048-NLR-NLR-V-67-The-Queen-v.-Liyanage-and-others.pdf

* A. I. R. (1934) Sind 78 at 81.
JUDGMENT OF COURT—The Queen v. Liyanage ana otners
214
Rao , While it must be shown that the approver is a witness of truth,the evidence adduced in a case cannot be considered in compartments,and even for judging the credibility of an approver the evidence led tocorroborate him in material particulars would be relevant for conside-ration. ” The Supreme Court did not approve of an earlier decision inSarwan Singh v. State of Punjab 2, which had held that: “ Before theCourt reaches the stage of considering the question of corroboration and itsadequacy or otherwise, the first question to consider is whether even as anaccomplice the approver is a reliable witness. If the answer is againstthe approver, there is an end of the matter and no question of corro-boration falls to be considered. In other words, the appreciation of theapprover’s evidence has to satisfy a double test.”
We think it is wrong, see State of Bombay v. Harnam Singh s, to treatthe evidence of an accomplice and the corroborating pieces of evidencein two different compartments. In other words, the reliability of theaccomplice’s evidence should not be judged apart from the evidenceled to corroborate him.
Considering the mass of evidence which has been led at this trial andthe very numerous matters involved, we find it inconvenient to set outthe events spoken to by the prosecution witnesses in chronological order.A.large partjof the prosecution evidence related to the activities of the3rd and 4th defendants, while also the more important part of the evidencecalled by the defence was that given by these same two defendants.Accordingly, we shall attempt, as far as possible, to discuss first theevidence which relates mainly to these two defendants. While doingso, we will find it necessary with regard to certain topics to anticipateconclusions thereon which are founded upon fuller consideration givento these topics at later stages of this judgment.
Lieut. Col. Abeysinghe, Officer Commanding the Ordnance Corps,said that about 2 weeks prior to 27th January 1962—it was on a non-working day—3rd defendant came to his office at Ceylon Army OrdnanceCorps Headquarters, which is near Army Headquarters, and asked tosee the ammunition magazines of which there are three behind ArmyHeadquarters. He gave no reason, but Abeysinghe showed him roundbecause 3rd defendant was a senior officer. Some days later 3rd defendantcame again on a working day, and he showed 3rd defendant and Lieut.Col. Alwis, who accompanied him, the magazines.
The two visits are admitted by 3rd defendant who said that they tookplace on 19th and 22nd January. 3rd defendant said that he was reallyinterested in seeing the lecture and office rooms and the living quartersattached to the Ceylon Army Ordnance Corps Headquarters because the4th defendant wanted him to find accommodation for 20 to 30 persons.This request by the 4th defendant to 3rd defendant is admitted by theformer, and it is referred to elsewhere in this judgment.
Abeysinghe said that on 23rd or 24th January, 2nd defendant sum-moned him by telephone to his office. When Abeysinghe arrived there,he found 3rd defendant also present. 2nd defendant told him that theywere expecting serious trouble in the country and a serious strike aboutthe 29th January which would cripple the country, and that there wasa task for him “ which would be endorsed right from the top ”. He wasto stay at Army Headquarters and execute some orders which were“ coming right from the top ”—and he understood the reference to beto the Governor-General as Commander-in-Chief. When he asked“ What about the Army Commander ?” he was told that he would comeinto it later.
2nd defendant told him that his task was to stay at the Army Head-quarters gate ; certain prisoners would be brought there by the Police;a police officer would identify the escort, and Abeysinghe’s task was toput the prisoners in his magazine. He agreed, because the order camefrom a senior officer. 2nd defendant was (as an Emergency was then on)virtually the second in command after the Army Commander. Accordingto Abeysinghe, 3rd defendant who was also present started a long con-versation regarding his fears of Mr. Bandaranaike taking over the countryin case it was paralysed, describing it as a completely unconstitutionalstep which the latter might take. 3rd defendant appeared to be veryworried about this, and said that in that case he would leave no stoneunturned to do everything possible to stop it, but that in the first instancehe would see the Governor-General and any action he took would havethe Governor-General’s approval.
2nd defendant told him that if the operation was coming through,he would be contacted by a police officer and he would have to act accor-ding to the instructions the police officer had received. In fact Abey-singhe said that on the. 27th morning 4th defendant telephoned to himto go and see Arndt (S. P. Police Headquarters) at the latter’s house,and Abeysinghe asked 4th defendant if it was in connection with what2nd defendant had told him. Arndt and Abeysinghe eventually metat Abeysinghe’s fiat at midnight on the 27th.
Abeysinghe gave evidence after he had accepted a conditional pardon.He said that 2nd defendant never used the word “ coup ” in describingthe operation. Crown Counsel confronted him with a passage (P 158)in his statement which A.S.P. Selvaratnam recorded on 28th January.It reads ; “ About 4 days ago Col. de Mel rang me up and asked me tocome and see him. He spoke to me and said that they were planning' a coup and it was coming from the top and the impression I got wasthat it had originated from Queen’s House and that the General couldbe brought into it at the last moment.” Abeysinghe denied that heused the words “ planning a coup ”, but we see no reason to think thatMr. Selvaratnam recorded words such as these which were not uttered.Abeysinghe also said that he remembers quite distinctly telling Mr. SamP. C. Eernando that it was not a coup, and that if it was he would not
have participated in one. We might refer to another passage (P 144B)in Abeysinghe’s statement of 3rd February, in which he said that heconnected an issue order for Stirling machine guns about which2nd defendant rang him up on the 27th January morning with the“ impending coup ” for that night.
It is clear to us that Abeysinghe has in giving evidence shifted fromthe position he had taken up when he made his statements at TempleTrees, and we are satisfied that he has done so in order to assist the 2ndand 3rd defendants. He has signed his statements, and we considerthat he was satisfied that they were accurately recorded. The previousstatements do not, of course, prove the truth of what appears in them,but they help to assess Abeysinghe’s credibility.
Abeysinghe has admitted that he had never told anybody, prior togiving evidence, that 3rd defendant said he was anticipating somethingin the nature of a coup by Mr. Bandaranaike, and that he was apprehen-sive about it. Naturally the failure to mention this very significantmatter needed explanation. Abeysinghe’s explanation is that at about
a.m. on 28th January at Temple Trees, before his statement wasrecorded, 3rd defendant told him : “ Whatever you say do not disclosethat I was after F. D. B ” ; and again, that after 3rd defendant hadgone into the interrogation room and come out, he told him thatMr. Bandaranaike was in absolute control, adding “ Remember what Itold you.”
There is one important fact which must be mentioned here. Abey-singhe had, in the course of his interrogation, asked to see the ArmyCommander and spoken to him alone. It is clear from General Wijekoon’sevidence that Abeysinghe did not mention Mr. Bandaranaike’s suspectedcoup even to him. Abeysinghe’s explanation for the strange omissionof this fact, which he claimed had been disclosed to him by 3rd defendantprior to 27th January, is unacceptable. We are of the view that Abey-singhe has deliberately altered his version in order to assist the 2nd and3rd defendants, and that the additional matter he mentioned at thetrial viz. that 3rd defendant. told him that he feared that Felix DiasBandaranaike would take over the country, was never in fact told him.Abeysinghe struck us as a witness who would not implicate 2nd or 3rddefendants falsely. He was ready to help them, and to help himself,by toning down the parts they and he played.
