THE KING v. EBERT SILVA

114-NLR-NLR-V-50-THE-KING-v.-EBERT-SILVA.pdf


HOWARD C.J.—The King v. Ebert Silva
457
[Court of Criminal Appeal]
1948 Present: Howard C.J. (President), Canekeratne J. andNagalingam J.THE KING v. EBERT SILVAAppeal No. 87 of 1948S. C. 13—M. C. Balapitiya, 57,809.
Court of Criminal Appeal—Charge of murder—Corpus delicti—Body ofdeceased not found—Can accused be convicted ?
The caution that a man should never be convicted of murder ormanslaughter on circumstantial evidence alone unless the body of thedeceased person has been found need not, however, be followed whenvery strong circumstantial evidence of death can be given.
■Appeal from a conviction in a trial Before a Judge and Jury.
Colvin R. de Silva, with M. M. Kumarakulasingham, K. C. de Silva andK. A. P. Rajakaruna, for accused appellant.
T. S. Fernando, Crown Counsel, with Ananda Pereira, Crown Counsel,for the Crown.
Cur. adv. vuUt.
November 25, 1948. Howard C.J.—
The accused appeals from his conviction on an indictment containingthree counts of murder. The first count was in respect of the murderof a man called Muttusamy, the second in respect of Muttusamy’smistress Baby Nona and the third in respect of Baby Nona’s childHemalatha. The accused, since 1938, was the conductor of an estateof about 50 acres situated at Porawagama belonging to his uncle onePiyadasa de Silva, a Proctor of Balapitiya. The deceased Muttusamywas an Indian Tamil and had been employed by Mr. Piyadasa de Silvaas a rickshaw puller. Muttusamy had also worked at various intervalsas a resident labourer under the accused on Piyadasa de Silva’s estate.In May, 1946, after having been away Muttusamy returned and with thedeceased Baby Nona was employed on the estate. They were alsogiven accommodation on the estate. The names of Muttusamy andBaby Nona appear in the check roll of the estate up to October 17,1946. At the time when these murders are alleged to have taken placethe accused had in his employment as cook a boy called Wilfred, 16 yearsold. He was living in the accused’s bungalow together with Jayaratnewho was 23 years old and was employed as a tapper. Jayaratne was arelation of the accused. No one else lived in the latter’s bungalow, butjust outside the boundaries of the estate was the house of Banda,Wilfred’s father. His daughter, Jane Nona, a sister of Wilfred andanother son Edwin or Arnolis, lived with him. It was proved in evidence20—L.
1-J. N. A 89982—1,040 (7/49).
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HOWABD C.J.—The King v. Ebert Silva
that the house in which the deceased were living was between theaccused’s house -and Banda’s aDd was 418 yards from the former and 484yards from the latter. A footpath running through the estate passedby all three houses. It was in evidence that the accused had beenintimate with the deceased Baby Nona and used to visit the house ofBaby Nona during the days when Muttusamy was not there. BabyNona was pregnant at the time of her death. According to the witness,Wilfred, Muttusamy quarrelled with Baby Nona about 4 p.m. on theday before these murders are alleged to have taken place. This incidenttook place on’ the hill near the accused’s bungalow and the accused issaid to have intervened. This was the last occasion on which the witness,Wilfred, saw the three deceased. This quarrel between Muttusamy andBaby Nona does not appear tG have been of a serious character as awitness called Erolis testifies to the fact that all the deceased came tohim that night with some paddy to be pounded and that when they leftMuttusamy and Baby Nona appeared to be friendly and the child wascarried by Muttusamy.
