018-SLLR-SLLR-2007-V-2-SAMY-AND-OTHERS-v.-ATTORNEY-GENERAL-BINDUNUWEWA-MURDER-CASE.pdf
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SAMY AND OTHERSvATTORNEY-GENERAL (BINDUNUWEWA MURDER CASE)SUPREME COURTWEERASURIYA, J.
JAYASINGHE, J.
UDALAGAMA, J.
DISSANAYAKE, J.
FERNANDO, J.
SC 20/2003 DB
HC COLOMBO 763/2003 (TAB)
NOVEMBER 12, 23, 29, 30, 2004JANUARY 5, 2005FEBRUARY 2, 2005
Penal Code sections 30, 31, 42, 138, 139, 146, 297, Murder – Unlawfulassembly – Lucas Principle – Ellenborough dictum – discussed – illegalomission – Failure to take action – Police Ordinance section 56 – Policeinaction – Exercising discretion bona fide and to the best of one's ability – Canthe officer be faulted?
The case was tried against 41 accused before a Trial at Bar (TAB) upon anindictment containing 83 counts. 18 accused were called upon for their defenceand at the conclusion of the trial 13 were acquitted; 5 were convicted andsentences imposed. The charges were sequel to the killing of 27 detainees andinjuring 14 detainees at the Rehabilitation Center at Bindunuwewa.
sc
Samy and Others v
Attorney-General (Bindunuwewa Murder Case)
217
In appeal,
It was contended that, the evidence only established the presence of the
accused-appellants at the scene, and the TAB had wrongly applied the 'Lucas
principle and the Ellenborough principle’.
Held:
It is settled law that mere presence of a person at the place where themembers of an unlawful assembly had gathered for carrying out theirillegal common objects does not make him a member of such assembly.The presumption of innocence would preclude such a conclusion.
The finding of the TAB that the 1 st accused-appellant was present at thecommencement of the attack is erroneous for there was no evidence tothat effect. It is not prudent to rely on the evidence of Wickremasinghe —he has given false evjdence to sustain a verdict of guilt pronounced onthe 2nd defendant-appellant. The visit to the camp by the 3rd defendant-appellant was motivated by curiosity on the information that the detaineeswere attacking the villagers.
The 'Lucas principle' is that falsehood uttered in Court or outside Courtby a defendant could be taken as corroboration of the evidence against adefendant. It is not justifiable to hold that the 3rd accused-appellant knewthat if he told the truth, he would be sealing his fate. There was noallegation that he had given false evidence and insufficient evidencealthough the name he gave was false.
The prosecution had failed to establish a strong prima facie case againstthe 3rd accused-appellant which warrants the application of the‘Ellenborough dictum.’
There is no an illegal omission – or intentional failure to comply with theduty imposed by law by police officers. Having regard to the departmentorders, if the Offlcer-in-Charge has exercised his discretion bona fide andto the best of his ability, he cannot be faulted for the action he has takeneven though it may appear that another course of action could haveproved more effective in the circumstances.
APPEAL from the judgment of the Trial at Bar.
Cases referred to:Kulatunga v Mudaiihamy 42 NLR 331
Andrayesv Queen 67 NLR 425
flex v Lucas 1981 2 All ER 1008
Karunanayake v Karunasin Perera 82 2 SLR 27
flex v Cocharane 1814 Gurneys Report 499.
Inspector Arendstz v Wilfred Peiris 10C.L.W. 121
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fl v Seeder Silva 41 NLR 337
King v Wickramasinghe 42 NLR 313
King v Peiris Appuhamy 43 NLR 41010. King v Endoris 46 NLR 490
11 .King v Abeywickrama 44 NLR 254
Dr. Ranjith Fernando for 1st, 2nd and 3rd accused-appellants.
D. S. Wijesinghe PC with Priyantha Jayawardena, Chandrika Silva and K.Molligoda for the 4th accused appellant.
C. R. de Silva PC Solictor General with Sarath Jayamanne SSC and P.Nawana SSC for the respondent.
Cur.adv.vult.
May 27, 2005
WEERASURIYA, J.
This case was tried against 41 accused before a Trial-at-Barupon an indictment containing 83 counts. For convenience 83counts in the indictment could be classified into five groups in termsof the alleged offences based on two different principles of criminalliability, as follows;-
Count 1 of the indictment alleged that on or about 25th October
2000 Bindunawewa, Bandarawela, the accused along withothers unknown to the prosecution were members of anunlawful assembly, the common object of which was to causehurt to the detainees of the Bindunuwewa Youth Rehabilitationand Training Centre and thereby committed an offencepunishable under section 140 of the Penal Code.
Counts 2-22 of the indictment alleged the commission of theoffence of murder of 27 detainees (named in the indictment) bythe members of the said unlawful assembly in the prosecutionof the common object of the said unlawful assembly or wassuch that the members of the said unlawful assembly knew tobe likely to be committed in the prosecution of the said objectand thereby committed an offence punishable under section296 read with section 146 of the Penal Code.
Counts 29-42 of the said indictment alleged the commission of
the offence of attempted murder of 14 detainees (named in theindictment) by the members of the said unlawful assembly inthe prosecution of the common object of the said unlawful
Samy and Others v
SC Attorney-General (Bindunuwewa Murder Case) (Wasrasuriva. J.) 219
assembly or was such that the members of the said unlawfulassembly knew to be committed in the prosecution of the saidobject, and thereby committed an offence punishable undersection 300 read with section 146 of the Penal code.
Counts 43-69 of the indictment alleged the commission of themurder of 27 detainees (named in the indictment) by theaccused along with others unknown to the prosecution andthereby committed an offence punishable under section 296read with section 32 of the Penal Code.
Counts 70-83 of the indictment alleged the commission of theoffence of attempted murder of 14 detainees (named in theindictment) by the accused along with others unknown to theprosecution and thereby committed an offence punishableunder section 300 read with section 32 of the Penal code.
The prosecution led the evidence of 58 witnesses comprisingofficials of Bindunuwewa Rehabilitation Camp, senior Policeofficers in charge of the area, Army officers who came to assist thepolice to disperse the crowd, certain Police officers who were onduty at the time of the attack, most of the detainees who survivedthe attack, several villagers, Medical officers who conducted thepost-mortem and medico-legal examinations in respect of thedeceased and injured detainees, and Police officers whoconducted investigations.
