007-NLR-NLR-V-51-THE-KING-v.-JAYEWARDENE.pdf
JAYETILEKE A.C.J.—The King v. Jayewardene
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[Court of Criminal Afpkal]
Present: Jayetileke A.C.J. (President), Canekeratne andGonasekara JJ.THE KING w. JAYEWARDENEAppeal 30 of 1949 with Application 80
S. C. 1—M. C. Kandy, 31,177
Evidence Ordinance—Bad character of accused—Evidence of —Admissibleto prove motive or state of mind—-Sections S and 14.
Under section 8 of the Evidence Ordinance evidence can be led by theprosecution to prove a motive for any fact in issue or relevant fact, andunder section 14 evidence of a previous conviction can be given if itwill throw light on the motive or state of mind of an accused person withimmediate reference to the particular occasion or matter.
./lPPEAL, with application for leave to appeal, against a convictionin a trial by a Judge and Jury.
0. E. Chitty, with N. M. de Silva and Vernon Wijetunge, for theappellant.
B. R. Crossette-Thambiah, Acting Solicitor.General, with A. C. M.Ameer, Crown Counsel, for the Crown.
Cur. adv. vult.
July 15,1949. Jayetileke A.C.J.—
The appellant was tried on an indictment chargiug him with havingcommitted murder by causing the death of one S. M. Samarasinghe,an offence punishable under section 296 of the Penal Code.
The deceased was a youth of the age of about 16 years at the time ofhis death which occurred on January 21, 1948. On that day when hereturned from school ho found a parcel which had been sent to him bypost awaiting him. He took it to his room and when he opened it abomb which was inside it exploded and caused him very serious injurieswhich resulted in his death.
The evidenco shows that two parcels addressed to the deceased andto his sister Mrs. Seneviratne were posted on January 20, 1948, at theHavelock Town Post Office, and two other parcels addressed to HissDissanayake, a cousin of the deceased, and to Podi Nilame, a brotherof the deceased, at the General Post Office. The senders of the paroelshave not been traced. A fifth parcel was handed over to the Police byUkku Banda the manager of a boutique at Undugoda. TJkku Bandasaid that two well-dressed men came to the boutique and left the parcelthere. All the parcels contained locally manufactured bombs. Mr,Ch&nmugam, the Government Analyst, who dismantled one of the bombs*2—li.^
1J.N.A 92409-1,040 (10/49)
JAYETILEKE A.C.J.—The King v. Jayewardene
said that the main component of it was a stick of dynamite about 2}inches in length and about 1$ inches in diameter which was tightlyfitted into a thick cardboard tube the two ends of which were securedby two wooden stoppers. There were two holes bored in each stopperinto which two detonators were fixed one at each end. Inside the deto-nator there was some gunpowder and into this gunpowder a lightingelement similar to those found in the bulbs of electric torches was found.The tube or cylinder was encased in a larger cardboard cylinder the openends of which were secured by wooden stoppers on either side. In alittle space between the two cylinders two small dry cells of the strengthof about 1^ to 2 volts were found at one end. The switching device wason the outer cardboard tube. Two copper strips were tied to the cylinderabout two inches apart, one lead from the battery and one from one endof the filament being connected to each copper strip. A thick copperwire about eight inches long was passed under the copper strips and wasprevented from making electrical connection between the two stripsinsulating a short portion of the wire which was arranged to be underone of the copper strips. To each end of the wire were attached a taglabelled “ Pull Pulling of the wire in either direction shifted theinsulation from under one copper strip and caused the filament to spark.That ignited the detonator and the gunpowder which finally explodedthe dynamite. The bomb was harmless as long as the wire to which thetag labelled “ Pull ” was attached was not pulled. He said further thatas a result of inquiries he learnt that dynamite of this particular thicknessand detonators of this particni&r type were not available to civiliansand that civilian dynamite would not have fitted the inner cylinder.
