SUDU AIYA AND OTHERS vs. THE ATTORNEY-GENERAL

049-SLLR-SLLR-2005-V-1-SUDU-AIYA-AND-OTHERS-vs.-THE-ATTORNEY-GENERAL.pdf


35SSri Lanka Law Reports(2005) 1 Sri L. R.
SUDU AIYA AND OTHERSvs
THE ATTORNEY- GENERAL
SUPREME COURT,
YAPA.J,
WEERASURIYA, J.
JAYASINGHE, J.
UDALAGAMA. J. ANDFERNANDO, J.
S.C. APPEAL No 17/2003 ( TAB)
H.C. COLOMBO No. 836/200211TH AND 13TH OCTOBER, 2004
Criminal Law—Conspiracy to commit murder —Section 296 read with sections102 and 113B of the Penal Code – Commitment of murder by 2nd and 3rdaccused— Section 296 read with section 32 of the Penal Code —1st accusedindicted with abetment of murder by 2nd and 3rd accused – Section 296 readwith section 102 of the Penal Code — Evidence of accomplice —Reliableand corroborated by confession of accused to accomplice and another—Circumstantial evidence.
The appellants (accused) were indicted with conspiracy to commit themurder of Sujith Prasanna Perera (‘Sujith’) between 21st and 24th March2001. The 2nd and 3rd accused were charged with the murder on 24.03.2001.The 1st accused was charged with abetment of murder by each of the 2nd and3rd accused. The three accused were convicted of the offences with which theywere indicted, before the High Court.
SCSudu Aiya and two others vs359
■ The Attorney- General
The main evidence on which the accused were convicted was given byaccomplice Ratnayake who gave convincing evidence which was corroboratedby the evidence of many witnesses and the confessions of the 2nd and 3rdaccused to Ratnayake, a customs officer and that of the 3rd accused to oneRajakaruna at the Vavuniya Army Camp. Ratnayake had been given a conditionalpardon by the Attorney-General.
The motive of the murder had been the fact that there was a customs inquiryby the deceased Sujith against the 1st accused.
According to Ratnayake, on 15th or 16th March, 2001 the 1st accusedrequested him to find a man who could ride a motorcycle. Ratnayake found the2nd accused. On 22nd March the 1st, 2nd and 3rd accused were taken byRatnayake in his car to a motorcycle trade center, where the 1st accusedspoke to the proprietor and his servants and obtained a red Honda motorcycleNo. 160 series. Sirisena a workman noted the number 160- 2093 on a piece ofpaper, later produced as P7.
On 24.03.2001 Sujith deceased was driving his car from the direction ofKandy towards Colombo with his brother-in law Dinesh. According to Dinesha red Honda motor cycle overtook the car. Then it slowed down and came onthe side of the car when a shot rang killing Sujith. Dinesh saw the pillion riderlooking back at the car.
The weapon ( the pistol) was brought by the 1st accused and given toRatnayake who kept it as a parcel and Ratnayake gave it to the 2nd accusedwho had come with the 3rd accused.
There had been another attempt to kill deceased on 23.03.2001 when the2nd and 3rd accused went out with the weapon and returned to Ratnayakesaying that they were unsuccessful. The 3rd accused returned the weapon.On 24.03.2001 the 2nd and 3rd accused returned and the weapon was returnedto the 3rd accused. They returned to (Ratnayake) about 7.30 a.m. and said that the mission was accomplished. They then left on the motorycycle. Prior tothat the 3rd accused gave Ratnayake 2 motor cycle number plates and a jacketall of which Ratnayake burnt in his back yard. The police observations statethat evidence of burning was found on being shown the place by Ratnayake.The 3rd accused returned the weapon to Ratnayake.
According to Ratnayake the 1st accused attended Sujith’s funeral and laterat the 1st accused's request Ratnayake returned the weapon to the 1st accusedwho collected it and left. On 5th April, 2001 Ratnayake had met the 1st accusedat Negombo and with the help of Mansoor and Sisira, the 1st accused left forIndia, by boat saying that he wished to hide.
360Sri Lanka Law Repons(2005) 1 Sri L. R.
On 24.03.2001 the 1st accused took the 3rd acused to Pettah bus standand sent him off to the Vavuniya camp where he told witness Rajakaruna thathe had a done a job for the 1st accused. When the news of Sujith's murderappeared in the newspaper, the 3rd accused admitted the murder toRajakaruna.
On a statement of the 2nd accused police recovered the motorcycle fromthe house of one Albert, (P2 )
HELD;
The prosecution has proved the case beyond reasonable doubt, despitethe failure of the High Court to specifically advert to the requirement. Thedefect was in any event, curable under secion 334(1) of the Code of CriminalProcedure Act.
The evidence of accomplice Ratnayake was credible and the entiretransaction is corroborated by many witnesses including at the sale of themotorcycle and the confessions of the 2nd and 3rd accused relevant undersections 17 and 21 of the Evidence Ordinance.
The arrangement between Ratnayake and the 1st accused on 15th and16th March, 2001 for finding a motor cycle man to the 1st accused was notevidence of the conspiracy, but evidence of motive or a state or mind orpreparation under sections 8 and 14 of the Evidence Ordinance. Theconspiracy was between 21st and 24th March, as alleged.
There is no merit in the appeal of the accused.
Cases referred to :
King v Jayawardena 51 NLR 2 5
Queen v Sathasivam 55 N LR 255
Queen Liyanage 67 NLR 193 at 203
Mohamed Usman Mohamed Hussain v State of Maharastra (1981) AIRSC1062 at 1067
Rex v Baskerville (1916) 17 AER 38
Somaveera v The Attorney-General (1990) 1 SLR 256
Francis Appuhamy v The Queen 68 NLR 437 at 443
Nattaratnam v Singarajah v The Attorney-General CA No. 208/95 CAM6.7.99
Nagamani Theivendran c The Attorney-General SC Appeal No. 65/ 2000SCM 16.10.2002.
Mannar Mannan v The Republic of Sri Lanka (1990) ISLR 280
SCSudu Aiya and two others vs351
The Attorney- General (Yapa, J.)
APPEAL from the judgment of the High Court.
Dr. Jayampathy Wickramaratne, P. C. with Gaston Jayakodyfor 1st appellant-accused.
Dr. Ranjith Fernando with Himalee Kularatne for 2nd and 3rd appellant-accused.
Priyasath Dep, P. C. Additional Solicitor General with Mohan Seneviratne, StateCounsel , K. P. Ranasinghe (Jnr.) State Counsel and Riyaz Hamsa, StateCounsel for Attorney-General.
Cur.adv.vult
November 24, 2004HECTOR YAPA, J.
This is an appeal filed in terms of Section 451 (3) of the Code of CriminalProcedure Act, No. 15 of 1979 as amended by Act, No. 21 of 1988,against the conviction and sentence imposed on the accused appellants( Accused) by the trial at Bar.