We have carefully considered 3rd defendant’s evidence that he and2nd defendant sent for Abeysinghe on 25th January and told him thatMr. Bandaranaike was trying to seize power and become a dictator.3rd defendant said that he told Abeysinghe that his plan was to go tothe Governor-General at the earliest opportunity ; and that when Abey-singhe asked about the Army Commander, he told him that the ArmyCommander would be brought in at the earliest opportunity. He alsosaid that Abeysinghe agreed to the building behind his Headquartersbeing used to keep certain persons : this is, in our view, true.
Major Rvjapakse, Second in Command of the Armoured Corps, hasspoken to certain incidents which he said took place on the night of 26thJanuary. He was invited by 14th defendant to dine with him at hisflat, and he was driven there from the Y.M.C.A. by 14th defendant. Hemet 14th defendant’s wife, 9th defendant and his wife, and Vandendriesenand his wife there. After 9th defendant and Vandendriesen left theflat with their wives, 14th defendant also went out at about 11 p.m.before dinner and 14th defendant’s wife gave Rajapakse dinner. Raja-pakse’s recollec tion about the details of the dinner was extremely vague ;both on 29th January and 21st February he had said that he and 14thdefendant dined together in the flat at about 11 p.m. He said that 14thdefendant returned to the flat about midnight, and told Rajapakse that3rd defendant was downstairs and wished to see him.
Rajapakse 8aid that he then went down and met 3rd defendant whowas sitting in 9th defendant’s car with 9th defendant at the driving wheel.Rajapakse and 14th defendant sat in the rear seat. The car was drivendown to the end of Melbourne Avenue where they all got out. Rajapakseand 3rd defendant sat on the rocks on the beach, while 9th defendant and14th defendant stood near them. 3rd defendant spoke to Rajapakse inthe same strain as 1st defendant had done on the 11th night, referringto the country being on the brink of disaster, the possibility of theCommunists'getting control, the duty of patriotic persons to preventthis ; and he eventually said that he wanted to overthrow the S.L.F.P,Government.
He then asked Rajapakse if he would join. He said that it would be apopular Government by well known people and not a military Govern-ment ; there would be no blood-shed, and he would confront the Governor-General and persuade him to accept a change of Government. Rajapaksesaid chat he agreed to join 3rd defendant if he was given all the details,and 3rd defendant told him that he would arrange for 9th defendant tosee him at 2 p.m. next day, and he would be briefed fully. 3rd defendantimpressed on him the necessit3» for secrecy.
They then drove to 3rd defendant’s house where 3rd defendant wasdropped; from there to 14th defendant’s flat; and ultimately toRajapakse’s flat where the others left him and drove off.
3rd defendant’8 evidence is that he did meet Rajapakse that night. Hesaid that 9th defendant telephoned to him when he was at the SinhaleseSports Club at about 10 p.m. and Rajapakse then spoke on the tele-phone to him and asked him to come to 9th defendant’s flat as he hadsomething urgent and important to tell him.
3rd defendant said that he then went near 9th defendant’s flat and metRajapakse and 9th defendant there. 9th defendant went off, and 3rddefendant and Rajapakse walked to the beach and back. During thatwalk Rajapakse told him that Lieut. Col. Attygalle had told him
that certain drastic steps would be taken in a few days regarding thestrikes ; that Mr. Bandaranaike was the strong man in the Government;that Rajapakse had heard at the Y.M.C.A. that evening that whichever,way the Industrial Court judgment went next day, there would be;serious repercussions; that Rajapakse was very concerned lest the Armywould be used for some illegal purpose, and expected 3rd defendant todo something to prevent it, and agreed to back 3rd defendant whole-heartedly in anything he did and to keep 3rd defendant informed of anynews he got.
Vandendriesen has spoken to being at 14th defendant’s flat that nightfrom about 8 p.m. for about 2 or 3 hours. He was definite that Raja-pakse and 9th defendant left the flat and that 9th defendant cameback first and Rajapakse later. At about 11 p.m. he, 9th defendant,14th defendant and Rajapakse went downstairs together, and the otherthree went out to dine together while he went home. There is a markeddivergence between the versions of Rajapakse and Vandendriesen, and wehave remembered that divergence in deciding what actually happened.
Rajapakse and 3rd defendant have thus given conflicting versions oftheir conversation that night. 3rd defendant’s position was that Raja-pakse was looking to him to lead a movement to prevent the Army beingused illegally by Mr. Bandaranaike, while Rajapakse said that his supportwas being canvassed by 3rd defendant along with 9th defendant and14th defendant to overthrow the Government.
The 3rd defendant’s version is that when the meeting did take place atRajapakse’s request, the latter spoke of information given by ColonelAttygalle of some drastic action by Mr. Bandaranaike in support of which •the Army might be used. The 3rd defendant himself was quite surprisedthat Rajapakse should have thought fit to confide in him about a matterwhich implicated Sir. Bandaranaike and Colonel Attygalle. If, as the3rd defendant himself says, he was thus surprised to find himself theconfidant of Rajapakse, there is involved an admission that it was atleast peculiar that Rajapakse should confide in him. We note also thecoincidence (and there are many matters which on the defence version inthis case we have to accept as mere coincidences) that Rajapakse on 26th.January chose to reveal his suspicions of Mr. Bandaranaike to the sameperson to whom the 4th defendant decided to reveal similar suspicionsearlier that month.
If there is any truth in the evidence of the 3rd defendant that Rajapaksedid disclose to him some suspicious information derived from Attygalleconcerning Mr. Bandaranaike, Rajapakse must have possessed thatinformation from the morning of 26th January, if not earlier. Never-theless, on this version itself, Rajapakse contacted the 3rd defendant at avery late hour on the 26th, and even then only with White’s assistancein putting through a telephone call to the 3rd defendant, and at a timewhen he was Major Joseph’s invited guest at an innocuous drinks
party. In tlie absence of any evidence from White and Joseph, it is noteasy for us to understand how it was that Rajapakse at length decidedto confide in the 3rd defendant, and why it was that he reached thatdecision after spending some hours in the company of White andJoseph.
We have Colonel Attygalle’s denial that he communicated to Rajapakseany information that Mr. Bandaranaike intended to use the Army insupport of some “ drastic action The cross-examination of Attygalleand Rajapakse satisfied us that relations between these two officers werein fact not cordial. For that reason, we doubt whether Attygalle wouldhave revealed to Rajapakse any secret plans of Mr. Bandaranaike, evenif any such plans were known to Attygalle. Our acceptance of Attygalle’sdenial on this point together with the considerations adverted to above,necessarily involve our rejection of the 3rd defendant’s account of hismeeting with Rajapakse. Even if we must treat Rajapakse as anaccomplice and therefore not act on his uncorroborated evidence con-cerning what the 3rd defendant said at this admitted meeting, we haveyet to reject the 3rd defendant’s evidence that the meeting wasarranged by Rajapakse, and that Rajapakse then disclosed somesuspicious information concerning Mr. Bandaranaike.