At the close of the prosecution case on 21/06/2003, 23 accusedlisted on the indictment were discharged on the application madeby the State on the basis that there was no evidence against them.The remaining 18 accused were called upon for their defence andat the conclusion of the trial 5th, 7th, 12th, 15th,19th, 25th, 33rd ,34th, 35th, 36th, 38th, 39th and 40th, were acquitted of all thecharges. 4th, 13th, 21st, 32nd and 41st accused were convictedon 1st, 2nd – 16th. 29th, 30th, 31st, 33rd, 35th- 37th, 38th, 39th,41st and 42nd counts, and following sentences were imposed onthem:-
Counts 2-16 death sentenceCount 1-6 months R.l.
Count 29-1 year R.l.
Count 30-7 years R.l.
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Count 31-3 years R.lCount 33-2 years R.lCount 35-2 year R.lCount 36-1 year R.lCount 37-1 year R.lCount 38-3 years R.lCount 39-2 years R.lCount 41-1 year R.lCount 42-1 year R.l
They were also fined Rs. 1000/- each on counts 30,31, 33, 38, and39 of the indictment.
General comments
It is to be noted that the foregoing charges were a sequel to thekilling of 27 detainees and injuring 14 detainees at the RehabilitationCenter at Bindunuwewa on 25.10.2000.
The first three accused-appellants who were residents ofBindunuwewa village, had been convicted on account of theirmembership of the unlawful assembly with the common object ofcausing hurt to the detainees of the Rehabilitation Camp and therebyattracting vicarious liability in terms of section 146 of the Penal Code inrespect of the charges in the indictment.
The 4th and 5th accused-appellants being Police Officers who wereon guard duty around the camp on 25.10.2000 were found guilty on thebasis of the illegal omissions and positive (illegal) acts for having aidedand abetted the commission of offences set out in the indictment andthereby rendered themselves to be members of the unlawful assemblyresulting in criminal liability in terms of section 146 of Penal Code.Accordingly items of evidence with regard to the villagers (1st, 2nd and3rd accused-appellants) would differ from the evidence presented bythe prosecution against the police officers (4th and 5th accused-appellants). Thus the complicity of the two groups as classified abovewill be considered separately under two different heads in thisjudgment. In fact Trial-at-Bar had proceeded to examine the evidencein respect of the accused based on the same classification.
At the hearing of this appeal on the application of the learnedSolicitor General, 5th accused-appellant was acquitted of all chargespreferred against him.
Samy and Others v
SC Attorney-General (Bindunuwewa Murder Case) (Weerasuriya, J.) 221
Submission on behalf of 1st-3rd accused-appellantsLearned counsel for the above appellants submitted that the Trial-at-Bar had failed to consider the following circumstances and therebymisdirected itself in imputing vicarious liability on the 1 st – 3rd accused-appellant:
that the evidence led against the 1 st-3rd accused-appellantsonly established their presence at the scene on 25/10/2000.
that the evidence disclosed that there was a ‘news’ that Tigerswere attacking the village and due to that raison there was alarge gathering of villagers ranging from a minimum of 500 to 3-4 thousand at various points at various times.
that the Trial-at-Bar had wrongly applied the “Lucas principle"and the "Ellenborough principle” in respect of these accused-appellants.
The situation at the Rehabilitation Camp on 24th night as abackground to the Incident
On 24th night when Headquarters Inspector Jayantha Seneviratnecame to the camp on the information he received that there was acommotion in the camp and that the detainees had tried to grabweapons from the officers, the villagers had assembled near the camp.They (the villagers) had received the information that Lt. Abeyratne hadbeen attacked and injured and that the Police post inside the camp hadbeen abandoned which were factually correct. The crowd witnessedthe remnants of the Police post being removed and the detaineesabusing the Police and throwing stones. The villagers had planned tostage a peaceful Satyagraha opposite the camp on the followingmorning, for removal of the camp. Accordingly posters were seen allover the town calling for the removal of the camp on the followingmorning.
The police sought the assistance of the army and Lt. Balasuriya whocame with a platoon of 24 men around 8.50 p.m. dispersed the crowdand left around 1.30 a.m.
Commencement of the unlawful assembly
Evidence led at the trials reveals that the villagers had assembled on25th morning, in large numbers. As the crowds continued to swell therewere reports of traffic congestion and blocking of roads. The number of
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villagers gathered on 25th morning had been estimated varyingbetween a minimum of 500 to three to four thousand people.
The detainees were seen inside the camp by Capt. Abeyratnewalking along with clubs in their hands. The detainee Asokhan hadconceded that they (detainees) carried clubs, rods, iron poles, knivesand axes.
The incident of stone throwing which took place on 25th morningfrom both sides were not considered as a threat to the detainees asconceded by Ltd. Abeyratne.
It was evident that the immediate cause for the attack by a sectionof the crowd was the provocative act of the detainees, in charging intothe crowd with clubs, rods and stones in their hands. The crowd havingretreated for a moment which reflected a moment of having gotfrightened, nevertheless broke into camp with all their fury from theVidyapeeta site. It is from this point one could assert with justificationthe commencement of the unlawful assembly with the common objectof causing hurt to the detainees.
Law relating to membership of unlawful assembly and vicariousliability
Section 138 of the Penal Code defines an unlawful assembly. Forthe purpose of this case it is sufficient to state that an unlawful assemblyof five or more persons is designated an unlawful assembly, if thecommon object of the persons comprising that assembly is to commitany offence.
Section 139 of the Penal Code provides that" whoever, being awareof facts which render any assembly an unlawful assembly, intentionallyjoins that assembly or continues in it, is said to be a member of anunlawful assembly”.
The effect of this section was considered in the early case ofKulatunga v Mudalihamy 0) where it was held that the prosecution mustprove that there was an unlawful assembly with a common object asstated in the charge. So far as each individual is concerned, it had to beproved that he was a member of the assembly which he intentionallyjoined and that he knew the common object of the assembly.
The vicarious liability imputable on the basis of being a member of
Sarny and Others v
SC Attorney-General (Bindunuwewa Murder Case) (Weerasuriya, J.) 223
an unlawful assembly as provided for in section 146 of the Penal Codereads as follows:-
“If an offence is committed by any member of an individual assemblyin prosecution of the common object of that assembly or such as themembers of that assembly knew to be likely to be committed inprosecution of that object every person who at the time of thecommitting of that offence, is a member of the same assembly is guiltyof that offence.”