Three accused in this case were indicted under 4 counts. In the 1stcount, 1st , 2nd, and 3rd accused were indicted with the offence ofconspiracy to commit the murder of Sujith Prasanna Perera between theperiod 21st March 2001 and 24th March 2001, and offence punishableunder Section 296 read with Sections 102 and 113B of the Penal Code. Inthe 2nd count, the 2nd and 3rd accused were indicted with the commissionof the murder of Sujith Prasanna Perera on 24th march 20 01, an offencepunishable under Section 296 read with Section 32 of the Penal Code. Inthe 3rd count, 1st accused was indicted for abetting the 2nd accused tocommit the murder of Sujith Prasanna Perera on the date specified incount 2, and offence punishable under Section 296 read with section 102of the Penal Code. In the 4th count, the 1 st accused was indicted forabetting the 3rd accused to commit the murder of Sujith Prasanna Pereraon the date specified in count 2, an offence punishable under section 296read with Section 102 of the Penal Code.
At the conclusion of the Trial at Bar, three accused were convicted onall counts in the indictment and were sentenced to death. The presentappeal is against the said conviction and sentence.
At the trial, prosecution led the evidence of several witnesses and markedseveral documents. Briefly the case for the prosecution as disclosed from
362Sri Lanka Law Repons(2005) 7 Sri L. R.
the evidence is as follows. According to the medical evidence, SujithPrasanna Perera’s death had occurred on 24.03.2001, at about 8.30 a.m.He had died of close range firearm injuries to his head and chest. Boththese injuries were fatal, and were caused by bullets fired from a weaponwhich had emitted bullets with a spinning effect.
The only eyewitness to the incident was Dinesh Wijegunatillake. Hewas the brother in law of the deceased. According to him on 24.03.2001,he and the deceased had left their house in the car driven by the deceasedtowards Colombo at about 8.00 a.m. Deceased was going for his computerclass at Kollupitiya and the witness was on his way to his shop at Maradana.When they were travelling on the Kandy – Colombo road near Ishara Traders,a motorcycle came on the right side of the car and was moving parallel tothe car. At that time the witness had seen the rider wearing a helmet witha plain sun visor and the pillion rider was wearing a helmet with a dark sunvisor. Both were wearing dark coloured jackets. The motorcycle was aHonda, red in colour. As they were riding, they were observing the insideof the car without overtaking. As he felt suspicious, he brought it to thenotice of the deceased who did not pay any attention. Thereafter, themotorcycle slowed down allowing the car to proceed and when their carcame closer to the Wedamulla Bridge, he heard a loud noise like a tyreburst. The car shutters broke and he saw a cloud of smoke. Head of thedeceased had rested on to his side and was bleeding. He then realized. that his brother in law had been shot. The car had slowed down, gone tothe other side of the road and had fallen into a ditch. At that point of time,witness had seen the said motorcycle proceeding and the pillion riderlooking back at the car. Witness had seen the registration number of themotorcycle as 160 -four thousand series, which was a red coloured Honda.
The main witness for the prosecution was Ratnayake who had beentendered a pardon by the Attorney General. He was attached to the CustomsDepartment as an Assistant Superintendent of Customs. According tothis witness the 1st accused, some where on 15th or 16th March, 2001,had told him that he was having a problem that was" worrying his head”and requested of him to find a person who could ride a motorc ycle. Fromthis conversation, he gathered that the 1st accused was talking aboutthe deceased Sujith Perera and that he needed a motorcycle rider toharm him. He knew that there was a customs inquiry against the 1staccused in which the deceased was an important witness. Besides, the
SCSudu Aiya and two others vs363
The Attorney- General (Yapa, J.)
relationship between the 1st accused and the deceased was not cordial.
' Ratnayake said that the 2nd acused wasworking in his partnership businesscalled “Canon Freight”. His company had provided a motorcycle to the2nd accused for his use and therefore, when the 1 st accused requested aperson to ride a motorcycle he thought that the 2nd accused was a suitableperson. Therefore, somewhere between 15th and 20th March, 2001, hehad told the 2nd accused who was known to the 1st accused as well, todo whatever Anura Weerawansa Sir (1 st accused) requested him to do.Thereafter, on 22nd March 2001, in the evening, Ratnayake had gone inhis car with the 1st accused to the Y. M. B. A. at Kiribathgoda wherethey met the 2nd and 3rd accused. Then the 2nd and 3rd accused joinedthem and four of them went to Kirillewella motorcycle sales centre ownedby his friend Sisira. It had been through Ratnayake that the 1st accusedhad got friendly with Sisira. The time was about 7. 00 p.m. when theywent to the motorcycle sales center and as the gate was closed, they gotit opened. Thereafter, the 1st accused had spoken to Sisira over the phoneand was able to obtain a motorcycle. The 3rd accused examined themotorcycle, got the defects attended to and thereafter both the 2nd and3rd accused left the place in that motorcycle. It was a red coloured .motorcycle bearing registration number 160 series. After the 2nd and 3rdaccused left the place, Ratnayake had gone to drop the 1st accused athis house at Welisara. When they went there, the 1 st accused had givenRatnayake a parcel wrapped in a brown paper bag and had told him to giveit to the 3rd accused at the Y. M. B. A. Kiribathgoda on the following daywhich was the 23rd March, .2001. Witness said that he knew the parcelcontained a weapon like a pistol, which he brought home and kept underthe bed.
On March 23rd morning Ratnayake telephoned the 2nd accusedrequesting him to come to his house and when the 2nd accused camethere, he took the parcel that was brought on the previous night, andwent with the 2nd accused in his motorcycle to the Y. M. B. A. Kiribathgoda.Shortly thereafter, when the 3rd accused arrived there, he had given theparcel (weapon) to the accused and came home leaving the 2nd and 3rdaccused there. After sometime 2nd and 3rd accused had come toRatriayake’s house and told him that they could not do the job and the 3rdaccused returned the weapon. Immediately thereafter, Ratnayake hadtelephoned the 1 st accused and informed him about it. Then on the 24th
364Sri Lanka Law Reports(2005) 1 Sri L. R.
March, 2001,2nd and 3rd accused had come to Ratnayake’s house in themorning around 7 .00 a.m. in two motorcycles. When Ratnayake gave theweapon to the 3rd accused, both of them had gone in the motorcycle inwhich the 3rd accused had come, leaving the other motorcycle at hishouse. Sometime later, Ratnayake had received a telephone call from the1st accused saying that he was coming to Ratnayake’s place. Then the1st accused had come to his house at about 7 .30 a.m. and when theywere in conversation, Ratnayake had got a call from the 2nd or 3rd accusedstating that they were coming to his house. Shortly thereafter, the 2nd and3rd accused came to his house and informed them that the mission wasaccomplished, suggesting that Sujith Perera was murdered. Thereafter,the 3rd accused had returned the weapon and a parcel containing twomotorcycle number plates. Then they had tea and kiribath and immediatelythereafter, the 1st accused had taken the 3rd accused in his jeep to thePettah bus stand to send him off to the army camp in Vavuniya. The 2ndaccused had gone away in his motorcycle.