The deceased lived with his father in a village called Kabbagamuwain the District of Kegalla up to about the year 1944 when his fathersent him to Dharmarajah College and made him a boarder in the dispensaryof one Gampaha Vederala in King’s Street, Kandy. In the year 1945he left that boarding-house and came to the house of the appellant inTrincomalee Street. The appellant was a tailor by occupation. Hewas not married. There is no evidence as to his age but the learnedJudge in his summing-up has referred to him as an adult. He used- thefront portion of his house as his tailoring establishment and he lived inthe back portion. The deceased lived in the appellant’s house up tothe beginning of 1947 when he left owing to some displeasure with theappellant and resided in the boutique of one Alwis Appuhamy at Buwali-adde for about a month. In April 1946 when the deceased went homefor the holidays the appellant wrote to him a letter P25. It reads:—
“ Do you mean to board in another place this term ? Do you notconsider about the College boarding ? If you do not like it I willfind another place for you. I would not hesitate to buy or to rentanother place for you …. How can I without your friendshipin the future! Otherwise …. I have nothing to consolemyself.”
This letter BhowB that the appellant had a deep affection for the deceasedbut that the deceased had more or less made up his mind to leave theappellant’s house. Early in 1947 at the deceased’s request Kodikara,
JAYETILEKE A.C.J.—The King c. Jayewerdtne
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who was a friend of the family, found accommodation for him in the houseof Alwis Appuhamy at Bu'waliadde. The evidence of Kodikara andAlwis Appubamy shows that after the deceased left his house the appellanttried hard to get him back and when he failed he threatened on severaloccasions to do him harm. The evidence of Simon and Jayasinghe alsoshows that the appellant uttered similar threats. Kodikara said that,three days after the deceased left, the appellant went to his workshopand told him,
This boy was living with me. I fed him, clothed him and dideverything for him. He has left my place having removed a ringof mine. He is a very bad boy. Please get him out of the placewhere ho is boarded at present and send him back to me ”.
He conveyed to the deceased what the appellant said but the deoeaseddid not agree to go back. Two days after that visit the appellant wentagain to his workshop and asked him how the matter stood and he toldthe appellant that the deceased would not go back. The appellantasked him to considor whether the deceased would be sent back or notand went away. A day or two later the appellant paid a third visit tohim. On that occasion he told the appellant that he did not wish to bedisturbed and asked him to go away. Thereupon the appellant drew akris knife from his waist and said,
“ If I cannot destroy him (deceased) with anything I will destroyhim with this. ”
Alwis Appuhamy said that, about six days after the deceased cameto his house, the appellant came to see him and told him that the deceasedgot angry with him and left and requested him not to keep the deceasedin his house. About four or five days later the appellant came againand repeated his request. Ten days later the appellant came again andsaid,
“ I have already told you on two occasions not to keep that boy inyour place. If you continue to keep him you will also get into trouble.I will kill that boy if he does not come back to me. ”
He got alarmed at this threat and asked Kodikara to take the deceasedaway. Shortly afterwards the deceased’s elder brother Podi Nilamcarranged with Jayesinghe, the Assistant Manager of the Tarzan office,Kadugannawa, for the deceased to stay in the Tarzan office. On March 3,1947, the deceased left Alwis Appuhamy’s house.
Jayesinghe said that, a few days after the deceased came to reside inhis office, the appellant came there and asked him to send the deceasedback to his house. He asked the appellant why he wanted the deceasedand the appellant replied,
“ My business is going down. It is a good omen to have the boyin my house. He has a pleasant face and is good-looking. It ispleasant to have him in the shop. ”
On March 24, 1947, the appellant met the deceased on the road andassaulted him. Podi Nilame went to the appellant’s shop and asked
JAYETILEKE A.C.J.—The King t>. Jayewardene
him why he assaulted the deceased and the appellant told him “ I hithim because he refused to come when I called him The Police fileda plaint against the appellant in the Magistrate’s Court on March 29,1947,charging him with disorderly behaviour on the road. The appellantwent four times to Podi Nilame’s house in Kegalla to get the case with-drawn and when Podi Nilame refused to withdraw the case he said“ Then you people will fall into trouble The case was heard onAugust 14, 1947, and the appellant was convicted and fined Rb. 5.