In terms of that section, for vicarious liability to be imputed on themembers of an unlawful assembly the prosecution must prove either:-
that the offence was committed in prosecution of the common
object of the unlawful assembly, or
that the members of the unlawful assembly knew that theoffence was likely to be committed in prosecution of thecommon object.
(Vide Andrayes v Queen <2))
It is well settled law that mere presence of a person in an assemblydoes not render him a member of an unlawful assembly, unless it isshown that he has said or done something or omitted to do somethingwhich would make him a member of such an unlawful assembly orwhere the case falls under section 139 of the Penal Code.
Dr. Gour in Pena/ Law of India discusses the law in respect ofunlawful assembly as follows: (Vot.lt page 1296-11th Edition)
“All persons who convene or who take part in the proceeding of anunlawful assembly are guilty of the offenoe of taking part in anunlawful assembly. Persons present by accident or from curiosityalone without talking any part in the proceedings are not guilty ofthat offence, even though those persons possess the power ofstopping the assembly and fail to exercise it.
“Mere presence in an assembly does not make such a person amember of an unlawful assembly unless it is shown that he haddone something or omitted to do something which would make hima member of an unlawful assembly or unless the case falls under
section 142 I. P.CIf members of the family of the appellants
and other residents of the village assembled, such persons could
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not be condemned ipso facto as being members of that unlawfulassembly. It would be necessary therefore for the prosecution tolead evidence pointing to the conclusion that all the appellants haddone or been committing some overt act in prosecution of thecommon object of the unlawful assembly. Where the evidence asrecorded is in general terms to the effect that all these persons andmany more were the miscreants and were armed with deadly
weapons like guns, spears axes etc., this kind of omnibus
evidence has to be very closely scrutinized in order to eliminate allchances of false or mistaken implication."
Dr. Gour at page 1299 states that "The first thing to
remember in cases of this nature is that where a large numberof persons has assembled and some of them resort to violenceor otherwise misbehaved it need not necessarily mean thatevery one of the persons present actually shares the opinions,intentions or objects of those who misbehave or resort toviolence.
"In fact the possibility of some of the persons actually resentingor condemning the activities of the misguided persons cannotbe ruled out. Caution should therefore be exercised whiledeciding which of the persons present can be safely describedas members of an unlawful assembly. Although as a matter oflaw, an overt act on the part of a person is not a necessaryfactor bearing upon his membership of an unlawful assembly,in a case of this nature it will be safer to look for some evidenceof participation by him before holding that he is a member ofthe unlawful assembly".
It would be helpful to reproduce the following passages fromRATANLAL and DHIRAJLAL’s Law of Crimes dealing with the sameissue. (Vol.1) (24th Edition pages 598 and 599).
"It is settled law that mere presence of a person at the place wherethe members of unlawful assembly had gathered for carrying outtheir illegal common objects does not make him a member of suchassembly. The presumption of innocence would preclude such aconclusion. Whether a person was or was not a member of unlawfulassembly is a question of fact".
Samy and others v
SC Attorney-General (Bindunu-wewa Murder Case) (Weerasuriya, J) 225
“Whenever in uneventful rural society something unusualoccurs, more so where the local community is faction ridden anda fight occurs amongst factions, a good number of peopleappear on the scene not with a view to participating in theoccurrence but as curious spectators. In such an event merepresence in the unlawful assembly should not be treated asleading to the conclusion that the person concerned waspresent in the unlawful assembly as a member of the unlawfulassembly. Vicarious liability would attach to every member of theunlawful assembly if that member of the unlawful assemblyeither participates in the commission of the offence by overt actor knows that the offence which is committed was likely to becommitted by any member of the unlawful assembly inprosecution of the common object of the unlawful assembly andbecomes or continues to remain a member of the unlawfulassembly. If one becomes a member of the unlawful assemblyand his association in the unlawful assembly is clearlyestablished, his participation in commission of the offence byovert act is not required to be proved if it could be shown that heknew that such offence was likely to be committed inprosecution of the common object of the unlawful assembly. Butwhile finding out whether a person was a curious spectator or amember of an unlawful assembly it is necessary to keep in mindthe life in a village ordinarily uneventful except for smallsquabbles where the village community is faction ridden andwhen a serious crime is committed people rush just to quenchtheir thirst to know what is happening.
“Where a large crowd collected, all of whom are not shown to besharing the common objects of the unlawful assembly, a strayassault by any one accused or any particular witness could notbe said to be an assault in prosecution of the common object ofthe unlawful assembly so that the remaining accused could beimputed the knowledge that such an offence was likely to becommitted in prosecution of the common object of the lawfulassembly.
“A mere innocent presence in an assembly of persons does notmake the accused a member of an unlawful assembly, unless itis shown by direct or circumstantial evidence that the accused
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shared the common object of the assembly. Thus a Court is notentitled to presume that any and every person who is proved tohave been present near a riotous mob at any time or to havejoined or left at any stage during its activities is in law guilty ofevery act committed by it from the beginning to the end or thateach member of such a crowd must from the beginning haveanticipated and contemplated the nature of the illegal activitiesin which the assembly would subsequently indulge. In otherwords it must be proved in each case that the person concernedwas not only a member of the unlawful assembly at some stagebut at all the crucial stages and that he shared the commonobject of the assembly at all these stages. It is not uncommonthat an unruly crowd on the rampage may contain somemiscreants who may go beyond the common object and commitad hoc crimes graver than the mob had as its objective."
ASSESSMENT OF CULPABILITY OF 1ST – 3RDACCUSED-APPELLANTS
(A) 1st accused-appellant (Munasinghe Arachchige Sammy)
The evidence which is seemingly incriminatory against the 1staccused-appellant emanates from two witnesses namely Ariyasenaand Piyasena. These two witnesses had arrived at the scene attwo different times and speak to facts and circumstances after theattack on the camp had virtually ended which was evident by thefact that when they arrived at the scene billets were on fire. Asbetween Ariyasena and Piyasena, the first to arrive at the scenewas Ariyasena.