The rejection of the jJrd defendant's evidence concerning this meetingwith Rajapakse has important consequences. The alleged disclosuresaid to have been then made by Rajapakse was the first (and only)intimation the 3rd defendant claimed to have had regarding the“ sounding ” of Army officers in support of Mr. Bandaranaike’s allegedplan. If as we hold Rajapakse made no such disclosure, we must holdalso that the 3rd defendant’s suspicion that the Army might be used onthe 27th by Mr. Bandaranaike was not based on any information indi-cating any actual preparation to use the Army for such a purpose. Therejection of this part of the 3rd defendant’s evidence means also that thereremains no innocent explanation for the meeting with Rajapakse whichtook place in quite suspicious circumstances.
There is a mass of evidence which established that on the 27 thmorning :—
Major Chapman, Staff Officer, Army Headquarters, telephoned to
Lieut. Col. de Alwis of the 2nd Volunteer Field-Plant Regimentand informed him that 2nd defendant had agreed to allocate 12Stirlings in place of 12 Stens to that Regiment, and wantedAlwis to indent for them that day. Chapman said that he didso because 2nd defendant told him that morning that he hadarranged for 12 Stirlings to be issued to the Regiment becauseAlwis had repeatedly asked for them, and an exchange ofStirlings for Stens had also been arranged.
Alwis asked Capt. Wijesinghe, his Adjutant, to indent for the 12
Stirlings and also told him to bring the ammunition up to scale.
The Adjutant got the necessary documents relating to the Stirlings
and the ammunition prepared ; he signed them, and they weresent on to Alwis marked ** Top priority ” because Alwis hadshown that the issue should be made promptly.
Alwis handed the documents to Chapman who gave them to 2nd
defendant.
After Abeysinghe received a telephone call from 2nd defendant, he
asked Major Ebert of the Ceylon Army Ordnance Corps to makethe issue.
That afternoon Capt. Wijesinghe went to collect the 12 Stirlings
and the ammunition. As th'ire was no ‘G’ Branch authorityendorsed on the documents, Ebert telephoned 3rd defendant;the latter said that the issue could be made, and he would get2nd defendant to obtain covering authority on the 29th. 3rddefendant does not deny tW he told Ebert this.
Ebert authorised *he issue of the guns and ammunition, and Capt.
Wijesinghe collected the 12 .Stirlings, 30 magazines, and 1,440rounds of ammunition. Ebert wiid that the accessories, such as• magazines and slings are normally issued from Panagoda, butin this case the unusual course had been taken of getting themagazines and slings brought from Panagoda to the Armoury atColombo. This was the result of Abeysinghv’a telephone call toMajor Perera who was in charge of the Ordnance Depot, Pana-goda. to send 45 magazines and slings for Stirlings to Colombo.
The 12 Stens were not returned on the 27th.
Another 2 Stirlings, the issue of which to the same Regiment had
.authorised much earlier, wore also collected on the 27thmorning by Capt. Wijesinghe, though do magazines <~>l fillers-were received in respect of them.
The 12 .Stirlings were covered with grease when they were issued tothe Adjutant, and they were in that same condition evenon the 29th January when t hey were taken back to Ordnance onthe ground that the Regiment was not entitled to receive morethan 2 Stirlings.
It is of some significance that there should have been initiated by 2nddefendant on the 27th January morning all these extraordinary measuresto obtain for de Alwis’ Regiment therm 12 Stirling guns. De Alwis hassaid, and there is no doubt about it. that the issue was made unusuallyquickly. He could not assign any rejuum for such ; peed, and it was onlybecause 2nd defendant wanted it done that way that the issue was madeeo quickly.
It is true that Alwis had earlier united for Stirlings to replace the Stenswhich had been issued to his Regiment., and 2nd defendant was aware ofthis request. But that does not seem to be a satisfactory explanation of
the hurry and the unusual steps taken in thi – matter on the 27th, especiallyas it is apparent that 2 Stirlings which had been allotted fo Alwis’ Regi-ment much earlier had not been collected by the 27th. The issue ofthese 12 Stirlings was, in our view, a part of the plan to which 2nd and3rd defendants were parties.
There is evidence of a meeting at the house of the 15th defendant atElibank Road, Havelock Town, at about 7.30 p.m. at which, accordingto Major Rajapakse, the following persons were present:—2nd defendant,3rd defendant, 6th defendant, 7th defendant, 8th defendant, 9th defend-ant, 10th defendant, 11th defendant, 12th defendant, 13th defendant,14th defendant, 15th defendant, 17th defendant, Lt. Col. Abeysinghe,Lt. Col. de Alw-s and himself (see list P.45). It will be seen that they wereall Army Officers, except for the 6th defendant.
Rajapakse said that earlier that evening he had been taken by 14thdefendant in the latter’s car from Prince Vijaya Quay to Rajapakse’sflat. There Rajapakse changed from his uniform into civil clothes, andthey went to 14th defendant’s flat, which they reached about 7 p.m.8th defendant came to the flat and drove Rajapakse and 14th defendantin his car to 8th defendant’s house in Dickman’s Lane, where they met7th defendant. All four of them then went together to 15th defendant’shouse where the others already mentioned had assembled.
While Rajapakse’s evidence is that 14th defendant told him that “ he ”(which Rajapakse understood to refer to 3rd defendant) wanted to seeRajapakse at 7 p.m., the evidence of 3rd defendant is that Rajapaksetelephoned to him at about 12.30 p.m. and informed him of the ArmouredCorps going to the Port ; he then told Rajapakse to come to 15th defend-ant’s house at about 7 p.m. and when Rajapakse asked if he mightbring 14th defendant, 3rd defendant agreed.
According to Rajapakse, 2nd defendant or 3rd defendant remarkedabout the D. I. G., C. I. D. and S. P., C. I. H. having been seen leavingStanley Senanayake’s house, and the Governor-General having beenseen going towards Mount Lavinia. The former remark was, accordingto 4th defendant, information which Stanley Senanayake gave himwhen he met Senanayake that evening at the Conference. It couldwell have reached 3rd defendant if 4th defendant, as we think, methim at “ Homelea ” before the Elibank Road meeting. Rajapakse alsosaid that somebody made a remark about 5th defendant, which he didnot hear clearly but which 14th defendant said was a remark that 5thdefendant had gone round the outstation police stations to get support.Before those present dispersed, 3rd defendant informed them that theyshould meet at Kinross Avenue at 8.30 p.m.
3rd defendant in evidence said that it was he who fixed the meetingat 15th defendant’s house, and that house was selected by him because15th defendant happened to telephone to him when he and the 2nddefendant were discussing where they should meet the Army officerswhom they wanted to alert about Mr. Bandaranaike possibly attemptingto seize power and become a dictator. 3rd defendant also said thatit was he who telephoned to 7th defendant that afternoon and askedhim to bring his junior officers 8th, 9th, 10th, 11th and 12th defendantsto Elibank Road that night. He said that it was he who rang mostof the officers that afternoon, and he took the responsibility for callingthe meeting of officers at Elibank Road. 3rd defendant said that hedid not see 6th defendant, 9th defendant, 10th defendant, 11th defendantor 12th defendant there ; he did not hear any reference to the 5th.defendant or to the D. I. G., C. I. D. or S. P., C. I. D. leaving StanleySenanayake’s house. He said that when 7th defendant and 8th defendanttold him that they had some wireless test fixed for 7.30 or 8 p.m., heasked then to cancel it or to ask somebody else to carry on without them,as he wanted them at Kinross Avenue.
