 22 of 1995). According to the Explanationgiven in the Indian Penal Code, it is necessary for the persons tohave acted ‘in furtherance of their common intention’ whereas nosuch requirement is needed in terms of our law.
Accordingly, in terms of the Penal Code (Amendment) Act, thereis no need for a member of a group of persons to be held liable foran offence of gang rape, to establish that each member of thegroup acted with a common intention to commit the said offence.What is necessary is to establish that the accused had been
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purpose of making all the members of the group liable when one or 730more persons of that group had committed the offence of rape orhad abetted the commission of the offence of rape.
In the instance case, there is no difficulty in deciding as to theculpability of the 4th appellant as there were several items ofcircumstantial evidence which clearly indicated that the 4thappellant was not a mere bystander, but in fact had abetted thecommission of the offence of gang rape by the 1st, 2nd and 3rdappellants by intentionally aiding them. Such circumstantialevidence included the following:
The 4th appellant was the son of Amaradasa and their family 740and the deceased members of the Lalanadasa family had beenarch rivals for a considerable period of time. In fact even on the dayof the incident the 4th appellant had to be present at theMagistrate’s Court, Homagama on a complaint made to the policeby the members of the Lalanadasa family.
In the circumstance, it would have been unthinkable for the 4thappellant to have made several visits to the residence of his

members in the group and had either committed rape or had 710abetted the said crime. Once it is established that one of theaccused had committed the offence of rape and there has beenaiding and abetting, then all of them would be guilty under section364(2)g in terms of Explanation I of the Penal Code (Amendment)
Act, No. 22 of 1995 irrespective of the fact that whether the victimwas raped by more than one of them. In fact the Sinhala version ofthe amended section 364 of the Penal Code, which is reproducedbelow, explains clearly that the amendment as contended by thelearned President’s Counsel for the 4th appellant, was not only forthe enhancement of the punishment for the offence but also to 720include the offence of gang rape which would bring in the liability formore than one person:

Accordingly, it is clear that, the word ‘in a group’ which in the
was included for the
Sinhala version used as
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family’s sworn enemy’s without any fear or trepidation, if he was notaware that no one of that household is alive to bring any harm tohim. Moreover, if there was no plan discussed among themselvesthere was no need for the 4th appellant to have brought cigarettesfor the 1st appellant. The latter, after all,was an employee of hisfather and the 4th appellant would have been fully aware as to whatwas happening at Lalanadasa’s residence. Moreover, when the 4thappellant visited the said house for the third time, he saw veryclearly that there was a helpless girl tied to a bed and beingsexually abused by three others who are known to him quite well.If the 4th appellant was not aware of what was taking place, wouldhe have reacted in the manner he had behaved? There were noquestions asked by the 4th appellant and he has not shown anykind of shock that would have been expected from a person whowas not aware of such incidents talking place. Instead when the 3rdappellant came out of the room where the girl was being abused,what was the reaction of the 4th appellant? Learned President’sCounsel conceded that the 4th appellant had uttered the following
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was aware that the others had planned to sexually abuse the 4thappellant stood watching the helpless girl being brutally abused byhis father’s employee and his friends and by his utterance and hisconduct the 4th appellant had expressed his approval of theactivities that were taking place at Lalanadasa’s house.
Considering the circumstances, would it be possible to treat thepresence of the 4th appellant at the time the offence wascommitted, as a mere by stander who was observing some peopleengaged in the act of sexual abuse on a girl? It is to be bom inmind that at no stage did the 4th appellant show any disagreementor disapproval of the action taken by the 1 si, 2nd and 3rd appellants.There were no signs of protest. The 4th appellant however, stoodwatching the offence of rape being committed and clearlyexpressed his desire and willingness to follow suit and to take histurn.Accordingly the 4th appellant’s supportive presenceundoubtedly amounted to intentional aiding and in suchcircumstances it is clear that he cannot be treated as a person whowas only an innocent observer of the incident of sexual abuse on ahapless victim.
words:
This certainly implies that he too

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On a consideration of the totality of the evidence I am of the viewthat the conduct of the 4th appellant clearly falls within theExplanation I of section 364(2).
Learned President’s Counsel for the 4th appellant contended thatin the event this appeal being dismissed, we should consider 790whether the sentence imposed on the 4th appellant is appropriate orwhether it could be mitigated. He submitted that as a result of thisincident the 4th appellant, who was 17 years of age at that time, losthis education entirely. Considering his young age and fact that therehas been no previous conviction, learned President’s Counsel forthe 4th appellant submitted that it is inappropriate to impose themaximum sentence prescribed by law for a first offender.
The 4th appellant, as stated earlier, was not a mere observer ofthe incident which took place at Lalanadasa’s house. Consideringthe relationship between the 1st appellant and the 4th appellant, the soolatter was in a position to prevent this incident taking place. Instead,by his actions he had given the necessary support for the others tocommit the offence.
It is not disputed that a first offender should receive some kindof mitigation of sentence in most offences. As pointed out byProfessor Andrew Ashworth (Sentencing and Criminal Justice – 3rdEdition, pg. 141) there is good and valid reason for dealing moreleniently with an offence that can be interpreted as an isolatedlapse. However Professor Ashworth is of the view that,
“Where the first offence is grave, there might be little reason 810to make a concession to human frailty – there are sometemptations or feelings to which one must simply not giveway.”
The 4th appellant was found guilty and was convicted forcommitting the offence of gang rape in terms of section 364(2) ofthe penal Code as amended. Gang rape as stated earlier is anoffence which involves more than one person. Peter Hungerford-Welch refers to such offences when more than one person isinvolved and states that,
“When more than one person is involved in the commission 820of an offence, the fact that more than one person was
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SC(Hokandara Case) (Shirani A. Bandaranayake, J.)289
involved may make the offence more serious. A mugging bya gang is worse than a mugging carried out by one person(Criminal Litigation and Sentencing, 4th Edition, pg. 541).”
The 4th appellant therefore in my view was involved in thecommission of an offence which was of a serious nature and Icannot see any reason for mitigation of his sentence.
On a consideration of the totality of the evidence, I see no meritin any of the ground urged by learned Counsel on behalf of theappellant.830
For the aforementioned reasons, the appeal is dismissed and
the convictions entered and the sentences imposed are affirmed.
YAPA, J.-Iagree.
WEERASURIYA, J.-Iagree.
JAYASINGHE, J.-Iagree.
UDALAGAMA, J.-Iagree.
Appeal dismissed.