E.A.C. Ariyasena, a postman attached to Makulella Post Officeon his way to work around 7.00 a.m. on 25.10.2000 had seen alarge gathering of people around the camp. After his work he cameback to the camp around 8.20 or 8.30 and found two billets on fireand crowd of 3000 – 4000 people gathered at various points,namely, Vidyapeeta grounds, near the gate and around the camp.In his view the crowd inside the camp, was in the region of 700*800,who were armed with clubs. Driven by a desire to ascertain theplight of the detainees, some of whom were known to him, heentered the camp through the cemetery side and saw a young boyfalling on to the fire and rescued that boy. Soon thereafter anotherboy came and informed him that the injured boy was his brother.
Sarny and others v
SC Attorney-General (Bindunu-wewa Murder Case) (Weerasuriya, J.) 227
Ariyasena looked for some water and went towards the kitchen andhaving failed to find some water he took the boys along the edge ofthe ground, when someone struck him a blow on his back. Onturning round he saw a crowd of about 20-30 armed with clubs,among whom was the 1 st accused-appellant.
The Trial-at-Bar had erroneously stated that after receiving ablow on his back when Ariyasena turned round he saw only the 1staccused-appellant armed with a club which could lead to a wronginference being drawn that it was the 1st accused-appellant whostruck Ariyasena when he was taking the two boys to a safer place(page 66 of the judgment)
There was another item of evidence which could give a differentcomplexion in respect of the attitude of some people who weregathered inside the camp, towards the detainees, if viewed inproper perspective. Ariyasena disclosed that he called for helpfrom a person whom he described as “Hitchchi” to take the injuredboys to Vidyapeeta grounds and he (Hitchchi) obliged even thoughwith some reluctance, (vide Vol. V pages 2152 and 2164). It mustbe noted that the people inside the camp were found armed withclubs (vide Vol. V.P2134).
The question may be justifiably posed as to why 1st accused-appellant did not assist Ariyasena to take the injured boys out of thecamp, if he was only an innocent villager. It has to be recalled thatAriyasena did not seek assistance from the 1st accused-appellantand someone in the crowd had shouted whether Ariyasena was atiger. This would show that there were some elements inside thecamp who had strong feelings against the detainees. Therefore thedifficult question is how to distinguish between people who formedthe unlawful assembly to cause hurt to the detainees, and theinnocent villagers who had came there to witness the incident whocould be falling into the category of “Hitchchi", due to thecircumstances peculiar to this case, which would be enumeratedlater in the judgment.
The Trial-at-Bar had observed that if Sammy (1st accused-appellant) had no intention to cause hurt to the detainees withoutgoing into the camp with a club in hand at the commencement ofthe attack, he could have moved out of the camp. Accordingly
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Trial-at-Bar was of the view that 1st accused-appellant's presenceinside the camp at the commencement of the attack armed with aclub, was sufficient to draw the inference that he was a member ofthe unlawful assembly with the object of causing hurt to thedetainees.
The finding of the Trial-at-Bar that the 1st accused-appellantwas present at the commencement of the attack is erroneous forthe reason that there was no evidence to the effect. The evidenceof Piyasena does not support the proposition that the 1st accused-appellant was near the camp with a club in hand at thecommencement of the attack. It is to be emphasized that Piyasenahad arrived at the camp between 9.00 and 9.30 a.m. and he hadseen the 1st accused-appellant near Sugathan mama’s boutiquewhich was 150 meters away from the camp. It is manifest thatwhen Piyasena came to Sugathan Mama’s boutique the attack wasalmost over and the billets were on fire. This is evidenced by thefact that Captain Dematapitiya who arrived at the camp after 9.45a.m. dispersed the crowd assembled near Sugathan Mama'sboutique. It must be noted that within 20 minutes after the arrivalof Piyasena, the army had come and dispersed the crowd.Therefore there was no evidence to suggest that the 1 st accused-appellant was found near the camp by Piyasena, at thecommencement of the attack on the camp, having assembled nearSugathan Mama’s boutique.
It is to be noted that the Trial-at-Bar too had observed at page27 of the Judgment that when Piyasena arrived at the scene thecamp was on fire and detainees were 'finished’ implying that theywere not alive by that time.
On an overall examination of the evidence, the presence of alarge gathering of people ranging from a minimum of 500 personsto three to four thousand persons in and around the camp could bedue to several reasons. It was revealed that among the gathering,were a Buddhist Priest of the temple, women, students ofVidyapeeta and ordinary villagers (vide evidence of Piyasena). Thereasons for the unusual gathering of people could be summarizedas follows:-
Sarny and others v
SC Attorney-GeneraI (Bmdunu-wewa Murder Case) (Weerasuriya, J.) 229
the incident on 24th night involving detainees whichculminated in,the removal of the Police Post;
the news that the detainees who were suspected of havingconnections with the L.T.T.E. taking control of the camp;
the information that the Deputy Commander of the camp Lt.Abeyrathne had been injured due to an attack by a detainee.
the decision of the villagers to stage a peaceful satyagrahain the morning calling upon the authorities to remove thecamp from Bindunuwewa and the publication of posters inthe town to that effect.
The fear and anxiety of villagers about their safety and thecuriosity to know as to what is happening in the camp.
In view of the circumstances peculiar to this case asenumerated above which has generated an unusual interestamong the villagers in respect of the incident at the camp, it isjustifiable to expect a group of innocent villagers who may or notform the majority to gather without any intent of causing hurt to thedetainees. In the circumstances it would be safer to look for someevidence of participation by each person alleged to be a memberbefore holding such person as a member of the unlawful assembly,lest innocent persons be punished for no fault of theirs although asa matter of law an overt act is not a necessary factor bearing uponmembership of an unlawful assembly.
In the light of the material adverted to in the precedingparagraphs I am of the view that it is unsafe to arrive at a findingthat the 1st accused-appellant was a member of the unlawfulassembly with the object of causing hurt to the detainees named inthe indictment.
(B) 2nd accused-appeltant (Sepala Dassanayake)
The evidence to impute liability on the 2nd accused-appellantemanates from Wickramasinghe Banda, a technical officer ofVidyapeeta (Training College). He testified that he saw 2ndaccused-appellant coming out of the main entrance of the campwith a club in hand.