While Ratnayake was at his work place, the 1 st accused had given him atelephone call and when Ratnayake told him that he was frightened, the1 st accused had pacified him saying not to be afraid. Ratnayake said that•the two number plates and the jacket, given to him by the 3rd accusedwere burnt in his back yard as he felt that they may cause problems,which he had later shown to the police as the place where they wereburnt. Ratnayake further said that, he and the 1 st accused attended thefuneral of Sujith Perera. Then on a later date, at the request of the 1staccused he had teken the weapon to a place close to the Makola junctionand the 1st accused had come in his jeep , collected it and had goneaway. On 5th April, 2001, the 1 st accused had met him ( Ratnayake) atthe Royal Park flats and had told him that he has problems other than thisand therefore he was going to hide. About three days later, he had met the1 st accused in Negombo and on that occasion, Mansoor and Sisira hadgone in search of a boat to send the 1st accused to India. Few daysthereafter Ratnayake and Sisira had gone to Lellama, (Negombo) and onthat occasion, he had seen the 1st accused shaking hands with Sisira inthe presence of Mansoor. Thereafter, Ratnayake said that he had seen the1st accused only in court.
SCSudu Aiya and Others vs.365
The Attorney-General (Yapa, J.)
The prosecution also presented evidence of other witnesses not onlyfor the-purpose of corroborating the evidence given by Ratnayake andDinesh Wijegunathilake but also to disclose additional material relatingto the police investigation and the conduct of the accused after thecommission of the offence. When the defence was called, all three accusedmade dock statements denying any involvement with the crime. In additionthe 1st accused called witness Abeysinghe to give evidence relating tothe times that Ratnayake had reported for duty at the Customs Departmenton the 23rd and 24th of March, 2001. The defence case was closed leadingin evidence D 1 to D 3 and X 1 and X2.
At the hearing of this appeal learned counsel for the 1st accusedappellant submitted that according to count ! in the indictment, the allegedconspiracy had taken place,at Walisara or Kiribathgoda during the period21 st March, 2001 to 24th March 2001 . In the information provided by theAttorney—General to the Hon. Chief Justice, it was stated that the allegedconspiracy commenced on 22.03.2001 at Kiribathgoda, when the threeaccused and Ratnayake met in front of the Y. M. B. A. and conspired tocause the death of the deceased and for that purpose they decided toobtain a motorcycle. Hence, the case the 1st accused had to meet in theHigh Court was that he conspired with the other accused between theperiod 22nd and 24th March, 2001. Therefore, it was contended by learnedcounsel, that the evidence of Ratnayake that, on or aboout 15th or 16thMarch, 2001, the 1st accused had told him that he had a “headache” andwanted a motorcycle rider to get rid of it, and also Ratnayake’s evidencethat he told the 2nd accused between the period 15th and 20th March,2001, to do whatever the 1st accused wanted him to do, should bedisregarded. He further submitted that the Attorney General did not considerthese items of evidence to form any part of the evidence relating to theconspiracy. In other words, what the learned counsel for the 1 st accusedwas trying to submit was that these items of evidence were inadmissableand therefore had been wrongly admitted as evidence.
In regard to this matter, learned Additional Solicitor General submittedthat according to witness Ratnayake, the reference of the 1st accused toa “headache” which had to be got rid of, was made in relation to thedeceased. This reference was made either on the 15th or 16th March,2001, which was a date prior to the dates specified in the conspiracy
366Sri Lanka Law Reports(2005) 1 Sri L. R.
count in the indictment. His contention was that, it was open to theprosecution to place these items of evidence not to establish a conspiracy,but to show a motive or the existence of a state of mind which would berelevant under sections 8 and 14 of the Evidence Ordinance. In a charge ofconspiracy it is always open to the prosecution to lead evidence of suchisolated acts in order to establish the commencement or the formation ofthe conspiracy. It would appear from such evidence, that the relationshipbetween the deceased and the 1 st accused was not cordial. Prosecutionalso led evidence to show that the deceased was giving evidence in acustoms inquiry against the 1 st accused, and therefore there was a strongmotive for the 1 st accused to cause harm to the deceased. When the 1 staccused mentioned to Ratnayake about a “headache' which had to be gotrid of, Ratnayake understood the reference to mean the killing of thedeceased. These items of evidence clearly establish the state of mind,the motive or even preparation on the part of the 1st accused to causeharm to the deceased. Undoubtedly, such evidence would be admissibleunder sections 8 and 14 of the Evidence Ordinance. Vide King vsJayawardena 01 Queen vs Sathasivam<2>. Further, it would be wrong toassume that the conspiracy has to be proved before the evidence of otheracts or conduct of the alleged conspirators could be led in evidence, sinceevidence of such acts would have a bearing with regard to the formation orthe starting point of the conspiracy. Therefore, in our view the prosecution’ has the right to place those items of evidence before the court. Thesubmission that these items of evidence were inadmissible, as they referredto a time prior to the period of the conspiracy is unacceptable. The guidingprinciple in this matter would be, whether such evidence could beconsidered as relevant and admissible in terms of the Evidence Ordinance.
It was contended by the learned counsel for the 2nd and 3rd accusedappellants that in a charge of conspiracy it is an essential ingredient toestablish through evidence that there was an agreement on the part of theconspirators to commit the offence, namely, the murder of Sujith Perera.In this case, he complained that the Trial at Bar misdirected itself byfailing to look for such material before coming to the conclusion that thecharge of conspiracy has been established. On this question learnedAdditional Solicitor General submitted that, if the evidence of Ratnayakeis accepted as true, his evidence clearly shows that there was anagreement among the accused to cause the murder of the deceased SujithPerera. As stated above he further submitted that, the events referred toby Ratnayake had taken place between the period 21st March 2001 to
SCSudu Aiya and Others .vs.367
The Attorney-General (Yapa, J.)
24th March, 2001 and these events cannot be explained in any other wayexcept to say that these accused had acted according to an agreed plan.He said that it was Ratnayake’s evidence that the 1st accused told himsometime earlier on the 15th or 16th March, 2001, that he had a problemthat was “worrying his head” and requested him to find a person who couldride a motorcycle. At that point of time Ratnayake thought that the 2ndacused who was using a motorcycle and was working for him, was themost suitable person for the purpose and therefore, somewhere betweenthe period 15th and 20th March, 2001, he had requested the 2nd accusedto do whatever the 1 st accused wanted him to do. Then on 22nd March2001, in the evening 1st, 2nd and 3rd accused and Ratnayake met nearthe Y. M. B. A. Kiribathgoda, and proceeded to the Kirillewela motorcyclesales centre. At the sales centre the accused selected a manoeuvrableand high speed motorcycle and got the defects attended to. On the sameday the 1 st'accused gave Ratnayake a parcel containing a weapon like apistol to be given to the 3rd accused on the following day at the Y. M. B. A.Kiribathgoda. On 23rd morning Ratnayake went with’the 2nd accused inhis motorcycle to the Y. M. B. A. Kiribathgoda, met the 3rd accused andhanded him the weapon and came back/iome leaving the 2nd and 3rdaccused there. Sometime later both the 2nd and 3rd accused came toRatnayake’s house and returned the weapon to him stating that they couldnot do the job. Immediately, Ratnayake brought this matter to the noticeof the 1st accused. Then on the 24th morning the 2nd and 3rd accusedcame to Ratnayake’s house, collected the weapon and went away.Sometime therefter, when the 1st accused was at Ratnayake’s house,the 2nd and 3rd accused had come there and informed them that themission had been accomplished. At that stage the 3rd accused had returnedthe weapon and a parcel containing the two motorcycle number plates.Then they all had food together and thereafter the 1 st accused had takenthe 3rd accused to be dropped at the Pettah bus stand to send him off toVavuniya. All these events had taken place between the period 21 st Marchto 24th March 2001 in quick succession. Why did these accused act inthis way ? is it not logical to conclude that these accused acted in thisway since, they had an agreement to commit the murder of Sujith Perera.This conclusion appears reasonable in view of the evidence of Rajakarunawho said that the 3rd accused had admitted to him about the commissionof this murder, when the 3rd accused told Rajakaruna that he carried outa job for “Aiya” meaning the 1 st accused.