Wilfred and Jayaratne in their evidence state that the accused on thenight in question after dinner went out of his bungalow taking the estategun, cartridges and a torch with him. Wilfred says that the cartridgeswere imported. Jayaratne says that the accused went in the direction ofMuttusamy’s hut. Both witnesses say that later they heard the reportof a gun. Jayaratne says that it was 5 minutes after the accused leftthe hut and Wilfred says that he heard the report as he was falling asleep.Wilfred also states that he got up early in the morning and the accusedhad not then returned. He returned while Wilfred was boiling water,.bringing the gun and the torch with him. He was perspiring and saidhe had shot at a bandicoot. He had his tea and saying he must go outagain with his dog he went out with his gun and dog. Jayaratne statesthat he spoke to the accused when he came in and the latter said that hedid not shoot at anything. According to Jayaratne the accused wentaway and returned, about 9 a.m. and told Jayaratne that Muttusamyand his family had bolted. After the accused had gone away the firsttime a rubber tapper called Samathapala, according to Wilfred, came tothe bungalow about 7 -30 or 8 a.m. to see if tapping was being done.Samathapala and Wilfred, then went in search of the accused. Theyarrived at Muttusamy’s house. As they arrived a stench came from thehouse. The door was ajar, they looked in and saw a heap of ash andblood and also a hole in the back wall opposite the door. They alsosaw drag marks from inside the house to the outside. At the back ofthe house they saw the accused’s dog swallowing some dark flesh. Theythen went towards the jungle. The accused came up dressed in a whitesarong with the upper part *. f his body bare. He had soot marks overhis body and chest. He said he got those sort marks following thetrack of a wild boar. He told. Samathapala that there would be norubber tapping today and when asked about the smell said that whentracking after pigs he fell over a heap of burnt logs. Wilfred andSamathapala then returned to the bungalow of the accused and the latterwent away. Normally accused, according to Wilfred, has his meal at12 noon. As he had not returned by 2 p.m. Wilfred went in search of
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him. He went to the house of Muttusamy which he now found lockedwith a padlock. He then went down the hill and found the accuseddigging a large hole in the jungle in the bed of a drain. Wilfred also sawtwo human heads. The teeth and heads were blackened. One headwas larger than the other. Wilfred also caught the smell of burning.The larger head was that of a grown up person and had ears, nose andtwo eyes and was blackened. Wilfred could not identify it. The smallerhead was also blackened and burnt and was according to Wilfred thehead of a child. Wilfred also saw one hand with fingers. It was thehand of a grown up person and had been cut and severed. He also sawthe hand of a child, two legs, and the trunk of a grown up person. Wil-fred asked the accused what the pieces were and the accused rushed athim and said “ It is none of your business, you better go away.” Wilfredthen ran to his father’s house and told the latter that the aocused wastrying to bury some dead bodies. Banda returned with Wilfred andquestioned the accused. The accused first of all denied he was buryingdead bodies, but a short while after, according to Banda, said with somehesitation “ Muttusamy has killed his wife and gone away ”. Bandathen states that he said to the accused “ If Muttusamy had killedthem and gone away, what are you doing ? ” The accused said “ WellI am covering them up.” Banda and Wilfred then went to the bungalowof the accused. The latter arrived home about 4 p.m. with his sarongwashed. Three days later Wilfred says that he and Jane Nona, hissister, at the request of the accused helped the latter to mud the housewhere the deceased had lived. During these three days Wilfred saysthe hole in the wall had been closed. On the day after he had seen theaccused burying the bodies he had been to Muttusamy’s house and takensome wadding out of this hole. He showed it to the accused who threwit into the jungle.
According to the evidence of Wilfred the accused and Jayaratnewere friendly after the disappearance of Muttusamy and his family andwere talking in secret. About three weeks after their disappearance hesaw Jayaratne chopping firewood on the hill. This was at the placewhere he had previously seen the accused burying the bodies. Wilfredalso states that Jane Nona his sister spent a night with the accused in hisbungalow and that after that Jane Nona became the mistress of Jaya-ratne. About a month after the disappearance of Muttusamy and hisfamily Jayaratne and Jane Nona went into occupation of Muttusamy’shouse. This witness also states that two weeks after the disappearanceLucy Nona, Baby Nona’s sister, came and asked after Baby Nona.The accused told her that all three had bolted from the estate. Theaccused also gave Lucy Nona money and sent her away. This evidencewas corroborated by Lucy Nona herself. Wilfred also states that afterthe disappearance he saw Muttusamy’s ration book with the accused.Wilfred further states that the accused threatened to kill him if he toldanyone about what had occurred.