He admitted in his evidence that his statement to the C.I.D. wasbased mainly on the facts disclosed to him by the Vice Chancellor
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and other villagers. He referred in particular to the fact that it wasfrom the Vice Chancellor that he came to know that the 2ndaccused-appellant was armed with a club. He admitted that hegave false evidence in Court for fear of reprisal by the villagers.Nevertheless at a subsequent stage of his evidence he stated thathe actually witnessed the incident and that his evidence was notfalse or hearsay.
Having regard to the material on which he gave false evidencein respect of the 2nd accused-appellant, it is not prudent to rely onhis evidence to sustain a verdict of guilt pronounced on the 2ndaccused-appellant.
3rd accused-appellant (Rajapakse Mudiyanselage Prema-
nanda)
The evidence against the 3rd accused-appellant emanates from
the following witnesses:-
Don Sugath Jayantha
Rick Anderson
Dr. E.A.G. Wijeratne
The 3rd accused-appellant had gone with Sugath Jayantha andPadmananda to the Camp as they had heard that the detaineeswere attacking the village. The 3rd accused-appellant had alightedfrom the vehicle near the Agricultural Training center and had goneinto the camp where there was a commotion. After about 15minutes he had come running with a bleeding wrist injury statingthat he had cut his hand by an aluminum sheet. He had takentreatment for the injury from Dr. Anderson and given his name asSiripala.
The Trial-at-Bar had held that since 3rd accused-appellant hadstayed inside the Camp for about 10-15 minutes, he should explainas to how he got injured; his subsequent conduct namely, giving afalse name to Dr. Anderson raises suspicion and that he tried tocover up as to how the injury occurred.
There is no dispute that the 3rd accused-appellant had gone intothe camp and stayed there for 10-15 minutes and that he hadreceived a cut injury whilst he was inside the camp.
Samy and others v
SC Attorney-General (Bindunu-wewa Murder Case) (Weerasuriya, J.) 231
It is to be noted that the suggestion to go to the camp had comefrom Padmananda who accompanied Jayantha and the 3rdaccused-appellant and the reason for that was given byPadmananda himself that the detainees were attacking the village.On their way to the camp they had refrained from discussinganything pertaining to the incident in the camp suggestive of anypositive act either offensive or defensive in nature. It would appearthat their visit to the camp was solely motivated by curiosity on theinformation that the detainees were attacking the village. Thisattitude is clearly reflected by the fact that the 3rd accused-appellant had gone into the camp unarmed.
Lucas principle
The prosecution sought to apply the principle laid down in Rexv Lucad?) and followed in the local case of Karunanayake vKarunasiri Pererd4>. The principle laid down in Lucas case was thatstatements made out of Court which are proved or admitted to befalse in certain circumstances amount to corroboration. Liesproved to have been told in Court by a defendant is equally capableof providing corroboration.
It is to be noted that a lie told out of court, or in court to becapable of amounting to corroboration must satisfy the followingrequirements:-
It must be deliberate
It must relate to a material issue
The motive for the lie must be a realization of guilt and fearof the truth
The statement must be clearly shown to be lie by evidenceother than that of the accomplice who is to be corroborated,that is to say by admission or by evidence from anindependent witness
There is no doubt that the 3rd accused-appellant had given afalse name to Dr. Anderson in seeking treatment for his injury foundon the wrist area. There is no explanation either from SugathJayantha or from the 3rd accused-appellant for giving a false nameto the doctor. What has to be ascertained is whether the motive forthe falsehood by the 3rd accused-appellant was the realization of
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the guilt and a fear of the truth. In other words the court has toascertain whether he knew, that if he told the truth, he would besealing his fate.
Neither Dr. Anderson nor Dr. Wijeyratne who examined 3rdaccused-appellant on 30th November rejected the proposition thatthe injury found on his wrist area could be caused by an aluminiumsheet. In fact Dr. Wijeyratne had confirmed that such an injury couldbe caused by a sharp edged surface. Therefore there is no materialto reject the assertion by the 3rd accused-appellant that the injurywas caused by an aluminum sheet. It would appear that Dr.Anderson had been satisfied with the statement made by Jayanthathat the injury found on the 3rd accused-appellant was caused byan aluminium sheet. There was no evidence to suggest that Dr.Anderson had inquired from the 3rd accused-appellant as to themanner the injury was caused.
There was no allegation that the 3rd accused-appellant hadgiven a false address or insufficient address although the name hegave was false. Dr. Anderson had noted in his register that thepatient named Siripala was brought by Sugath Jayantha, the vandriver known to him.
In this situation the identity of the 3rd accused-appellant couldbe readily obtained from the person who brought him for treatment.Accordingly it is difficult to state that by giving his name as Siripalahe could effectually prevent his identify being established. In thecircumstances it is not justifiable to hold that the 3rd accused-appellant knew that if he told the truth, he would be sealing his fate.Further there was no material to suggest of an attempt being madeto suppress the evidence of Jayantha relating to the visit to theBinunuwewa camp on 25.10.2000.
The rule laid in Rex v Lucas (supra) is that a falsehood utteredin Court or outside court by a defendant could be taken ascorroboration of the evidence against a defendant. The evidencewhich is sought to be corroborated by the alleged false statementis the evidence of Sudath Jayantha that the 3rd accused-appellanthad gone into the camp unarmed and after 15 minutes he hadcome out of the camp with a cut injury on his right wrist area.
Samy and others v
Attorney-General (Bindunu-wewa Murder Case) fWeerasuriva. J.) ^33
Nevertheless the question is on these facts whether anirresistible inference couJd be drawn that he intentionally joined anunlawful assembly with the common object of causing hurt to thedetainees.
Ellenborough dictum
It was contended by the prosecution that by applying the dictumof Lord Ellenborough, in R. v Cochrand5), it was obligatory on the3rd accused-appellant to offer an explanation as to the manner hereceived an injury on his wrist area.
It is necessary to examine the dictum of Lord Ellenborough inRexv Cocharane (supra) which reads as follows:-
"No person accused of crime is bound to offer any explanationof his conduct or of circumstances of suspicion which attach tohim, but nevertheless, if he refuses to do so where a strongprima facie case has been made out and when it is in his powerto offer evidence, if such exist in explanation of such suspiciousappearances, which would show them to be fallacious andexplicable consistently with his innocence, it is a reasonable andjustifiable conclusion that he refrains from doing so only from theconviction that the evidence so suppressed or not adducedwould operate adversely to his interest"
This dictum has been applied in Sri Lanka both in cases ofcircumstantial and direct evidence. It must be noted that in thefollowing cases this dictum was applied where a strong prima faciecase had been made out against the accused.