Lt. Col. Abeysinghe who was at the Elibank Road meeting said thathe went there because 2nd defendant telephoned to him at about 3 p.m..to come there. He saw 9th defendant and 10th defendant there—although 3rd defendant said that he did not see them—but he d'd notsee 6th defendant. Even as regards 11th defendant and 12th defendant,whom 3rd defendant said he did not see at Elibank Road, we have theevidence y>f witness Gnanaratnam, the driver who said that he drove 10,11 and 12th defendants to 9th defendant’s flat that evening where hedropped them prior to returning to Echelon Square at 6.55 p.m. It is notunlikely that 11th defendant and 12th defendant went to 9th defend-ant’s flat with 10th defendant because they had a meeting to attendtogether later.
Lieut. Col. de Alwis also went to 15th defendant’s house at 7 p.m.because 2nd defendant telephoned to him to come there. He said hesaw 2nd, 3rd, 13th and 15th defendants, Abeysinghe and Rajapaksethere. He did not remember seeing any others there.
Both Abeysinghe and Alwis said that 3rd defendant asked them tomeet him again at Kinross Avenue at 8.30 p.m. He gave them noinformation as to why they had been asked to come to Elibank Road.
We now continue the prosecution story of that night’s events. Asrequested by 3rd defendant at Elibank Road another gathering of officerstook place again at the end of Kinross Avenue by the railway line.
There are, as one would expect, different versions of who was seenthere, at what times they came, what was said, and by whom. Thechief prosecution witness about this meeting is Rajapakse who saidthat he went there with 7th defendant, 8th defendant and 14th defendantfrom 8th defendant’s house in 8th defendant’s car at about 8.30 p.m.He also said that all those who had been at the earlier meeting at Elibank.Road were also at Kinross Avenue, except for 6th defendant; that2nd defendant and 3rd defendant came together at about 9.10 p.m.(the time mentioned in his statement at Temple Trees was 8.55 p.m.).
He denied that he saw 2nd defendant there before 3rd defendant came.In evidence he said that, after coming there, 3rd defendant said thateverything did not seem to be going well and they may have to callit off: in his statement he said : “ Col. de Saram got us together andsaid that something seems to have gone wrong. They were not certainwhether it will come off that day, but he declared the plan.”
The password was given as “ Yathura ”, and the operation was tobe known as “ Holdfast ”. Then 2nd and 3rd defendants betweenthem gave the following tasks. 13th defendant was detailed to dosome work at the C. T. O. the words used being “ You know your taskat C. T. O.” and 13th defendant replied : “ Yes, everything is all right.You can perform it within 2 or 3 minutes.” Rajapakse said that hehad overheard an earlier conversation between 13th defendant andAlwis about putting Exchanges out of action. 15th defendant wasdetailed to attend to another Exchange. Rajapakse was told to gowith 4 armoured cars to Queen’s House : and to send 4 more to Kirilla-pone Bridge to prevent persons leaving or entering Colombo. Rajapaksein his evidence first said that he was asked to send the 4 cars to Queen’sHouse, but later agreed that he was to go with them, when hewas reminded of what he had said in his statement. 9th defendantwas to go with a platoon to Queen’s House at ‘ H ’ hour.
17th defendant was told that he and 16th defendant (who. was notthere) should go to Lake House with some volunteer troops to preventanybody entering or leaving. 10th defendant and somebody else wereto go to the Times of Ceylon building with some troops.
8th defendant was to be in charge of Echelon Square (but this wasnot mentioned by Rajapakse in his statement). Abeysinghe was tobe at Army Headquarters where, according to a remark of Abeysinghe,there were 3 platoons under his control. Alwis was given a task butRajapakse could not remember it.
If the operation was to be called off a message would be sent “ Theappointment tomorrow morning cannot be kept ” or words to that effect.There was to be no move before 1 a.m. and the operation was to beput into effect only after the Governor-General, the Army Commander,the D. I. G., C. I. D., and the Navy Commander had returned to theirhomes to sleep. Rajapakse said that from Kinross Avenue he and 14thdefendant eventually went to Rock House Camp reaching there atabout 11 p.m.
Abeysinghe said that he too got to Kinross Avenue at about 8.30 p.m.and met Rajapakse and 14th defendant there. He said that he saw2nd defendant and 10th defendant there, and he thought he also sawAlwis, and later on most of the Army Officers. When 3rd defendantcame, the others walked towards him and 2nd defendant and 3rddefendant started talking. Abeysinghe said that he had his assignment,and 11th defendant was asked to attach himself to Abeysinghe. Possible
assignments were discussed for various persons. The password“ Yathura ” was mentioned by Abeysinghe when another password** Holdfast ” was mentioned.
Abeysinghe also said that the question of guards being provided atLake House and the Times of Ceylon building transpired. He gotthe impression that Queen’s House was going to be the operational Head-quarters and that some armoured cars were to be sent there. Whenhe asked about the means of communication with Queen’s House,3rd defendant said that an armoured car would be placed at ArmyHeadquarters, if possible, so that he could communicate with Queen’sHouse by radio. When he asked where the Army Commander would be,2nd defendant told him that he would be at Queen’s House. 3rddefendant also said that if something definite was going to happen, hewould call the “ O ” Group of Lieut. Colonels if necessary, but theywere all asked to go and stand by their phones. 3rd defendant alsosaid that the Governor-General was sympathetic towards this move,and that he would not take any action without first informing the latterand getting his approval.
Alwis _ also gave evidence as to what happened at Kinross Avenue.Both he and Abeysinghe said that 3rd defendant came some time afterthe other officers had assembled there, and mentioned about a possiblemove by Mr. Bandaranaike to seize power in the country.
Alwis said that 3rd defendant discussed with the officers there for about .half an hour the probable tasks that he would allocate with the intention,of stopping that ; he discussed with 13th defendant about how long itwould take to disrupt communications at the C. T. O., but Alwis could notremember 13th defendant’s reply. 3rd defendant also talked about the •Havelock To – * Aa OiUu. Maradana Exchanges but Alwis could not rememberwhat was said. 3rd defendant asked Alwis if he would be available to goto Army Headquarters to answer telephones, half an hour after theoperation came into force, and the code word “ Holdfast ” was mentioned.The code word “ Yathura ” was also mentioned, to be used by anybodywho wanted to enter Army Headquarters. Queen’s House was discussedand something said about its protection. There was a discussion aboutthe Lake House and “ Times ” buildings and 3rd defendant said some-thing like “ Leave those fellows alone.” 3rd defendant said he wouldsummon an ‘ O ’ group of officers and give the orders if the necessity arose.
We have expressed our opinion elsewhere of both Abeysinghe andAlwis. It is sufficient to say here that they demonstrated plainly theireagerness to shape their evidence to help the defence.