The witness Jayaratne states in his evidence that when the accusedtold him that Muttusamy and his family had bolted his suspicions werenot aroused in any way. Some days later he saw the accused burningsomething in the jungle. The accused asked him to cut firewood. A
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gunny bag was brought from the jungle hy the accused. It containedblue shorts similar to a pair worn by Muttusamy. Also a waistcoatwhich he identified as the latter’s. There were also bones in the bagwhich were burnt. The accused then burnt the bag and its contents.Then Jayaratne Bays his suspicions were aroused and he questioned theaccused. The latter said Muttusamy had holted after killing his wifeand child. His suspicions were allayed and he helped the accused todispose of the bones. This incident took place about three months afterthe disappearance and about the time he took Jane Nona as his mistress.He says that the small bits of bone were grounded by the accused on astone. Later when clearing the jungle with Handy, Gunawathie, thelatter’s sister and Jane Nona he came across a cane box containingclothes. He informed the accused about it. This box was burnt withthe clothes.
The first report made to anyone in authority was that of Banda whoa few days before Christmas complained to Piyadasa de Silva that theaccused kept his daughter on the estate for two days and now she wasliving with Jayaratne. According to Mr. de Silva, Banda was angryabout it. Mr. de Silva said he would enquire into the matter. Bandaalso told him that Muttusamy had run away after killing his wife andchild. Mr. de Silva says that he visited the estate before Christmasbut did not question the accused about Muttusamy and his wife. Hesays he did not believe Banda. The evidence of Banda does not tallywith that of Mr. Piyadasa de Silva. Banda states that he told Mr. deSilva that the accused buried Muttusamy’s wife and child saying thatMuttusamy had killed them and gone away. This was the first time hementioned it to anybody. Later he told one Nanayakkara, the Managerof the Co-operative Stores at Porawagama. The latter on February 1,1947, made a complaint to the Assistant Superintendent of Police atGalle. The Police then instituted enquiries. Statements were takenfrom Banda and Wilfred. A. S. P. Poulier visited the scene onFebruary 7, 1947. The Government Analyst also visited the place andits surroundings. The latter has identified a piece of wadding and card-wadding found by the Sub-Inspector behind the house of Muttusamy asportions of wadding found in Ely-Kvnoch cartridges. The examinationof slugs found by the Police did not carry the case for the Crown anyfurther. With regard to the evidence of Wilfred as to having seen ahole in the back wall the Government Analyst stated that a shot firedfrom the door if it went through a human body would not have penetratedthe rear wall. Dr. Chanmugam, Professor of Anatomy in the Universityof Ceylon, gave evidence as to the nature of the bones which had beendug up by the Police from a mound on the eastern side of Muttusamy’shouse. Dr. Chanmugam states that PI contains a piece of humanadult bone from the head, sex indeterminable. There were signs ofcharring and burning. P 7 was the right knee bone of an adult, sexIndeterminable. P 15 contained a portion of the right human rib of anadult. In this exhibit there was a small portion of a human face. Someof these bones had been subjected to heat. P15a was the milk tooth of achild under 8 years of age. It was in evidence that Hemalatha was 5years old.