Inspector Arendstz v Wilfred Peiris <6>
R. v Seeder Silva (7)
King v Wickramasinghe <&)
King v Peiris Appuhamy <9>
King v Endoris <10>
On a careful survey of these cases it is manifest that a conditionprecedent to the application of this dictum is that there must exist astrong prima facie case made out against the accused.
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[20071 2 Sri LR
In the instant case the purported incriminating circumstancesagainst the 3rd accused-appellant relied upon by the prosecutionwere as follows:-
that he was inside the camp for about 10-15 minutes and
that he came running with a bleeding injury on his wrist.
As against these purported incriminating circumstances therewere other circumstances as well, enumerated below which requirecareful consideration before one arrives at a decision whether astrong prima facie case has been made out:
that the suggestion to visit the camp originated fromPadmananda, the other van driver
that the information relating to the situation in the camp wasprovided by Padmananda
that no discussion took place on their way to the camp olany action contemplated by the 3rd accused-appellant
that he went inside the camp unarmed
that at the time he went into the camp there was acommotion
that he came out running with a bleeding injury stating thatit was caused by an aluminum sheet
that there was no medical evidence to contradict theposition that the injury was not consistent with having beencaused by an aluminum sheet
that aluminum sheets were found inside the camp.
Having examined the totality of the aforementionedcircumstances I am of the view, that the prosecution had failed toestablish a strong prima facie case against the 3rd accused-appellant which warrants the application of the dictum of LordEllenborough.
ConclusionsFor the aforementioned reasons the convictions entered against1 2nd and 3rd accused-appellants cannot be sustained.
Samy and others v
SC Attorney-General {Bindunu-wewa Murder Case) (Weerasuriva. J.) 235
Accordingly I allow their appeals and set aside the convictions andsentences in respect of 1st, 2nd and 3rd accused-appellants andacquit them of all charges preferred against them.
(II) ASSESSMENT OF CULPABILITY OF 4th ACCUSED-APPELLANT(4th accused-appellant – Senaka Jayampathy Karunasena)Submissions on behalf of 4th accused-appellant
Learned President’s Counsel for the 4th accused-appellantsubmitted that the Trial-at-Bar had seriously misdirected itself onthe following matters in assessing the culpability of the 4,h accused-appellant in respect of the charges levelled against him.
That the charges based on unlawful assembly aremisconceived in respect of the 4th accused-appellant sincethere was no factual or legal basis to have joined him alongwith the unruly crowd as members of the unlawful assembly.
That the prosecution must establish necessary mens rea inrespect of illegal omissions and positive (illegal) acts toimpute vicarious liability in terms of section 146 of the PenalCode.
That the prosecution must present a consistent caseagainst the accused-appellant whether by way of illegalomissions or positive (illegal)acts or both.
Basis of the prosecution case against 4th accused-appellant
Learned Solicitor-General submitted that the prosecutionpresented its case against the 4th accused-appellant on the basisof illegal omissions and positive (illegal) acts. The allegation ofillegal omissions consisted of the general allegation of intentionalfailure to comply with the duty imposed by law and certain specificillegal omissions by Police officers. Two specific instances of illegalomissions highlighted were:
failure to arrest miscreants and
failure to take action when certain detainees were attackedinside the truck.
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The positive (illegal) acts enumerated by the prosecution were
shooting at the detainees and
removal of dead bodies with a view to destroy evidence
Law relatino to illegal omissions
The relevant provisions of the law which govern illegalomissions are found in sections 30, 31 and 42 of the Penal Code.
Section 30 – “In every part of this Code, except where a contraryintention appears from the context, words which refer to acts doneextend also to illegal omissions."
Section 31 (1) "The word 'act' denotes as well a series of actsas a single act."
Section 31 (2) "The word ‘omission’ denotes as well a series ofomissions as a single omission"
Section 42“A person is said to be “legally bound to do" whateverit is illegal in him to omit"
In Criminal Law by Wayne R. Lafave and Austin W. Scott(Second Edition (1986) at page 202) illegal omissions are definedas follows;
“More difficult, however are crimes which are not specificallydefined in terms of omissions to act but only in terms of causeand result. Murder and manslaughter are defined so as torequire the killing of another person; arson so as to require theburning of appropriate property. Nothing in the definition ofmurder, manslaughter or arson affirmatively suggests that thecrime may or may not be committed by omission to act. Butthese crimes may in appropriate circumstances be thuscommitted. So, a parent who fails to call a doctor to attend hissick child may be guilty of criminal homicide if the child shoulddie for want of medical care, though the parent does nothing ofan affirmative nature to cause the child’s death”
At page 210, it is stated that “one’s failure to act to savesomeone toward whom he owes a duty to act is murder if heknows that failure to act will be certain or substantially certain toresult in death or serious bodily injury. If he does not know that
Sarny and others v
SC Attorney-General (Bindunu-wewa Murder Case) (Weerasuriya, J.) 237
death or serious injury is substantially certain to result, but thecircumstances are such as to involve a high degree of risk ofsuch death or injury if he does not act (in some jurisdictions hemust, in addition, be conscious of this risk), his failure to act willafford a basis for liability for involuntary manslaughter. A failureto act which, under the circumstances, amounts to no more thanordinary negligence would not, by the general rules of criminalhomicide make him liable for either murder or manslaughter.Thus it cannot accurately be said that an emission to act(assuming a duty to act) plus death equals murder or equalsmanslaughter without considering the mens rea requirements ofthose crimes.”
The above proposition of the law would make it clear that themere fact that there was a duty to act in the given circumstancesand death has resulted due to the said failure to act will not besufficient to establish the offence unless the prosecution provesthat the omission was intentional.
Section 139 of the Penaf Code fays down that "Whoever beingaware of facts which render any assembly an unlawful assembly;intentionally joins the assembly or continues in it, is said to be amember of an unlawful assembly
Therefore the vital ingredient of the offence of being a memberof an unlawful assembly is the intention to join the assembly with aparticular common object. The onus of proving the ingredient lieson the prosecution. In this case the prosecution has sought to relyboth on positive (illegal) acts and illegaf omissions to establish thenecessary mens rea on the part of the 4th accused-appellant. It isthe duty of the prosecution to present its case consistent with thisposition. In order to establish an intention to join the unlawfulassembly the purported (illegal) positive acts and the illegalomissions must necessarily point in the same direction.