368Sri Lanka Law Reports(2005) 1 Sri L. R.
An agreement could either be express or implied and it could be provedby direct or circumstantial evidence. In dealing with the nature of evidence .that could be presented to establish a charge of conspiracy, the court inthe leading case of the Queen vs Liyanage and others(3) at 203 stated asfollows. “The evidence in support of an indictment charging conspiracy isgenerally circumstantial. It is not necessary to prove any direct concert,or even any meeting of the conspirators, as the actual fact of conspiracymay be inferred from the collateral circumstances of the case. Conspiracycan ordinarily be proved only by a mere inference from the subsquentconduct of the parties in committing some overt acts which tend soobviously towards the alleged unlawful results as to suggest that theymust have arisen from an agreement to bring it about. Upon each of theisolated acts a conjectural interpretation is put, and from the aggregate ofthese interpretations an inference is drawn.” Similar views were expressedin the case of Mohamed Usman Mohamed Hussain vs State ofMaharashtra<4>. Further, it has been stated that in a conspiracy the accusedmay have agreed to act together without previous concert or deliberationsince the requisite agreement may have come into being on the spur ofthe moment, although the accused had not met earlier. The gist of theoffence of conspiracy is agreement. In the present case, there is clearevidence that the accused met together before. They are close associates.Therefore, their subsequent conduct as seen from the evidence clearlyprovides material from which their prior agreement, which is an essentialingredient of the offence concerned may be rightly inferred. Learnedcounsel’s submission that in this case, the prosecution has failed toestablish that there was an agreement on the part of the accused to causethe murder of the deceased is unacceptable. The Evidence of Ratnayakecoupled with the other circumstantial evidence presented by theprosecution show very clearly that the accused conducted themselves inthis manner, due to an agreement they had to commit the murder of thedecased Sujith Perera. In other words, an agreement by the accused tocommit the murder of Sujith Perera has been inferential^ established bythe prosecution.
Another matter raised by learned counsel for the 1 st accused appellantwas that the Trial at Bar did not apply the higher standard of proof that wasrequired, when applying the principle that the evidence of an accompliceshould be corroborated by independent testimony. Learned counsel arguedthat witness Ratnayake was an accomplice and therefore his evidencehad to be corroborated by independent evidence. He cited the case of
SCSudu Aiya and Others vs.369
The Attorney-General (Yapa, J.)
Queen vs Liyanage (Supra) where the principle has been laid down thatthe evidence of accomplices requires independent corroboration of theirevidence in material particulars.
Counsel pointed out that Liyanage’s case, after having laid down thegeneral rule regarding corroboration, dealt with the case where anaccomplice gives evidence under a conditional pardon and came to theconclusion that such evidence has to be considered carefully, evencautiously, and only accepted when it is corroborated and found to beconvincing. His submission was that the court in Liyanage’s case has seta higher standard of proof in.the case of an accomplice who has receiveda conditional pardon. In the present case therefore, counsel complainedthat the Trial at Bar did not consider this important difference and insteadrelied on the standard that would be ordinarily applied to the evidence ofan accomplice.
On the other hand in dealing with Ratnayake’s evidence, counsel forthe 2nd and 3rd accused appellants submitted that his evidence wasunsatisfactory. He argued that the Trial at Bar failed to consider the questionthat corroboration is only required, if the witness requiring corroboration isotherwise credible. The tenor of counsel’s argument was that the evidenceof Ratnayake was not credible and therefore had to be rejected and therewas no need to look for corroboration.
It would appear that both these submissions as referred to above madeby both counsel relate to the question of credibility of witness Ratnayake.Hence, it would be appropriate to examine his evidence very closely forthat purpose. Undoubtedly, witness Ratnayake is not only an accomplice,but a co-conspirator who had been given a conditional pardon. There is nocontroversy over this matter. Thus, it would require that his evidence shouldbe corroborated by independent evidence, in material particulars. Eventhough, there is no impediment for a court to convict an accused personupon the uncorroborated testimony of an accomplice in terms of section133 of the Evidence Ordinance, the principle that the evidence of anaccomplice should be corroborated by independent evidence in materialparticulars, has now virtually become a rule of law. Besides, section 114illustration (b) of the Evidence Ordinance states that the court may presume,that an accomplice is unworthy of credit, unless he is corroborated inmaterial particulars. It would be safe therefore, to act on the evidence of anaccomplice onlv when his evidence is corroborated and appears to be
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convincing. In the case of Queen vs Liyanage at page 213, Reference wasmade to the assessment of the evidence of an accomplice who has receiveda conditional pardon in the following terms. “We have net forgotten thatsome of the prosecution witnesses who are obviously accomplices weregiving.evidence under a conditional pardon, “With halters round their necks",and with a natural inducement to earn it. Is their evidence to be forthwithstruck out or disregarded ? Or is it to be considered carefully .evencautiously, and only accepted when it is corroborated and found to beconvincing ? We have chosen the latter course. The evidence of fellowconspirators or accomplices is of course tainted and suspect, especiallywhen they admit their own complicity. But it is not usual for a prosecutionfor conspiracy to be instituted without the evidence of one or more personswho have, at one time or another, been parties to the conspiracy.” Therefore,it is seen that the evidence of accomplices or co-conspirators who havegiven evidence under a conditional pardon could be accepted and actedupon, provided their evidence has been carefully and cautiously considered.and found to be convincing.