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The accused who elected to give evidence on affirmation, stated thathe was on intimate terms with Baby Nona and that he had intervenedin a dispute between Muttusamy and Baby Nona and told Muttusamynot to assault her. He was also the watcher of the estate and on thenight that Muttusamy disappeared he went out on his night round. Hehad his gun, a torch and 5 or 6 foreign made cartridges with him. It wasabout 11 o’clock when he reached the compound of Muttusamy’s house.He saw his door open and ca’led out. Then he saw Baby Nona lyinginside the house near the doorstep. There were blood stains on herjacket. The little child was nearby with stains of blood on her. AsMuttusamy was not to be seen he took to his heels as he got frightenedand went back to his wadia. He shouted “ Jayaratne ” as he ran.Both Jayaratne and Wilfred came out from the wadia and asked what wasthe matter. He said he found Muttusamy’s wife and child murdered andMuttusamy not about the place. He asked them what they should doabout it and whether they should inform the Police. Jayaratne said"We cannot get out at this moment. We might get involved in this.”He got frightened and they arranged they should summon Banda whowas an elderly man from whom one could seek advice. Through fearthey did not fetch Banda that night. Next morning they went toMuttusamy’s house and Wilfred fetched Banda. They saw broken potsand pans in the kitchen and stabs over the corpses. As they came outof the house Banda said “You were also on terms of intimacy with thiswoman and that might come out in this affair. The best thing is toeliminate the dead bodies and say all have run away.” They all agreedto hide the whole affair. Jayaratne was left to watch the house whichwas closed. The accused then set the workers to work. He could nottake his mid-day meal through fear. After meal time they went toMuttusamy’s house and Edwin and Jayaratne dug the grave and put thebodies into it. They scooped up the blood on the floor and covered upthe hole with mud. Into a pit nearby they put the broken pots andclothes and cane box with clothes. Subsequently he arranged forJayaratne to take Jane Nona as his mistress as she was being beatenat home by Edwin her brother. He put them in Muttusamy’s bungalow.Banda was angry with him after this. Later he got frightened and dugup the grave, exhumed the bodies and put them in a fire prepared byJayaratne and Edwin. The following day the mud pit was opened andthe things taken out and burnt.
One of the points taken by Dr. Colvin de Silva is in connection withthe evidence of Jane Nona. This witness stated in cross-examinationthat on the morning of the disappearance she left the house of her fatherBanda just after dawn. She came to Muttusamy’s house and saw thatit was locked with a padlock and a large volume of smoke was emergingthrough the roof and walls. There was also a bad smell. Jane Nonathen says she passed the wadia of the accused and was about to tell thepeople there what she had seen when the accused came up and put hishand over her mouth. When she returned from work Muttusamy’shut was still smoking. The other witnesses for the Crown were notquestioned in regard to Jane Nona’s evidence. Dr. de Silva takes thepoint that they should have been re-called by the Attorney-General.
1*J. X. A 89982 (7/49)
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We think there is no substance in this complaint. The evidence waselicited in cross-examination and was not part of the Crown’s case.l>r. de Silva could himself have asked for the re-call of the other witnesses.
The main- point taken by Dr. de Silva on behalf of the appellant isthat there is no proof that Muttusamy is dead. In these circumstancesthe first count in the indictment is not established. With regard to thesecond and third counts Dr. de Silva argues as follows : The Crown putforward as the motive for the killing of Baby Nona and Hemalatha thefact that they were privy to the killing of Muttusamy. In these cir-cumstances if it is not proved that Muttusamy is dead the convictionsof the accused on counts 2 and 3 cannot stand. The first question thatrequires consideration is whether there is in law sufficient proof thatMuttusamy is dead. No portion of his body has been identified. Inthese circumstances does the evidence surrounding the whole affairestablish that he is dead ? This evidence is purely circumstantial. Inregard to the English Common law the caution laid down by Hale wasthat a man should never be convicted of murder or manslaughter oncircumstantial evidence alone, unless the body has been found. ThisGaution, however, according to later opinion need not be followed whenvery strong circumstantial evidence of death can be given (Archbold27th edition p. 866). In this connection I would refer to the cases ofli. v. Hindmarsh 1, R. v. Gheverton 