On January 16th Stanley Senanayake, S. P. Colombo, held a Conferenceof his gazetted officers at the instance of the 4th defendant for the purposeof forming a squad to trail Leftists. Senanayake asked the officers whoattended to select a few men from each Police Station and get them toreport to the S. P. Crimes (18th defendant). When 20th defendant said
at the Conference that trailing Leftists was a special job, it was agreed towatch the Leftists’ residences instead, and the specially chosen men wereto report to the S. P. Crimes after watching. The significance of thisscheme to watch the Leftists’ houses will appear later. The file whichcontains notes of the residences of Leftists and the ways of watching themhas been put in evidence by Mr. Kannangara and marked 19D®*.Selected Constables were interviewed and given instructions as to whatto do, when they came before Senanayake. At this time also 4th defend-ant telephoned A. S. P. Munidasa and told him to check on the under-ground telephone system which linked the S. P. Colombo’s office with thePolice Stations in Colombo. 4th defendant had a few days earlier askedhim for a list of the Police Stations on the teletype network, and he sentit to the 4th defendant.
The witness Vandendriesen, A. S. P. Depot, has stated that about twoweeks before 27th January 4th defendant sent for him to Police Head-quarters and told him that there was a move to overthrow theGovernment. When Vandendriesen laughed, 4th defendant said : “ Yesthe Military are in this and it is coming from the top, so come in.”Vandendriesen, like Col. Abeysinghe, said that he thought the expression“ from the top ” referred to the Governor-General; and he replied ** Allright, I will come in.” According to the record of his statement made at= Temple Trees on 19th_Februarv (4D15) Vandendriesen stated : “ About2 weeks before 27.1.62 Mr. C. C. Dissanayake asked me to come to hisoffice at Police Headquarters. It was an afternoon at about 3 p.m. Thenhe said to the following effect: ‘ Are you ready to come in if we get rid ofthis Government ? * Having referred to 4th defendant making a state-ment about it “ coming from the top ”, Vandendriesen stated (4D16) “ Idid not fhink of anything when he said * coming from the top.’ I don’tknow what he meant. He said that there are big people involved. . Ithought that there were people bigger than Mr. C. C. Dissanayake—probably persons outside the Government—I agree that the Governmentcannot topple itself.” The purpose of Mr. Kannangara marking these twopassages was to show that Vandendriesen did not, in his statement, usethe expression “ overthrow the Government ”, or say that he knew themeaning of the expression “ coming from the top ”.
To continue the evidence given by Vandendriesen, he has said thatabout a week later 4th Defendant sent for him again and told him that hisjob was to arrest Mr. Bandaranaike. Vandendriesen said he exclaimed :
“ Good God ” or some such words, but agreed to the proposal. 4thdefendant has denied that he intended Vandendriesen to arrestMr. Bandaranaike. He has said that he himself, along with Mr. Jayakody,S. P., was going to arrest him. But he had never informed Jayakody ofthat.
Further, Vandendriesen has said that about three days before 27thJanuary, 4th defendant telephoned to him to bring 3 automatic weaponsthat evening to his house and he agreed. He collected 3 Stirling guns in
8R 7431 (7/65)
a box along with some empty magazines, and took them to 4th defend-ant's house. He was asked by 4th defendant to show him how the gunswere assembled (the proper description of the process would be“ unfolded ”), and he showed him also how the magazines were fitted tothe guns. It may well be that 4th defendant did not need to be shownhow the guns were unfolded as he had enough knowledge of guns toapprove of the Manual of Musketry and Revolver Shooting whichMr. Kelaart had drafted. Vandendriesen said that 19th Defendant waspresent at that time. When 4th defendant asked Vandendriesen if hepould bring him ammunition, Vandendriesen said he could not, and 19thdefendant said he would attend to that.
These allegations made by Vandendriesen have been denied by the 4thdefendant and 19th defendant. They denied that 19th defendant waspresent on the evening of 25th January when, as 4th defendant hasadmitted, Vandendriesen took 3 Stirling guns and 6 empty magazines to4th defendant’s house about 5 p.m. (admittedly on 4th defendant’sorders). 4th defendant said he found fault with Vandendriesen forbringing empty magazines and told him to take them away, get themfilled, and let him have them by the 27th when he asked for them.
Undoubtedly Vandendriesen’s failure to make the proper entriesregarding the removal of 3 guns, in the books maintained for that purposeat the Police Depot Armoury, was a serious neglect of duty. Mr. Kelaarthas said that such an entry was imperative, every time a gun wasremoved from the Depot. This is the obvious means by which theArmourer can account for the disposition of weapons in his custody.What was the reason for the omission % If Vandendriesen had not beentold of any plan before January 25th, it is unlikely that he would not havecomplied with the regulations by entering the removal of the 3 guns. Themere fact that 4th defendant wanted them was no excuse for omitting tomake the entries. But Vandendriesen very probably knew that the 3guns were required in connection with the move about which 4th defen-dant had spoken to him twice previously. Hence no entries were made,even though the 3 guns were left in the possession of the 4th defendant.
The failure of Vandendriesen to obey 4th defendant’s order to bringthe 6 empty magazines filled is explained by Mr. Kelaart’s evidence thatno ammunition could leave the Depot unless he personally authorisedsuch removal: that was an order he had previously made.
About 6.30 p.m. that evening, 4th defendant, 19th defendant, A. S. P.Sol Gunatilleke and A. S. P. Johnpulle travelled in 19th defendant’s carfrom their respective houses to the Police Mess to play bridge. Guna-tilleke said that, when they got out of the car at the Mess, 4th defendantcalled him back while 19th defendant and Johnpulle entered the Mess.4th defendant asked Gunatilleke to be Duty Officer from 9 p.m. on the27th to 9 a.m. on the 28th in place of A. S. P. Dickman. 20th defendant’sname had been entered in the relevant book as Duty Officer from 1 p.m.to 9 p.m. on the 27th. Gunatilleke accordingly telephoned Dickman and
made arrangements with him to be Duty Officer, although Dickman hadalready asked A. S. P. Selvaratnam to act for him, as Dickman hadarranged to go to Kurunegala. Gunatilleke said that on the way homefrom the Mess that night 4th defendant inquired from him if he had madethe necessary change, and also told him to await orders. Gunatillekewas not told the reason for the change, and when he tried to find out thereason from Johupulle and 19th defendant they told him that they didnot know the reason either, but 19th defendant told him that he would besummoned to a Conference and would be informed.
4th defendant admitted that he gave these instructions to Gunatilleke,but he said he did so openly at the bridge table. His reason for havingGunatilleke as Duty Officer was that he wanted the Duty Officer to beclose to his house, and Gunatilleke lived next door to him. But thesignificant detail, which we cannot lose sight of, is that on the 25thevening 4th defendant was making arrangements for some event which hethen anticipated would take place on the 27th.