Witness Ratnayake as stated earlier is not only an accomplice but aco-conspirator with the other accused. They happen to be dose associatesand the alleged conspiracy revolved round them. The 1st accused hadobtained the services of the 3rd accused, a trusted friend who was fromhis village and who had earlier stayed in the 1 st accused’s house. Ratnayakeobtained the services of the 2nd accused who was the wharf clerk attachedto his business concern and was known to the 1st accused. Therelationship between the 1st accused and Ratnayake appears to besomething more than a friendship. Ratnayake’s evidence clearly highlighthis deep involvement with the other accused. If his evidence is acceptedas being reliable, it is sufficient to establish the charge of conspiracy.Even in relation to the charge of murder which is the 2nd count in theindictment. If Ratnayake’s evidence is believed, then there is sufficientmaterial to establish this count. It would be seen that Ratnayake hasgiven evidence in detail with regard to the conduct of the 1 st, 2nd and the3rd accused during the period 22nd March to 24th March 2001. Theadmission made to Ratnayake by the 2nd and 3rd accused in his houseon 24th March, 2001, that the job was accomplished, and thereafter thehanding over of the weapon and the two number plates show that the 2ndand 3rd accused were fully invloved in the commission of the crime. It isalso in evidence that the 3rd accused had admitted to witness Rajakarunaabout the killing of Sujith Perera at the instance of the 1 st accused. Withregard to the complicity of the 1st accused on the charge of abetment
SCSudu Aiya and Others vs.371
The Attorney-General (Yapa, J.)
referred to in counts 3 and 4 of the indictment, Ratnayake’s evidence alo-ne if accepted would be sufficient to establish the said counts. Such aninference is possible because, according to Ratnayake, it would appearthat the 1 st accused was instrumental .in obtaining the services of the 3rd ■accused, the securing of the motorcycle and the weapon to be used inthe crime and finally he took the 3rd accused in his jeep after thecommission of the murder to be dropped at Pettah in order that the 3rdaccused could board a bus to Vavuniya. In fact Ratnayake has given directevidence in respect of the 1 st, 3rd and 4th counts in the. indictment andcircumstantial evidence in respect of the 2nd count in the indictment.
If one were to accept Ratnayake’s evidence as trustworthy, then hisevidence alone would be sufficient to establish the guilt of the 1st, 2nd and3rd accused in respect of the four counts in the indictment. However, inevaluating Ratnayake’s evidence, he being an accomplice and one whohas been granted a pardon, it would be necessary to examine his evidencein the light of the nature and extent of corroborative evidence available inthe.case. In the leading case of R vs Baskerville(5) reference was madewith regard to the nature of corroboration required in relation to the evidenceof an accomplice. The relevant passage reads as follows “ The corroborationrequired must be independent testimony which affects the accused byconnecting or tending to connect him with the crime. In other words, itmust be evidence which implicates him, i.e., which confirms in somematerial particulars not only the evidence that the crime has beencommitted, but also that the prisoner committed it. The corroboration neednot be direct evidence that he committed the crime ; it is sufficient if it ismerely circumstantial evidence of his connection with it. Nor is it necessarythat the accomplice should be confirmed in every detail of his evidence ; ifit were, his evidence would be merely confirmatory of the independenttestimony and would not be essential to the case." This position wasaccepted and followed in the Case of Queen vs Liyanage. The importantconsideration when looking for corroboration is that, the complete storyneed not be corroborated, but what the law requires is corroboration insome material particulars so that a court could act on that evidence asbeing reliable. In other words what is necessary is some additional evidencedirect or circumstantial, rendering it probable that the accomplice’s storyis true and reasonably safe to act upon, and such evidence has the effectof connecting or tending to connect the particular accused with the crime.
The Trial at Bar referred to in detail, the items of corroborative evidencerelating to Ratnayake’s evidence. Briefly some of the items of corroborative
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evidence taken into consideration by court were the following. It wasRatnayake’s evidence that on 22nd March 2001, he along with the 1st,2nd and 3rd accused went to the Kirillewela motorcycle sales centre toobtain a motorcycle and gave a detailed account of what took place at thesales centre. This material was corroborated by Gamage Sirisena andDon Nishantha who were working at the motorcycle sales centre. Accordingto them on 22nd March 2001, at about 6.30 or 7.00 p.m. four personscame to their sales centre. One of them spoke to the owner of the salescentre Sisira Chandrasiri (Sisira) over the phone and thereafter the ownerspoke to them and instructed them to give these persons who had comea motorcycle of their choice. They selected a 125 CC Honda red colouredmotorcycle bearing registration number 160 -2093. One of them inspectedthe motorcycle, got the defects attended to and removed if from thepremises. Gamage Sirisena who noted down the number of the motorcycleon a piece of paper, identified this note and it was produced at the trialmarked P7. The entry in the book maintained at the sales centre where itwas noted that a particular motorcycle was given on 22. 03.2001 to bereturned on 23.03.2001 was produced marked P8. The owner of the salescentre Sisira gave evidence stating that on 22.03.2001 at about 7.00 p.m.the 1st accused spoke to him over the telephone from the sales centeand made a request for a motorcyel. He said he instructed GamageSirisena and Don Nishantha over the phone to give a motorcycle of theirchoice. It would appear that these three witnesses corroborated eachother without any contradictions.
According to Ratnayake’s evidence on 24th morning at about 7 .00a.m. 2nd and 3rd accused came to his house collected the weapon andwent away. Thereafter they came home about an hour later and told him inthe presence of the 1st acused that the job was done, meaning SujithPerera was murdered. This position was corroborated by witnessRajakaruna who was working with the 3rd accused at the PampamaduArmy Camp Vavuniya. Rajakaruna gave evidence at the trial and statedthat both of them i.e. he and the 3rd accused went on leave and reportedfor duty on 24th March, 2001. Two or three days after their return to theArmy Camp, the 3rd accused had told Rajakaruna that he did a job for“Aiya” meaning the 1 st accused and for the said purpose he got a goodbike and a superb rider. He further requested Rajakaruna to read thenewspaper. Rajakaruna after reading the newspaper inquired from the 3rdaccused, whether he was referring to the murder of Sujith Perera, and the
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The Attorney-General (Yapa, J.)
3rd accused had admitted it. On this matter there is therefore, a clearadmission by the 3rd accused to witness Rajakaruna.
When evaluating the evidence of Ratnayake, it is not out of place tomention the fact that the evidence of witness Dinesh Wijegunathilake theonly eyewitness to the incident, provides some measure of corroborationto Ratnayake's evidence. His evidence in relation to time when this incidenttook place and with regard to the fact that the deceased was shot by twopersons travelling in a red coloured Honda motorcycle 1 60 series, fall inline with the evidence of Ratnayake, Don Nishantha and Gamage Sirisena.Witness Dinesh Wijegunathilake was very clear in his mind that the twopeople who were responsible for the shooting of the deceased on themorning of 24.03.2001, travelled in a red coloured-Honda 160 services.
Ratnayake’s evidence was that, after the 2nd and 3rd accused collectedthe weapon from him and left his house at about 7.00 or 7 .30 a.m. on24th March 2001, he received a telephone call from them after about anhour stating that they were coming to his house. They had come walkinginto his house with a bag and then the 3rd accused had given the weaponand the parcel containing the motorcycle number plates. Witness Ariyadasathe three – wheel driver corroborated this part of Ratnayake’s evidencerwhen he stated that on 24th March 2001 at about 8.30 a.m., he was at theGalewala junction, when 2nd and 3rd accused came with a small bag, gotinto his three wheeler and proceeded towards Makola juntion and gotdown close to the Sapugaskanda police station. According to Ariyadasa2nd accused was well known to him. He also identified the 3rd accused atthe police station and in court as the person who travelled with the 2ndaccused on that day in his three-wheeler. It would appear that Ratnayake’shouse was very close from the place they got down from the three-wheeler.On this matter Ratnayake’s evidence is further corroborated by witnessRandunu Mendis an employee of the communication centre “GatewayEnterprises” situated at the Galwala junction. He said that on 24th March2001, around 8.00 or 9.00 a.m. a telephone call had been taken from thecommunication centre. The Register maintained at the communicationcentre in which the telephone number 927121 was recorded, was markedP14, at the trial. Apparently this telephone number 927121 (P14a), whichwas recorded in P14, was the telephone number at witness Ratnayake’shouse.