2, R. v. Hopkins 3. In R. v. Hopkinsthe J ury were told by the Judge to acquit the accused. In R. v. Ghaver tonthecasewasallowedtogotothe Jury and the accused was found not guilty.In both cases the body of the deceased was not found and the principleformulated in Archbold was followed. It was also followed in R. v.Hindmarsh where the accused was convicted although the body was notproduced. In this case the murder took place at sea and there wasevidence that the accused was seen to take up the deceased, the Captain,and throw him overboard into the sea and that he was not seen or heardof afterwards. The evidence establishing the death of the deceased ismuch stronger than in the present case. We have also been referred byMr. Fernando to the law in India as laid down by Gout in the 5th editionof the Penal Law of India p. 1019. In paragraph 3390 the learnedauthor refers to the caution formulated by Hale. In paragraph 3392he states as follows :—
** But, of course, having regard to the definition of e proved ’given in the Indian Evidence Act, there is no room for the ‘ body 5doctrine. The existence of the body is no doubt a proof positive ofthe death ; but its absence is not fatal to the trial of the accused formurder. It is no doubt a material circumstance which the Court orthe jury have to bear in mind in arriving at their verdict, but that isall. Indeed, any other view would place in the hands of the accusedan incentive to destroy the body after committing murder and thussecure immunity for their crime. To recognise such a principle,would, in some instances, under the administration of justice, beimpossible. Of course, in such cases there may remain a doubt as tothe actual death of the victim, but if such doubt is reasonable, the1 168 E. R. 387.* 173 E. R. 1,308.
173 E. R. 631.
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prisoner is entitled to an acquittal. If it is only a doubt, the Courtmay regard it as sufficient not to justify the passing of the extremepenalty, but it can never by itself be a ground for acquittal.”
In paragraph 3394 it is stated as follows :—
“ So far as this country is concerned, it may then be taken tobe now settled, that there is no rule of law that no person shall beconvicted of murder unless the body of the murdered person has beenfound. When the circumstances are such as to make it morallycertain that a crime has been committed, the inference that it was socommitted is as safe as any other such inference ;'so Glover J. upheldthe conviction of the accused for murder on their confession corro-borated in some particulars by circumstantial evidence. The accusedconfessed that the deceased had an intrigue with the accused Pettah’swife. He plotted with the other two accused to lie in wait for himon his next visit; they then attacked him and killed him outrightwith lathies, and afterwards buried him in a grave close by a pond.Their confession led to the discovery of a grave, which was, however,empty, but in which there were found two pieces of cloth belongingto the deceased on the night of his disappearance, and strong smellof decomposed matter pointing to the recent removal of the body.There were marks on the earth close by, as if a body had been draggedalong. Their confession was most circumstantial, and the Courtheld it to be sufficient to support their conviction notwithstandingthe non-discovery of the body ”.
The evidence against the accused in the case referred to in this para-graph was much stronger than in the present inasmuch as the confessionmade by the accused proved the death of the deceased beyond allreasonable doubt. In the Empress of India v. Bhagirath1 it washeld by Straight J. that the mere fact that the body of themurdered person has not been found is not a ground for refusing toconvict the accused person of the murder. In Adu Shikdar v. QueenEmpress 2, it was held by Norris J. that he would require the strongestpossible evidence as to the fact of murder if the dead body was notforthcoming. I would also invite attention to the 7th edition of Willson Circumstantial Evidence. At p. 346 it is stated as follows
“ In cases of homicide three propositions must be made out in orderto establish the corpus delicti. (1) That a death has taken place.(2) That the deceased is identified -with the person alleged to havebeen killed. (3) That the death was due to unlawful violence orcriminal negligence : and it is not till these propositions have beenproved that the question—-not included in the inquiry as to the corpusdelicti—is the accused or suspected person the culprit, arises.”
In the present case the death of Muttusamy has not, in our opinion,been established beyond all reasonable doubt. The bones discoveredhave not been identified as belonging to him. It is possible that on thenight of the murder of Baby Nona and Hemalatha, Muttusamy escaped1 I. L. R. 3 Allahabad 385.2 I. L. R. 11 Calcutta S36.