It was on the morning of 26th January, according to Stanley Sena-nayake, that 4th defendant first informed him of the plan to overthrowthe Government. He said that when he went to 4th defendant’s room atPolice Headquarters on being sent for, 19th defendant also came there.4th defendant then spoke of the strike situation and the decliningeconomy; he accused Mrs- Badiudin Mohamed of- having—ruined- thecountry’s education ; he said that the Government must be changed andthe Ministers and the Leftists arrested. 4th defendant asked him if hehad held the Conference to instruct gazetted officers that no leaveshould be allowed from 24th January to 29th January, and he said thathe had. ^When he asked 4th defendant if the Inspector-General of Policehad been informed, 4th defendant told him that the I. G. P. would beinformed. He was asked to meet 4th defendant again that afternoonafter the Police Sports Club Committee Meeting which had been fixed for3 p.m.
Stanley Senanayake said that he was summoned again to 4th defen-dant’s room at about 3.45 p.m., and 19th defendant was also there. 4thdefendant continued to speak on the same subject, and told him thatthere was a large organization for the plan to overthrow the Government,including the Army, Navy, Air Force and most of the senior PoliceOfficers ; that Sir John Kotalawala and Mr. Dudley Senanayake knew ofit and that Mr. Dudley Senanayake had agreed reluctantly, because hehad wanted to make it an entirely U. N. P. show but the others wereagainst that. 4th defendant also told Stanley Senanayake that Mr.Dudley Senanayake tried to talk down to bim but was told not to do thatas all are equals in it; Sir John Kotelawala, according to the 4th defend-ant, said : “ You young fellows carry on, and if there is any trouble Iwill stick my neck out ” ; the Governor-General was aware of the planand approved, and Sidney de Zoysa and Royce de Mel had been contacted.
: Further details which Stanley Senanayake said 4th defendant gavehim were: once the arrests of the Ministers and the Leftists hadbeen carried out after midnight on the 27th, radio cars with loud hailerswould go round announcing a curfew, and there would be a radio broad-cast at 6 a.m. to announce the new Government; 4th defendant had beenoffered a Cabinet post, but he preferred to stay where he was ; even thethen Prime Minister may be taken into the Cabinet; two Supreme Courtjudges had drawn up a new Constitution.
4th defendant proceeded to tell him of certain Code names, such as“Handsome” for Stanley Senanayake, “Satha” for Sir Oliver Goone-tilleke, “ Parsee ” for Sir John Kotelawala, “ Shelly ” for Mr. DudleySenanayake, “ Mac ” for the 19th defendant, “ Smartie ” for Lieut. Col.Attygalle ; and that the Code word was “ Yathura ”.
The documents P20A to P20J which were discovered in the incineratorat Police Headquarters on the 29th January contain these and otherCode names. They are all in 4th defendant’s handwriting, and they willbe referred to in another part of this judgment.
4th defendant and 19th defendant then gave Stanley Senanayake thenames and addresses of eight Leftists from a Telephone Directory, and he was.asked by 4th defendant to take them down, which he did. The names wereColvin.Ri. de Silva, N. M. Perera, Philip Gunawardena, Pieter Keuneman,Shanmugathasan, Bala Tampoe, M. G. Mendis and S. P. Amarasingham.He said that he was not told what to do about these persons. Headmitted that he burnt this list on the evening of 28th January after hereturned home from Temple Trees because he was feeling so bewildered,and not because such a list would establish that there were Governmentorders to arrest Leftists in order to break the General Strike—which wasthe suggestion made in cross-examination.
4th defendant then told Stanley Senanayake that he would speak tohim on the 27th morning, and asked him to summon a Conference ofgazetted officers who were to come in civil clothes on the 27th at 6 p.m.to the S. P. Colombo’s office. Stanley Senanayake said that 19th defend-ant, who noticed that he was in distress, patted him on the back andsaid : “ Everything is well planned and will go through ; don’t worry.”
It has been admitted by Stanley Senanayake that in his recordedstatement made at Temple Trees on 28th January at 4.50 a.m. he madeno mention of 4th defendant having told him anything on the 26thmorning about changing the Government or arresting Ministers andLeftists; nor did he say that 19th defendant was present when 4thdefendant spoke to him that morning. It was on 19th February 1962 thathe first said that these statements were made by 4th defendant on the26th morning. Stanley Senanayake’s explanation for the omission isthat he had listened to such a lot of things, he had gone through such an“ ordeal ” and had so many drinks before he made his statement on the28th, that he could not present the facts at the moment in their propersequence, but as far as possible he gave the main facts. Mr. Ponnambalam
showed, by putting the words of the statement to the witness, that he saidthis with regard to the afternoon conversation : *■* D. I. G. told me thatthere was a scheme to arrest the Leftist Leaders and the Ministers and heasked me where the Ministers resided. I told him where they resided. Iasked him, «* Is I. G. aware of this or has he been informed 1 ” Mr. Dissa-nayake said he would inform I. G. of this. I was thoroughly shaken whenD. I. G. spoke of the scheme to arrest the Leftist Leaders and theMinisters. I understood this to mean a plan to overthrow the Govern-ment. When I told him ‘ Is I. G. aware of this or has he been informed Vit was an attempt on my part to stop the scheme from going any further.”In order to get the context right we allowed Crown Counsel to elicit thewords that followed. They read :—“ I was aware that the I. G. Policewould not be a party to any scheme to arrest the Ministers. To continue,I asked D. I. G. how he proposed to carry out this scheme. He said thatthere was a big organization behind this and Sir John Kotelawala was init and also Mr. Dudley Senanayake who was reluctantly in it and thatthere were even higher people in it. I am asked what I understood by* higher people I did not give this much thought at that time.”
Stanley Senanayake said that he was shocked by what 4th defendanthad told him. His subsequent conduct is relevant in this connection.When he returned home that night, he telephoned his brother Lionel’shouse but Lionel was out. It has been proved that a telephone callwas made at 8 p:m. from Stanley Senanayake’s house (Phone- No.8784) to Lionel Senanayake’s house (Phone No. 413 Mount Lavinia) —*see P 116b and P. C. Munasinghe’s evidence. Stanley Senanayake saidthat he and his wife went to Lionel’s house about 9.45 p.m. and metLionel; that he discussed the matter with Lionel; and they agreed thatStanley’s father-in-law Mr. P. de S. Kularatne should be summoned asa possible means of communicating the information they had to the
G.P. Stanley Senanayake explained that he could not .himself informthe I.G.P. about these matters because 4th defendant was “ the mostsenior D.I.G. and a very powerful gentleman ” and “ Mr. Thuraisingham(S.P., W.P. Central) and the whole crowd would never have stood upagainst 4th defendant.” Stanley Senanayake had to admit that he hasnever, in any statement, mentioned the decision made by him and hisbrother to summon Mr. Kularatne.
4th defendant’s version of his meeting with Stanley Senanayake onthe 26th morning is quite different. He said he told Stanley Senanayake“ If an illegal order comes, I will arrest Felix Dias. Your job is to arrest
N.Q. Dias. You can choose any personnel you like. You must watchhim from the 27th morning and that is your job,” and that Stanleyagreed with enthusiasm. He said he also told Stanley that he wantedan officer to watch Rajan Kadirgamar, and another gazetted officer forvarious jobs, and Stanley suggested A.S.P. Johnpulle (to watch RajanKadirgamar) and 20th Defendant. He said that Stanley Senanayakeasked for gazetted officers and equipment from the Training School,and vehicles from the Central Garage, and he agreed ; and when he spoke
of these matters to D.I.G. Wambeek, the latter also agreed. He suggestedthat if Brohier and Arumugam were ever asked to play any part, it couldonly have been because Stanley Senanayake, a good friend of theirs,might have asked them. It is a matter for comment that Brohier andArumugam implicate 5th defendant and not Stanley Senanayake asbeing responsible for their participating in the plot. 4th defendant didnot admit that anything important happened between him and StanleySenanayake on the 20th afternoon.