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Another aspect of Ratnayake’s evidence was that on the 24th March,2001, 2nd and 3rd accused came to his house and reported that themission was accomplished. Thereafter, they returned the weapon and theparcel containing the motorcycle number plates and the jacket. It wasRatnayake’s position that the number plates and the jacket given to himwere burnt in his backyard and later he had shown the police the placewhere these items were burnt. Inspector Liyanage said in his evidencethat Ratnayake showed him a place in his back yard where these itemswere burnt and on examination he found some burnt articles such as ametal button in which was inscribed the words "London Fag”, two otherbuttons, two burnt portions of a zip and some burnt remains of the size21/2 by 1 1/2 inches. All these items were marked P39, P39(A), P39(B),P4 0 , P40(A) and P41 at the Trial.
Ratnayake in his evidence mentioned the fact that about three daysafter on 5th April 2001 he met the 1 st accused in Negombo. Ratnayakehad gone there with Sisira and one Sunil Gamage. While they were inNegombo, Ratnayake said that one Mansoor and Sisira had gone insearch of a boat to send the 1 st accused to India. Few days later Ratnayakeand Sisira had gone again to Lellama (Negombo) and on that occasion hehad seen Sisira speaking to the 1st accused and shaking hands with himin the presence of Mansoor. Witness Sisira corrborated this evidence whenhe stated that he went to Negombo with Ratnayake and met the 1staccused and Mansoor there, and further on that occasion he (Sisira) wentin search of a boat that would go to India. Witness Sisira also stated thaton a later date he went with Ratnayake to Negombo and met the 1staccused in the night. It is to be noted that there is additional corroborativeevidence provided by witness Anthony Perera who stated that he took the1 st accused and Mansoor to India by boat.
Ratnayake is further corroborated with regard to the evidence of motive,which shows that the relationship between the 1st accused and thedeceased was not cordial. Further, the 1 st accused even tried to implicatethe deceased on an allegation of bribery. The main reason for this strainedrelationship between the 1st accused and the deceased was the longdrawn Customs inquiry that was proceeding against the 1st accused,where the deceased was giving evidence as the main witness. Next dateof this inquiry was fixed for the 28th March 2001 and the deceased wasmurdered on 24th March 2001. It is pertinent to note that Ratnayake’s
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The Attorney-General (Yapa, J.)
evidence that the 1st accused possessed a pistol was corroborated bywitness Sisira and Narayan who gave evidence at the trial. Both thesewitnesses stated that they had seen the 1st accused using a pistol. Theevidence of Ratnayake that a motorcycle obtained from the Kirillewalamotorcycle sales centre was used in the crime was corroborated by thepolice, when it was stated that consequent to a section 27 statementmade by the 2nd accused, the motorcycle marked P2, was recoveredfrom the house of witness Albert. The motorcycle marked P2, was identifiedby witness Albert who said that the 2nd accused came and left it at hishouse to be collected later. Witnesses Gamage Sirisena and on Nishanthaidentified P2, as the motorcycle taken by the four persons who came tothe sales centre on the night of 22.03.2001.
The material referred to above shows the extent to which the evidenceof witness Ratnayake who is an accomplice has been corroborated byindependent testimony. These items of corroborative evjdence relates tomaterial particulars, showing very clearly that the accused were fully involvedwith the murder in question. Further, Ratnayake’s evidence has not beenseriously challenged in court and as a result the defence has notsucceeded in impeaching the credit of this witness. As observed by theTrial at Bar, the contradictions and the omissions referred to by the defencedid not relate to any substantial matter so as to cast serious doubts onhis credibility. However, an attempt was made by the defence to discreditRatnayake’s evidence by confronting him with the Attendance and OvertimeRegisters that were maintained by the Customs Department. But, it wouldappear that no weight or reliance could be given to the entries made inthese registers which were not properly maintained. Further, it is commonknowledge that these registers did not contain material which were reliable,as many of those entries regarding dates and times were questionable.Some of the entries made specially in the Overtime Register appeared tobe of doubtful nature and made purely for the purpose of collectingovertime. Surprisingly; some of the entries in the Overtime Register indicatedthat all the officers concerned had reported for duty exactly on time, withouteven a delay of five minutes. Also it is apparent that some of the entriesin the registers were made by the same person. The resulting positiontherefore is that, these entries that were referred to in evidence cannot beseriously taken into consideration, eitherto discredit or support any position.They are of a dubious nature and unworthy of any credit. Hence, it is veryclear that the entries made in these registers and referred to at the trial bythe defence cannot be used to discredit the evidence of Ratnayake.
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In the light of the independent corroboration of Ratnayake’s evidenceas referred to above, it is clear that his evidence is reliable and could besafely acted upon. It must be mentioned here, that, having regard to hisinvolvement in the crime, Ratnayake would never have volunteered to comeout with the details of the crime at the first opportunity. Further, hisrelationship with the 1 st accused was such that he could never have letdown the 1st accused unless there was some pressing need to do so.That is why, Ratnayake did not disclose to the police in April 2001, thedetails of the plan which resulted in the murder of the deceased SujithPerera. However, when Ratnayake found that with the arrest of witnessGamini Rajakaruna, things were becoming difficult for him to explain, hedecided to disclose the material relating to the murder of the deceasedSujith Perera. Such conduct is not something uncommon and the law hasmade provision to receive such evidence. As a safeguard, law requiressuch evidence to be independently corroborated in material particulars.Therefore, when the evidence of an accomplice is independentlycorroborated in material particulars, a court could act on such evidencewith confidence. The Trial at Bar which had the opportunity to observe thedemeanor and deportment of Ratnayake giving evidence made the followingcomment about his testimony. “As Ratnayake is held to be an accompliceit is relevant to observe that Ratnayake in his evidence did not attempt tocurry favour with the prosecution, show off more guilt of the accused nortried to purchase immunity by falsely accusing the accused to minimisehis role in the involvement in this murder and the story related by Ratnayakein relation to the murder of Sujith Prasanna Perera and the relatedcircumstances connecting the accused to the crime are corroborated byother witnesses in almost every important area as described above. Thisgives additional strength to Ratnayake's evidence and makes it safe toact upon”. Vide page 24 of the judgement. “Considering the demeanourand the manner in which this witness gave evidence in court andconsidering the consistency of his evidence in the absence of anycontradiction or ommission in material facts, we hold that his evidencecould be accepted as creditworthy and reliable to act upon." Vide page 36of the judgement. Therefore, it is very clear that the Trial.at Bar havingtreated witness Ratnayake as an accomplice, and being satisfied that hisevidence has been independently corroborated in material particulars,decided to act on his evidence as being reliable, safe, and convincing.