The evidence of Karunaratne showB that before the trial was takenup the appellant offered him Rs. 500 to break a hand or leg of the deceased,and that of the deceased’s father shows that the appellant went up tothe deceased after the conviction and told him “ See what 1 will do toyou. ”
The evidence of Simon showB that after the conviction the affectionthe appellant had for the deceased had turned into hate. Simon saidthat about three months before the day of the tragedy the appellantthreatened approximately about a hundred times to destroy the deceased.The appellant said that he knew how to make bombs, that he had tested abomb, and that he would send a bomb to the deceased and kill him.He would also send bombs to several people. He said further that when thethreat was repeated he told Piyadasa the appellant’s cook :
“ This man is persisting in this. He may put bis intention intoeffect. Therefore tell the deceased not to open a parcel if he receivesone. ”
Piyadasa was not called as a witness. He is more or less of the same ageas tho deceased and it seems to be probable that he conveyed theinformation to the deceased.
The evidence of Podi Nilame shows that the deceased warned him notto open any suspicions parcel that was sent to him, and that he, in turn,passed on the warning to his sisters. The fact that Podi Nilame did notopen the parcel he received seems to support his evidence on thispoint.
The evidence of Promadasa shows that about two weeks prior to thedate of the tragedy the appellant came to his shop and asked him whetherbe could give him ten sticks of dynamite and twenty detonators of themilitary type. The appellant told him that he wanted them for a friendof his who had a contract at Hingurakgoda.
The evidence of David Perera and Majeed shows that on January 20,1948, they met the appellant at a petrol shed in Kandy and spoke to him.David Perera asked the appellant (sarcastically) whether he had not goneto see his friend, meaning thereby the deceased, and the appellantreplied “I could not go recently but I have sent him a present”.
The learned Judge in his summing-up indicated to the juiy that hedid not believe the evidence of these two witnesses and he also told themthat if they did not believe them they could reject their evidence and acton the other evidence. We are unable to say what view the jury tookof their evidence but in view of the observations of the learned Judgereferred to above we have no alternative but to disregard their evidence.
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JAYET1LEKE A.C.J.—The King t». Jayeuiardene
The main question for our consideration is whether the rest of theevidence made out a primn facie case against the appellant. The learned.fudge directed the jury in regard to the principles on which they shouldact when they were examining a case on circumstantial evidence. Hepointed out to them that in order to base a conviction on circumstantialevidence they should be satisfied that the circumstances unmistakablyimplicate the appellant and exclude the possibility that someone elsecommitted the offence. Their verdict implies that they accepted theevidence of Ukku Banda that two men came to the boutique on January21, 1948, and left there the bomb which he subsequently handed overto the Police. Ukku Banda's evidence was supported by that of William•Singho, the driver of the omnibus in which the two men travelled. UkkuBanda did not know the deceased at all and he had no reason to bearill-will towards him.
' According to the evidence of Podi Nilame, whose memory appears tobe better than that of his father, Punchi Banda, the proprietor of theboutique, had no grievance against the deceased and he too had noreason to bear ill-will towards him. However that may be, it appearsto us to be improbable that Ukku Banda or Punchi Banda posted thebomb to the deceased because we think that, if either of them did so,ho would not have allowed a similar bomb to remain in the boutiquefrom January 21, 1948, up to January 23, 1948. We are of opinionthat the person who sent the bomb to the boutique did so with the objectof diverting suspicion from himself to Ukku Banda or Punchi Banda.The deceased's father’s house which the accused knew well is abouthalf a mile from Punchi Banda’s boutique and the evidence shows thatthe appellant went to Kabbagama four or five times between April andAugust. 1947, once to sec the deceased’s father, the other times to seePodi Nilame, in order to induce them to withdraw the case against him.About that time there seems to have been some dispute between thedeceased’s grandfather and Punchi Banda about the rent- of the boutiqueand it is possible that the appellant heard about it.
Wc have examined with great care and anxiety all the evidence thatwas before the jury when they retired to consider their verdict. We havetested that evidence in the light of probability and t.ho more we look atit in that way the more we are satisfied that there was a case for theappellant to meet . The appellant tried his utmost, to get the deceasedback to his bouse from the time the deceased loft up to the date of theassault. He then tried his utmost to get the case against him withdrawn.After the conviction he was bitterly incensed against the deceased.At first he threatened to do him harm and later to destroy him with abomb. He also threatened to destroy several others with bombs. He saidthat he knew how to make bombs and that he had tested a bomb. Abouta fortnight before the bombs were posted he tried to buy dynamite anddetonators of the military type. On January 20 four bombs were postedto the deceased, his brother Podi Nilame, hie sister Mrs. Sencviratne, andhis cousin Miss Dissanayake, but a bomb does not seem to have been sentto the deceased’s sister Dingiri Amina. He bad the intention of gettingmarried to Dingiri Amma at one time. He had a motive to destroyPodi Nilame and Mrs. Seneviratne who were members of the deceased’sfamily. The motive to destroy Miss Dissanayake is not known.