It is agreed between Stanley Senanayake and 4th defendant that onthe 26th evening 4th defendant told Stanley Senanayake that he wouldpick him up and take him for a walk on the 27th morning ; and that hedrove Senanayake from the latter’s house at 6 a.m. to the variousplaces mentioned by Senanayake. They included All Saints’ Church,Borella, and St. Anthony’s Church, Kochchikade. 4th defendantthen drove towards Galle Face. Senanayake said that on the way, atthe C. T. O. roundabout, 4th defendant suggested that they should goand get Senanayake’s rubber stamp with his name from his office, as itmay be needed in connection with some orders to be issued, but Senana-yake demurred. They then walked on Galle Face where 4th defendantasked Mr. Atukorala, the Governor-General’s Secretary, whether theGovernor-General would be in that evening ; and they also met certainother persons there.
Stanley Senanayake said that on their walk 4th defendant againmentioned that there was a big organization behind the plan ; and on thedrive back home 4th defendant again asked him about signing orders.We shall discuss this point elsewhere.
They returned to Senanayake’s house about 7.30 a.m. after which4th defendant drove away. Stanley Senanayake said that he bookeda telephone call to Mr. Kularatne, and his wife spoke to her father. Inhis statement he has said, however, that it was his wife who booked thecall. It has been proved by the witnesses Pemawathie and YasawathiePerera and the entries in the Trunk Call Ticket (P 117) that a trunk callfrom Senanayake’s house to Mr. Kularatne’s house was made shortlybefore 8 a.m.
Senanayake said that on learning that Mr. Kularatne would be comingto Colombo that afternoon he telephoned to his Personal Assistant,A.S.P. ‘ Tiny ’ Seneviratne, to summon a Conference of Colombo Divisionofficers for 6 p.m. that evening at his office. Mr. Seneviratne supportedhim on this point, and said that he contacted all the Colombo gazettedofficers except A.S.P. Sol Gunatilleke who was to be Duty Officer thatevening. Mr. Seneviratne said that although A.S.P. Vandendriesen, S.PDedigama, A.S.P. Mendis and S. P. Thuraisingham attended that even-ing’s Conference, they had not been summoned by him ; the evidenceshows that it was 4th defendant who summoned them.
What happened after Mr. Kularatne’s arrival at Stanley Senanayake’shouse at about 3 p.m. will be discussed elsewhere.
We have another witness A.S.P. Johnpulle who claimed that he was toldof the plot, which is the heart of the prosecution case, by 4th defendanton the 27th morning in the presence of 19th and 20th defendants.
Johnpulle said that he was summoned by 4th defendant to his officeat about 9.15 a.m. that morning. 4th defendant told him “ Johnpulle,do you know what is happening today ?” and also “ We are taking overthe Government today.” After 4th defendant had said that, 19th and20th defendants came into the room. 4th defendant then gave John-pulle and 20th defendant certain instructions. He said : “ I have selectedyou two chaps for the toughest assignment ” and told them that theyhad to arrest the Navy Commander Rajan Kadirgamar at aboutmidnight when they received an order in Code. He gave them as Codewords “ Holdfast—Arrest ” ; ** Commo ” as the Code name forKadirgamar and “ Mack ” for 19 th defendant. 20th defendant was toldto assist Johnpulle. They were ordered to take a party of 2, 2, 30 tocarry out the arrest. After arresting Kadirgamar they were to take himto Army Headquarters and hand him over to S.P. Arndt, and use thepassword “ Yathura ” in order to enter the Headquarters. They shouldthen go to Queen’s House and report there.
Johnpulle was told to start shadowing Kadirgamar at once, and inform19th defendant on the telephone of Kadirgamar’s whereabouts at 3 p.m.,5 p.m., 11 n.m. and 12.01 a.m.; and if he was sleeping, 19th defendant wasto be told “ Commo roosting When these orders were given, 19th defen-dant was standing there with a pad in his hand. 19th defendant reminded4th defendant of ladders, and 4th defendant then told Johnpulle thatladders would come from the Training School and he should take chargeof them and keep them at the Traffic Station.
Johnpulle was also told (1) to send 15 motor cyclists with armedpillion riders at 11 p.m. to Torrington Square where 19th defendant wouldmeet them, (2) to get a covered lorry to stand by at the Traffic Stationfrom 9 p.m., and (3) to keep the Radio Cars with the loud hailer systemin readiness at midnight to announce a curfew.
Johnpulle said that 20th defendant asked ” Is the I. G. P. aware ofthis ? ” and 4th defendant said “ I have looked into that.” 4th defendanttold them to attend a Conference at 6 p.m. at the Superintendent ofPolice Colombo’s office in civils.
Johnpulle said that he took steps that morning to comply with theinstructions he had received. He gave orders to Inspectors Imbuldeniya,Mendis, Samaradasa and Sub-Inspector Sheriff. Imbuldeniya did notsupport Johnpulle in all the details which Johnpulle mentioned inevidence. He said that at about 11 a.m. Johnpulle ordered him (1)to arrange for all Traffic personnel to report at the Traffic office at 10 a.m.for a mass patrol; (2) to detail 15 motor cycle patrols and 15 armedpillion riders to report at Independence Square by 11 p.m. ; (3) to standby with 25-30 men at Traffic Headquarters with rifles for instructions;and (4) to have all the Radio Cars available.
Mendis said that at about 10.30 a.m. Johnpulle told him there wouldbe a mass patrol that night, at 10. p.m. and asked him to get a pair ofhandcuffs and be ready, also that he should be armed himself. Mendissaid that he obtained a pair of handcuffs at about 8 p.m. and he wascorroborated on this point by Police Sergeant Belleth and Police SergeantSiripala.
Samaradasa said that he was told by Johnpulle to start shadowingKadirgamar immediately, along with Police Sergeant Ganegama, andto contact Johnpulle thereafter. He did so, and he spoke to watchingKadirgamar—at Queen’s Hoad, and at the Regal Theatre—and tocarrying out this assignment until midnight.
Sheriff said that Johnpulle told him that morning to obtain a coveredlorry by 10 p.m. as it was needed for operation. He accordingly arrangedto get such a lorry from Jafferjee Bros, and the lorry was brought to theTraffic Office that night. Witnesses M. T. Fernando and A. A. Jafferjeecorroborated this part of Johnpulle’s evidence.
Sub-Inspector Warakagoda said that he came to the Traffic Stationat about 10 p.m. for a Mass Patrol, in obedience to a notice which hesaw that morning on the Notice Board. Imbuldeniya then told him^o take 15 motor cyclists and armed pillion riders to Torrington Squareat 11 p.m. and await the arrival of Johnpulle. Arms and ammunitionwere drawn for this purpose.