In dealing with Ratnayake’s evidence counsel for the 1st accusedappellant complained that the Trial at Bar failed to apply the higher standard
SCSudu Aiya and Others vs.377
The Attorney-General (Yapa, J.)
of proof referred to in Liyanage’s case to test the evidence of Ratnayakewho was an an accomplice and instead applied the standard that wouldbe ordinarily used. This is not so. It would appear that the Trial at Bar wasvery much mindful of the higher standard of proof required in the case of anaccomplice who has received a conditional pardon, when it referred to thejudgment in Liyanage’s case and stated thus. “The preferable course is forthe court to consider it carefully, even cautiously and to accept it onlywhen it is corroborated and found to be convincing” Vide page 19 of thejudgement. This contention of counsel is therefore without any merit.
Having regard to the matters referred to above on the question of thereliability of Ratnayake’s evidence, even the submission of learned counselfor the 2nd and 3rd accused appellants that Ratnayake’s evidence wasunsatisfactorily and therefore the Trial at Bar erred in looking forcorroboration is not tenable. In our view this is a case where corroborationhas been considered in relation to a witness whose evidence is satisfactory.Further, counsel’s submission that Ratnayake has given false evidenceand by the application of the maxim “Falsus in uno, falsus in omnibus" hisevidence should be rejected, is also without merit. Other than a fewcontradictions and omissions which were not very material, defence didnot succeed in showing that witness Ratnayake had given false evidence.In relation to this matter, errors of memory, faulty observations, and evenexaggerations must be distinguished from deliberate falsehood. Besides,this maxim has. not been applied as an absolute rule. It was observed inthe case of Samaraweera vs The Attorney General!6) that divisibility ofevidence test is preferred under certain conditions. In the case of FrancisAppuhamyvs The Queen (7>T. S. Fernando J, in the course of his judgementstated as follows : “Certainly in this country it is not an uncommonexperience to find in criminal cases witnesses who, in addition toimplicating a person actually seen by them committing a crime, seek toimplicate others who are either members of the family of that person orenemies of such witnesses. In that situation the judge or jurors have todecide for themselves whether that part of "the testimony which is found tobe false taints the whole or whether the false can safely be separated from,the true.”
As highlighted by learned Additional Solicitor General one salient featurein this case is that there are two admissions made by two accused. Oneadmission was made to witness Ratnayake and the other was made to
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witness Rajakaruna. It was the evidence of Ratnayake that 2nd and 3rdaccused came to his house in the morning of 24th March 2001, about onehour after having left his house with the weapon and told him in the presenceof the 1 st accused that the job was accomplished, meaning Sujith Pererawas murdered and handed over the weapon and the parcel containing themotorcycle number plates. Then according to witness Rajakaruna he andthe 3rd accused were stationed at the Pampamadu army camp in Vavuniya.Both of them had gone on leave and reported for duty on 24th March2001. Two or three days after their return to the Army camp the 3rd accusedhad told Rajakaruna that he had done a job for “Aiya” meaning the 1staccused, and told him to read the newspaper. After having gone throughthe newspaper and when Rajakaruna inquired from the 3rd accused whetherhe was referring to the murder of Sujith Perera, 3rd accused had admittedit. Therefore in this case there are two clear admissions relating to themurder of Sujith Perera. One admission was made shortly after the killingof Sujith Perera-and the other was made a few days later. Admissions' and confessions are made admissible in our law against the maker. VideSection 17 read with Section 21 of the Evidence Ordinance. Law hasmade provision to admit such admissions and confessions against itsmaker because there is an inherent guarantee of testimonial trustworthiness and truth. The evidentiary value of admissions and confessionswere considered fully in the case of Nallaratnam Singarajah vs AttorneyGeneral and in the case of Nagamani Theivendran vs The AttorneyGeneral. In Nallaratnam Singarajah’s case accused-appellant wasconvicted purely on a confession made to the Assistant Superintendent ofPolice. In that case Justice Jayasooriya in dealing with admissions statedthus. ‘‘Besides, as convincingly set out by Best on Evidence there is aguarantee of testimonial trustworthiness and truth in its contents inadmitting admissions against its maker. It is for the aforesaid reasons thatadmissions and confessions are rendered relevant and admissible againstthe maker. Thus there is a presumption and guarantee of testimonialtrustworthiness and truth in law in regard to the contents of a confession.”Confession is a species of admission. On the other hand Justice MarkFernando in Nagamani Theivendran's case referred to the evidentiaryvalue of confessions and accpted the position that solely on a confessionan accused could be convicted. The learned Judge in that case referred tothe opinion expressed by twelve judges in the year 1791, in Rex vs Lambe,which reads as follows. “Confessions of guilt made by a prisoner to any
person at any moment of time, and at any placeare, at Common
law, admissible in evidence, as the highest arid most satisfactory proof of
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The Attorney-General (Yapa, J.)
guilt, because it is fairly presumed that no man would make such aconfession against himself if the facts confessed were not true." Thereforeit is very clear that, if the evidence of Rajakaruna and Ratnayake is acceptedthe 2nd and 3rd accused could be convicted even without any other evidencefor the commission of the murder of Sujith Perera which is the 2nd countin the indictment.
A submission was made by counsel for the 2nd and 3rd accusedappellants that the Trial at Bar misdirected itself with regard to the burdenof proof required in a criminal case. Counsel contended that mere rejectionof the evidence for the defence namely, the dock statements of the accusedas false, did not mean that the prosecution has established its case. Hesaid that the learned judges constituting the Trial at Bar after havingrejected the'dock statements of the accused, should have examined theevidence presented by the prosecution to see whether the case has beenproved beyond reasonable doubt. Counsel pointed out that, nowhere inthe judgment is there any finding to say that the prosecution has provedits case beyond reasonable doubt and therefore this failure was a seriousinfirmity that would vitiate the conviction.
Learned counsel was correct when he submitted that no mention in thejudgement has been made that the prosecution has proved its case beyondreasonable doubt. However, this omission did not mean that the Trial atBar did,not give its mind to the question of the burden of proof requiringthe prosecution to prove its case beyond reasonable doubt. When onereads the judgment of the Trial at Bar it would appear that the learnedjudges have proceeded on the basis that the prosecution has establishedits case beyond reasonable doubt and then considered the dock statementsof the accused to ascertain whether these statements had any effect onthe prosecution case. Such a conclusion is possible in view of the commentthe judges of the Trial at Bar made in their judgment when dealing with thedefence evidence more specifically the dock statements, in the followingterms. "The 1st, 2nd and 3rd accused’s denials in their dock'statements,regarding the evidence implicating them, cannot be accepted due to thereasons set forth above as being truthful and therefore should be rejected.Hence, whether the statements would create a doubt in the prosecutioncase does not arise”. Vide page 63 of the judgment. The only reasonableinference that could be drawn from this passage is that learned judgeswere of the considered view that the prosecution has proved its casebeyond reasonable doubt and the defence evidence did not create anydoubt in their minds in respect of the prosecution case. This matter wouldhave been clear, if the Trial at Bar referred to the general principle applicable
2 – CM 5868
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in a criminal case nameiy that the burden of proof rests on the prosecutionto prove its case beyond reasonable doubt and that they were satisfiedthat the prosecution has discharged this burden. Anyway, had this casebeing a trial by jury where the jurors had to decide this case, the failure todirect them properly on the burden of procf could in certain circumstancesvitiate conviction, in the present case, three judges consituting the jury,they being trained judges who are mindfui of the presumption of innocenceand the required burden of proof in a criminal case, there is no justificationto hold that the accused were convicted without considering the paramountrequirement that the burden was on the prosecution to prove its casebeyond reasonable doubt. Therefore we are unable to agree with thissubmission.