The prosecution must necessarily rely on circumstantialevidence to establish that the 4lh accused-appellant intentionallyjoined the unlawful assembly with the object of causing hurt to thedetainees. Therefore the inescapable inference from both thepositive acts and the omissions taken together must be that the 4thaccused-appellant had only the intention to join the unlawful
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assembly with the common object of causing hurt to the detainees.If the proved facts do not exclude other reasonable inferences thena doubt arises whether the inference sought to be drawn is correct.(Vide Rex v. Seedar de Silva at 344 (supra) King v Abey-wickremd11)
Insufficiency of action: Does it amount to inaction?
The prosecution contended that the Police did some acts toprevent the commission of offences but the action taken viewed inthe light of final outcome, namely, death of 27 detainees andinjuring 14 was insufficient and therefore the 4th accused-appellantentertained the common object of other members of the unlawfulassembly.
There is no dispute that the Police Officers are bound to prevent thecommission of offences. Chapter VIII of the Code of Criminal Proceduredeals with the powers of the Police Officers to command any unlawfulassembly which is likely to cause a disturbance of the public peace todisperse and their right to disperse such assembly and if the saidassembly shows a determination not to disperse, the Police areempowered to fire at them with a view to disperse such assembly.
Section 56 of the Police Ordinance lays down the duties of PoliceOfficers as including the duty to preserve the peace and detect andbring offenders to justice and to use their best endeavour and ability toprevent all crimes, offences and public nuisances.
It is necessary to highlight that a decision with regard to the courseof action that should be taken in situations of this nature is essentially amatter within the discretion of the officer in charge of the Police party.Departmental Order No. A19 Rule 29 states “It will be appreciated thatno rules or regulations can be drawn up for every conceivablecontingency that may arise. The man on the spot that is the SeniorPolice Officer at the scene must decide what best he should do and usehis judgment and discretion as the situation may seem to dictate”.
Part III B (2) of the said Departmental Order states as follows:-
“In dealing with disorderly crowds the officer in charge of the Policemust consider carefully the number of men at his disposal. Dueregard must be paid to the particular circumstances of eachcase and as to whether the party of Police is strong enough to
sc
Samy and others v
Attorney-General (Bindunu-wewa Murder Case) (Weerasuriva. J.)
239
avoid any danger of being rushed and overpowered if the crowd isengaged in hand-to-hand combat”
Having regard to the departmental orders referred to above if theofficer in charge has exercised his discretion bonafide and to the bestof his ability, he cannot be faulted for the action he has taken eventhough it may appear that another course of action could have provedmore effective in the circumstances.
Purported illegal omissions and positive (illegal) acts of the Policeestablishing their complicity
The general allegation that the Police did nothing to save thedetainees came mainly from the two detainees namely Ganesha-moorthy Ashokan and Kandasamy Chandrasekaran. Ashokan statedthat the Police did not do anything when they saw crowds outside thecamp carrying clubs. However in re-examination he stated that Policeshot at the fence to save them (vide Vol. Ill page 1038).
Chandrasekaran stated that the Police did not come and save themwhen they were attacked but later admitted that he did not see anyPolice at that time but he saw Police Officers at the initial stage whenthey were asked to stay inside the billets.
The evidence relating to alleged illegal omissions of the Police mustbe assessed against the other evidence of detainees who stated thatthe Police took steps to save them. (Vide evidence of Uttaranathan – Vol3 page 953) (Sinnatamby Rajendran) (Vol. Ill page 1179)(Ganeshamoorthy Ashokan – Vol. Ill page 1031 and 1038)
It was submitted by the prosecution that the 4th accused-appellanthad admitted in his dock statement that he was stationed near the mainentrance to the camp at the time of the attack implying that he could seethe detainees being attacked and merely stood by and watched theattack. On a reading of the said dock statement it would appear thatthere was no such admission. He had stated that he came up to theentrance when the attack commenced and immediately ordered hismen to shoot in the air and proceeded towards the camp. He hadexplained that the reason for not shooting at the attackers directly wasthe inability to distinguish between the detainees and the villagers inthe commotion. It was revealed that he was not possessed of eventear gas equipment at the time, as seen from the evidence of A.S.P.
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f,2007J 2 Sri L.R
Dayaratne who stated that he brought tear gas equipment when hecame to the camp that morning.
Two purported specific acts of illegal omissions
Failure to arrest miscreants at the time of the incident.
It was submitted that the alleged omission would indicate thatthe Police did entertain an intention to share the common objectof the members of the unlawful assembly.
In dealing with this allegation one has to be mindful of the fact thatonly 65 officers were available to the 4th accused-appellant at the timeof the break-in by the unruly mob. The 4th accused-appellant was notin a position to muster the full strength of the Police unit at the entranceto the camp for the reason that some of his men were deployed aroundthe perimeter of the camp running into approximately 1.5 kilometers. Inthe circumstances it would be clear that the Police were greatlyoutnumbered. Considering the public feeling against the detainees andthe fact that the Police were getting outnumbered, any attempt to arrestthe offenders could have led to a backlash against the Police. It is to berecalled that when Police did in fact arrest 367 persons on the followingday, the villagers stormed the Police demanding their release on bail.
It was submitted by the prosecution that the Triaf-at-Bar had heldthat if the 4lh accused-appellant really wanted to guard the camp and toprotect the detainees he could have positioned all his men around thebillets without positioning his men around the perimeter of the camp.This proposition is clearly unreasonable for the reason that the 4,haccused-appellant was under orders not to enter the camp premises.
In the light of the aforesaid material it is not justifiable to draw theinference that the failure to arrest the offenders on that day was anindication that the 4th accused-appellant shared the common object ofthe unlawful assembly. In this regard what matters is the intention of theofficers as would be seen from their actions and not on the extent of thedamage.
Failure to take action when detainees were attacked inside a truck.