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and is in hiding through fear. There was no evidence of Police or othersearch for Muttusamy. He may be alive. In these circumstancesas he is not proved to be dead the question aB to whether the accused isthe killer does not arise. The verdict of guilty on count 1 must be setaside.
With regard to counts 2 and 3 we are not prepared to assent to theproposition put forward by Dr. Colvin de Silva that because of themotive put forward by the Crown the convictions of the accused onthese counts cannot be maintained. Proof of motive was not a requisitefor conviction. Nor was the Jury so charged by the learned Commis-sioner. The question is whether the evidence established these chargesbeyond reasonable doubt. The only evidence against the accused beingof a circumstantial nature it must be only consistent with his guilt andincompatible with innocence. We think it was. The chain of cir-cumstances clearly establishes his guilt. It is true that the motivemay be obscure. On the other hand if the evidence of Wilfred isaccepted the following facts are established :—
(a) The accused with his gun, cartridges and a torch left his house onthe night of the murder about 8 p.m. ;
(Z>) Shortly afterwards a shot was heard from the direction of Muttu-samy’s house ;
The accused did not return to his house that night ;
He returned in the morning while Wilfred was preparing tea.
The accused was perspiring and asked if he had shot anythingsaid he shot at a bandicoot. To Jayaratne he said he did notshoot at anything ;
About 9 a.m. Wilfred and Samathapala went to the house of
Muttusamy. They got a stench. They saw ash and blood anda hole in the back wall. Also signs of something having beendragged from inside the house. They also saw a dog swallowingsome dark flesh ;
(/) Towards the jungle they met the accused with soot marks all overhis body and chest. He said that he got the soot marksthrough following a wild boar and that he fell over some burntlogs ;
At 2 p.m. Wilfred again went to Muttusamy5s house and found
the door locked with a padlock. Down the hill he saw theaccused digging a large hole in a bed of a drain in the jungle.He was preparing this hole for the disposal of various humanremains including two heads one larger than the other. Askedby Wilfred what the pieces were he rushed at him and saidit was none of Wilfred’s business and he had better go away ;
On the arrival of Banda on the scene he said that Muttusamy
had killed his wife and child and run away and that he, theaccused, was covering them up.
There is also the evidence of Jayaratne as to the later activities ofaccused and himself in burning bones and belongings of Muttusamy andhis family, which the accused brought in a gunny bag from the jungle.According to Jayaratne the bones before being burnt were ground on a
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stone. There was also the burning of the cane box with its contents.The evidence of Lucy Nona to the effect that the accused told her thatall three had bolted from the estate also points to the guilt of the accused.There is also the evidence of the attempts made to cover up the eventsof that night by mudding the bungalow of Muttusamy. The evidenceof Professor Chanmugam proves that the remains of bodies produced inCourt were from an adult and a child. The finding of wadding by thePolice is consistent with the firing of an imported cartridge from a double-barrelled gun. Even without the evidence of the accused the factselicited by the Crown point in one direction and in one direction aloneand that is to say the guilt of the accused. The evidence of the accusedand his attempts to explain his behaviour in failing to notify the authori-ties of the discovery of the bodies of Baby Nona and Hemalatha and indisposing of them only serves to emphasize his guilt. No other expla-nation of his conduct is possible. His suggestion that in failing to notifythe Police and in disposing of the bodies he acted on the advice of Bandais just not credible having regard to their relative positions. Nor canit be accepted that he acted through fear. If Muttusamy had run awayhow could the accused possibly be suspected of committing this crime ?The chain of evidence against him is complete.
In addition to the points I have mentioned Dr. Colvin de Silva madenerbain complaints in regard to the learned Commissioner’s charge to theJury. Taking the charge as a whole we think that the case was fairlyand squarely put to the Jury.
In the case of count 1 the appeal and application are allowed and theconviction is set aside. In regard to counts 2 and 3 the appeals and-applications are dismissed.
Conviction on count 1 set aside.Convictions on cotints 2 and 3 affirmed.