!♦-J. N. A 92*99 (10/49)
30JAYETILEKE A.C.J.—Tht King i> Jayetrardcnz
The parcel sent to the deceased was addressed to Kadugannawa andthat sent to Mrs. Seneviratne to Yatagoda School, Nelundeniya. Thename and address of the sender of these two parcels was given as A. M.Seneviratne, Government Training School, Colombo. The parcel sentto Podi Nilame was addressed to Undugoda and that sent to Miss Dissa-nayakc to D&lpathdeniya, Ambanpitiya. The name and address of the8endor of these two parcels was given as W. B. Wiekrcmasingho, School,Galapitamada. The appellant knew the place where the deceased andPodi Nilame lived. He knew that Mrs. Seneviratne was a teacher andwas married to a teacher who was undergoing a course of training.He knew Miss Efissanayakc and the place where she lived. Ho attendeda “ pinkama ” at Nelundeniya in connection with the death of an uncleof hers and ho may have met there W. B. Wickremcsinghe anotheruncle of hers.
He had in his possession a piece of copper wire when the Police searchedhis house. That piece of wire was very much like the wire used on thebombs but a little thinner.
He was in a position to make his explanations on these matters if hewas prepared to have them put to the test and yet he offered no explana-tions. We are therefore of opinion that the verdict of the jury wasjustifiable.
The next question is whether certain answers given to certain questionsput by the learned Judge led the jury to believe that the appellant wasa person of bad character. Jayasekera, a student attending DharmarajaCollege, said that he bad been to the appellant’s house and he did not seeany women there but he saw two or three schoolboys. These boys didnot go to the appellant’s shop to get themselves measured for clotbeB.Ho, however, added in answer to Counsel that these boys went to see thedeceased who was living there. After the re-examination of Simon wasover the foreman of the jury asked him the following questions andreceived the following replies :—
Q.Did you see school boys and young boys visit him ?
I have.
Q.Many ?
Yes.
Q.On many occasions ?
Yes.
We are unablo to say why the foreman put these questions. If hisobject was to find out whether the appellant’s attachment to the deceasedwas an improper one we are satisfied that no prejudice could have beencaused to the appellant in view of the direction given by the learnedJudge that no suggestion was mado by the prosecution of an improperattachment between the appellant and the deceasod and that evidenceof such an attachment was inadmissible. It was argued that the words“ what inferences you may draw is a matter for you ” in the summing-upof the learned Judge may have led the jury to think that they coulddraw the inference that the appellant’s attachment t' the deceased wasan improper one. In the context in which these words appear we donot think that a reasonable jury could have thought so. It seems to
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K'tmaresu i>. The Divisional Revenue Officer, Vavuniya
us that the learned Judge used those words with reference to what hesaid in the preceding paragraph. It must be noted that in the courseof the trial he ruled that the prosecution could not lead evidence toprove an improper attachment between the appellant and the deceased.That ruling seems to us to be unduly favourable to the appellant. Wethink that evidence that the attachment of the appellant to the deceasedwas an improper one was admissible under sections 8 and 14 of the Evi-dence Ordinance. Under section 8 evidence can be led to prove amotive for any fact in issue or relevant fact, and under section 14 evidenceof a previous conviction can be given if it will throw light on the motiveor state of mind of an accused person with immediate reference to theparticular occasion or matter. (Ameer Ali on Evidence, 9tb Edition,p. 216.) It was under these sections that the learned Judge allowedthe prosecution to prove that the appellant was convicted for disorderlybehaviour on the road.
The only other question is whether P38 was properly admitted inevidence. There is no evidence that it is in the handwriting of the appel-lant or that it bears his signature. Simon said that the handwriting lookslike that of the appellant. We are of opinion that it should not have beenadmitted in evidence. It was produced to prove that the appellant wasgreatly attached to the deceased. On that point there was a largovolume of evidence and its production could not have caused any pre-judice to the appellant.
For the reasons given above we would dismiss the appeal and tboapplication.
Appeal and Application dismissed.