On this submission relating to the burden of proof, learned AdditionalSolicitor General contended without conceding, that, even if there is anysubstance in what the learned counsel for the defence submitted, it ispermissible for the Court to apply the proviso to section 334(1) of theCode of Criminal Procedure Act, No. 15 of 1979 to sustain the conviction.In support he cited the case of Mannar Mannan vs The Republic of Sri.Lankam where it has been held that the provision clearly vests adiscretion in the court and could be applied even where there is a nondirection amounting to a mis direction in regard to the burden of proof.However, in this case having regard to the totality of the evidence availableagainst the accused, it is very clear that the prosecution has establishedthe case beyond reasonable doubt against the accused. It was never adifficult decision which the judges of the Trial at Bar had to make. Underthese circumstances it would not be reasonable to hold that the Trial atBar had misdirected itself with regard to the standard of proof required in acriminal case.
Another matter referred to by counsel for the 2nd and 3rd accusedappellants was that, there was a failure on the part of the Trial at Bar tojudicially evaluate the circumstantial evidence led in this case. Counsel’scontention was that items of circumstantial evidence such as the selectionof the motorcycle,,reporting to witness Ratnayake that the mission wasunsuccessful on 23rd March 2001, and successful on 24th March 2001,handing over of the number plates, ride in the three-wheeler, hiding themotorcycle etc. were items of circumstantial evidence which were equivocalin nature and nothing flowed from such evidence. He further submitted
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The Attorney-General (Yapa, J.)
that these items of circumstantial evidence did not clearly connect theaccused. Hence, counsel contended that the Trial at Bar failed to applythe criteria applicable in a case of circumstantial evidence where theinference drawn should be irresistible, not only consistent with guilt, butalso inconsistent with innocence, an inference from which there is noescape. It is true that some of these circumstances referred to by counseltaken separately may be circumstances only creating suspicion. But thequestion for consideration here is whether if these items of evidence aretaken cumulatively, are they sufficient along with-the other evidence torebut the presumption of innocence. Therefore one has to consider thetptality of the evidence, such as the admissions made by the 2nd and 3rdaccused, evidence of absonding against the 1st accused, the explanationsgiven by the accused with regard to the evidence presented against themby the prosecution and come to a conclusion. It is only then that onecould appreciate the value of some of these circumstances as referred toby counsel . It is well to remember that the prosecution case did notdepend entirely on these circumstances as referred to by counsel nor didthis case depend entirely on the evidence of Ratnayake. Prosecution ledthe evidence of many other witnesses and they were corroborated inseveral ways. For example take the motorcycle marked P2, in this case.Dinesh Wljegunatilake said that two persons came in a red coloured Hondamotorcycle 160 series on 24.03.2001, and shot at the deceased. GamageSirisena and Don Nishantha said that on 22.03.2001, four personscame to the sales centre and selected a 125 cc Honda red colouredmotorcycle bearing No. 160-2093. According to Sisira, 1st accusedspoke to him from the sales center and made a request for a motorcycle.The police officer recovered P2 consequent to a section 27 statementmade by the 2nd accused from the house of Albert who identified P2, asthe motorcycle the 2nd accused left at his house. The 2nd and 3rd accusedadmitted to Ratnayake soon after the killing of the deceased, that theyaccomplished the job, and returned the weapon and the number plates.Few days later 3rd accused admitted to Rajakaruna that he did a job forthe 1 st accused and for that purpose he got a good bike and a super rider.With all these material being available to court, it would be a reasonableinference to make that the motorcycle marked P2, was used in themurder of the deceased. Then, how could one say that the selection ofthe motorcycle is equivocal. Therefore, the contention that the Trial at Barhas failed to judicially evaluate such circumstantial-evidence cannotsucceed.
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It was also urged by counsel for the 2nd and 3rd accused appellantsthat the Trial at Bar came to conclusions on speculation and conjecture.In this regard, counsel referred to the fact that witness Ratnayake couldnot explain the presence of the 2nd and 3rd accused at the Y. M . B. A.Kiribathgoda on 22nd March 2001. Counsel pointed out that without anymaterial the Trial at Bar concluded that, probably the 1 st accused wouldhave told them to come there. Similarly with regard to the finding of theburnt remains of some buttons and a zip (vide P38- P41), counsel saidthat the Trial at Bar had concluded that probably they were from theburnt jacket. He referred to few other matters as well, and contended thatsome of these conclusions were mere speculation and conjecture, sincethere was no material to support such conclusions. It cannot be said thatthese conclusions were arbitrarily drawn by the Trial at Bar in view of thematerial that was available. With regard to the presence of the 2nd and3rd accused at the Y. M. B. A Kiribathgoda, Ratnayake did not say thatthe 1 st accused asked them to come. But what he said was that “I do notknow, probably they may have come on the request of Anura Weerawansa(1st accused) Vide page 164 (v ol.l) In respect of this matter it is usefulto note that Ratnayake had told the 2nd accused to do whatever AnuraWeerasinghe sir (1st accused) requested him to do. It was also theevidence of Ratnayake that the 3rd accused was very close to the 1staccused and in fact the 3rd accused spoke to Ratnayake about a problem“ worrying his head” and needed a person who could ride a motorcycle,Ratnayake’s understanding was that the 1 st accused needed a motorcyclerider to kill the deceased Sujith Perera. In this background, if the Trial atBar had drawn the inference that the 2nd and 3rd accused were presentat the Y. M. B. A. Kiribathgoda on 22nd March 2001, at the request of the1 st accused, it cannot be said that such an inference was mere speculationand conjecture. In our view, it was a reasonable inference one could havedrawn from the surrounding circumstances. In fact it was Ratnayake’sevidence that the 1 st accused wanted the job of killing the deceased donewithin two or three days time but did not give a reason for it. Vide page162 and 163 (vol.l) Similarly it was Ratnayake's evidence that he burntthe number plates and the jacket given to him by the 3rd accused in hisback garden and showed this place to the police. The police officer havingexamined this place found the burnt remains of some buttons and a zip.Therefore, when the Trial at Bar decided that they were the burnt remainsof the jacket that hat was burnt by Ratnayake, it was not speculation, butan inference that could have been reasonably drawn from the availablefacts. Therefore, we are unable to subscribe to the view put forward bylearned counsel.
SCSiddick vs. The Republic of Sri Lanka (Imam, J.)383'
For the aforesaid reasons, we are of the view that there is no merit inthe submissions advanced by learned counsel on behalf of the accusedappellants. In the circumstances, we affirm the conviction and the sentenceimposed on the accused appellants and dismiss this appeal.
WEERASURIYA J. —I agree.
JAYASINGHEJ. — I agree.
UDALAGAMA J. — I agree.
FERNANDO J.—I agree.
Appeal dismissed.