Two detainees namely Nicholas Edwin and ThambirajahNavarajah had given evidence that they were attacked by thecrowd in the presence of the Police inside the truck parked at the
Sarny and others v
SC Attorney-Genera! (Bindunu-wewa Murder Case) (Weerasuriya, J.) 241
entrance to the camp. However, Gamini Rajapakse a villager whogave evidence at the trial claimed that when a detainee who camerunning towards the Police truck near the turn off to the camp wasattacked, there were no Police Officers at the point.
Purported positive (illegal) acts of the Police
The prosecution claimed that certain items of evidence led atthe trial had taken the prosecution into a new dimension whichshows that in addition to illegal omissions the Police had done overtand positive acts. The purported positive acts were:
shooting by the Police resulting in the death of 4 detainees;
removal of dead bodies with a view to destroying evidence.
Shooting by the Police
The evidence with regard to Police shooting emanates from thefollowing witnesses:-
Ganeshamurthy Ashokan
Perumal Easwaran
Sinnathamby Sudaharan
Kandasamy Chandrasekaran
The medical evidence has revealed that only one detainee hadsustained and succumbed to gun shot injuries and injuries found onhim were slanted upwards.
Ganeshamurthy Ashokan stated that he was shot by the Policewhen he with other detainees ran for protection. But in re-examination he conceded that the Police shot in the air and shot atthe fence to save them and at the point he lay on the ground. (Vol.Ill page 1038)
Perumal Easwaran claimed that he was shot in the right handand his finger was severed. However evidence of Dr. Kahandageclearly showed that he had cut injuries on both hands and alaceration in the right hand which had been caused by sharp edgedweapons and blunt weapons. (Vol. IV pages 1621 – 1623)
Though Sinnethamby Sudaharan claimed that he sustained gunshot injuries while he was running towards the playground.Dr. Chandana, who examined him testified that he had minor
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(2007] 2 Sri LR
injuries on the face and right shoulder caused by a blunt weapon.(Vol. IV pages 1561-1566)
Despite the assertion by Kandasamy Chandrasekaran that adetainee named Karunakaran was shot in the leg near the tubewell, it was revealed at the post mortem examination held by Dr,Wijeratne on the body of Karunakaran that he had stab and cutinjuries which could be caused by a sharp weapon and injuriescaused by blunt weapons. It is to be noted that he had no gun shotinjuries. (Vol. IV pages 1561 – 1566).
On the available evidence it is apparent that the Police firedshots in the air from a lower elevation, from the road outside thecamp. Most of the empty cartridges were found on the road nearthe entrance to the camp.
On a careful analysis of the evidence of 4 witnesses whotestified on the act of shooting, it would appear that only onedetainee had sustained gun shot injuries. The allegation that thePolice shot at the detainees is not borne out by medical evidence.In the circumstances it is highly probable that the detainee whosuccumbed to gun shot injuries was accidentally shot when thePolice were firing in the air.
The Trial-at-Bar had failed to evaluate the evidence with regardto the alleged shooting and had accepted the evidence of thedetainees at its face value.
Removal of dead bodies
It was submitted that the Trial-at-Bar had held that the Policehad removed the dead bodies, without having recourse to normalprocedure with a view to destroy evidence. A.S.P. Dayaratneconceded that he was instructed by the D.I.G. to remove the bodiesto preserve the peace in the area as there was a largeconcentration of Tamil estate workers in the surrounding area.
In view of the above evidence it was a total misdirection by theTrial-at-Bar to hold that dead bodies of the detainees were removedfrom the scene with a view to destroy evidence.
Positive acts by the Police which would negate the propositionthat there was an intentional failure on their part to prevent thecommission of offences
Samy and others v
SC Attorney-General (Bindunu-wewa Murder Case) (Weerasuriya, J.) 243
The following items of evidence would reveal that Police officerson duty around the camp did their best to prevent or minimize theharm which was being caused by the unruly mob. They wouldnegate the position that there was an intentional failure on the partof the Police and the 4th accused-appellant in particular to preventthe commission of offences and share the common object ofcausing hurt to the detainees. Even if the matter is left in a state ofdoubt, it is to be highlighted that the prosecution had failed toestablish the necessary mens rea.
Police shot in the air with a view to disperse the crowdimmediately when the crowd broke into the camp [(Videevidence of Capt. Dayaratne [Vol. II page 147] andevidence of Ashokan. [Vol. Ill page 1038)].
14 empty cartridges were found at the bend near the turn off
to the camp and 6 empty cartridges were found near theturpentine tree inside the camp. The leaf of the turpentinetree had been damaged at a height of 10.7 metersindicating that firing was in the air.
The Police drove away groups of people preventing themfrom entering the camp at various points [Vide evidence ofCapt. Abeyratne (Vol. II page 207) Lt. Abeyratne (Vol. IIpage 275) Jeganathan Uttamanathan (Vol. Ill page 955) P.
Premadasa (Vol. Ill pages 834-837) Gunapala – GramaArakshaka. (Vol. Ill pages 912 & 913)].
Police officers intervened and saved detainees when theywere being attacked [Vide evidence of Uttamanathan (Vol.Ill pages 952 & 954) Sinnathamby Rajendran. (Vol. Ill page1179)].
Police took steps to despatch injured detainees to thehospital [Vide evidence of Ashokan. (Vol. Ill page 1031)]
The 4th accused-appellant deployed Police Officers whoreported for duty under him having regard to the mostvulnerable areas. It is to be noted that the available PoliceOfficers had to be deployed around 8 1/2 acres of landwhich is approximately 1.5 kilometers.
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When the situation got out of hand the 33rd accused whowas under the 4th appellant, called for help twice thatmorning.
4,h accused-appellant gave clear instructions to the officerswho were under him (a) not to allow anyone to enter thecamp and (b) not to shoot unnecessarily except uponsuperior orders.
ConclusionsAfter a careful examination of all the material enumerated in theforegoing paragraphs, I am of the view that there is no merit in thecontention that 4th accused-appellant along with the villagers, wasa member of the unlawful assembly with the common object ofcausing hurt to the detainees.
In the circumstances, I allow the appeal and set aside theconviction and sentences entered against 4th accused-appellantand acquit him of all the charges preferred against him.
JAYASINGHE, J.UDALAGAMA, J.DISSANAYAKE, J.
I agree.I agree.I agree.I agree.
FERNANDO, J.
Appeals allowed.