Imbuldeniya said that at about 10.30 p.m. the Inspector-General ofPolice telephoned .to him and enquired what had been happening, andordered him to disperse the men, which he did.
Two Conferences with groups of gazetted Police Officers were heldby 4th defendant on the 27th, one in the morning and one in the evening.It is necessary to refer to these in some detail.
The morning Conference was held at about 10.30 a.m. and was attendedby Thuraisingham (S. P., W. P. Central) and 5 A. S. P’s under him—Lionel Senanayake (brother of Stanley Senanayake), Bartholomeusz,Ranasinghe, Jayasinghe and Samaraweera. 19th defendant was alsopresent. All the A. S. P’s mentioned, except Jayasinghe, have givenevidence and the general effect of it is that 4th defendant first complainedto them of a Member of Parliament who had tried to get him to transfera Constable : he was then called away to the I. G. P’s office but returnedin a short time. He then read out a list of names from a paper, sayingthat they were Leftists who had to be arrested. Thuraisingham tookthe names down (P3). The names were Robert Gunawardena, EdmundSamarakkody, K. M. P. Rajaratne, Stanley Tillekeratne, SomawiraChandrasiri and Wilfred Senanayake. When 4th defendant askedwhether there were any other trouble makers, Lionel Senanayake suggestedthe name of one Livera. 4th defendant mentioned Mendis and Metta-nanda also as trouble makers who should be arrested, but he was told
that they resided outside the jurisdiction of these officers. 4th defendantsaid that the arrests were to be made between midnight and 1 a.mand orders to arrest would come from Headquarters or the Inspector-General of Police, and the arrests were going to be made on the ordersof Government.
4th defendant then took Thuraisingham and Ranasinghe to theInspector-General of Police’s office because Ranasinghe wanted to stagea “ Nadagama ” in February, but owing to the expected general strikethe Inspector-General of Police said that it could not be held in February.
After that 4th defendant spoke to Thuraisingham and Bartholomeuszalone in his office. 4th defendant having asked Bartholomeusz if heknew where Udugama lived; Thuraisingham told him that he livedin Lunawa. 4th defendant telephoned to No. 7035, which was Udugama’sbungalow telephone number, and spoke to a servant who told him thatUdugama was in Jaffna. 4th defendant then told them that Udugama’shouse must be placed under surveillance.
Thuraisingham and Bartholomeusz then left 4th defendant’s officeafter Thuraisingham had been told to come to S. P. Colombo’s office incivils at 6 p.m. that evening.
Action was taken by Thuraismgham to detail officers to carry out thearrests, and he also told Bartholomeusz to have a party ready to watchUdugama’s house. The evidence detailed above is not seriously con-tested by 4th defendant, who said that he told the officers at thatConference to arrest all trouble makers, and that the names he gavethe officers were on a list which Abeykoon gave him earlier that morning.Obviously, however, he was not confining the arrests to the namesappearing in the alleged list.
Before we refer to what happened at the 6 p.m. Conference we shallmention certain other orders 4th defendant gave his officers on the 27thmorning.
We have already referred to his instructions given to Johnpulie and20th defendant before the 10.30 a.m. Conference. The next officer4th defendant interviewed was Assistant Superintendent of Police(Transport) Jayatileke at about 11 a.m.
Jayatileke said that he had been asked by 4th defendant to see himat 11 a.m. He waited outside till the 10.30 a.m. Conference was over,and after that Conference was over he saw 1st defendant going into 4thdefendant’s office and coming out in 5 to 10 minutes. Some commentmust be made with regard to this meeting between 4th defendant and1st defendant. 4th defendant said that he had no recollection of seeing1st defendant on the 27th, while 1st defendant admitted that he wentto 4th defendant’s office at about 11 a.m., because 4th defendant had3 or 4 days earlier told him to come, without troubling to make an
appointment, to see him about an illicit liquor booth which was beingrun opposite a friend’s ho use!.'in Thimbirigasyaya. 1st defendant saidthat he was not longer than 2 or 3 minutes in 4th defendant’s office.One significant fact regarding this meeting is the evidence of Sub-Inspector Karunadasa who was on duty that morning in the InformationRoom. He said that 4th defendant telephoned to him at about 9 a.m.to send Mr. Liyanage up when he comes. Another matter which shouldbe mentioned is that when 1st defendant was questioned at TempleTrees on 2nd February he is recorded as having said: “ I have hadoccasion to meet C. C. Dissanayake once. That was a day or two beforethe token strike ” (P 167). This statement is incorrect if it was made,because admittedly he met C. C. Dissanayake twice. It is our viewthat it was made, notwithstanding 1st defendant’s explanation to thecontrary. It would be seen that 1st defendant and 4th defendant didmeet that morning in 4th defendant’s office : and yet both 1st defendant(on 2nd Februar}') and 4t.h defendant (in his evidence at the trial) seemedreluctant to admit that meeting though they could not have forgottenit, and this is undoubtedly a circumstance which we can take intoconsideration against them.
Now Jayetileke’s evidence is that on the 27th morning, 4th defendant* told him that he wanted transport that night, saying it was needed“ to jump on the Communists before they jumped on us that hewould personally call for the transport; and that about 15 vehicleswere needed for the arrest of Communists. Jayatileke returned to theTransport Office and instructed Inspector Wickremasinghe at aboutnoon to have all available jeeps and cars ready as they would be requiredby 4th defendant. Jayatileke said that he met Mr, S. A. Dissanayake,D. I. G., C. I. D. at 1.30 p.m. and 7 p.m. and that after the secondmeeting he instructed Inspector Wickremasinghe not to release transportunless he gave orders personally. Inspector Wickremasinghe, however,did not support Jayatileke on this point. But they both said thatabout 10 p.m. they went together to the Police Garage and the gatesof the Garage were locked. A good deal of the cross-examination ofJayatileke was directed to certain alterations of the typed statement(the entirety of i* has been marked 1D2) made by him on 19th April19C-2 at the C. I. D. office. Those alterations are in the handwriting ofMr. S. A. Dissanayake, and they were made, according to Jayatileke,without his permission or knowledge. These matters may have beenimportant in some other connection, but they do not have much bearingon Jayatileke’s veraci.y. Indeed, we are unable to understand why itwas suggested to Jayatileke by Mr. Kannangara(l) that he did not cometo Police Headquarters till after noon on 27th January and (2) that hewas sent to Temple Trees on 2nd February to have a good look at 1stdefendant, when 1st defendant himself had admitted not only thathe entered 4th defendant’s office at Headquarters before noon, but alsothat he met Jayatileke at Temple Trees and spoke to him on the nightof 1st February. We cannot help remarking that if pointlesscross-examination of this type had not been indulged in, much timewould have been saved. Counsel too seldom reflected on the purposeof some of the questions put to witnesses. We need only add thatMr. Kannangara appeared for 19th defendant who himself said that1st defendant was taken by him into 4th defendant’s room on the27th morning.
The next officer, after Jayatileke, whom 4th defendant interviewedthat morning seems to have been Rosemalecocq (S. P., W. P. (South) ),who saw 4th defendant at his request. 4th defendant told him to beready to arrest trouhle makers like Leslie Gunawardena on receipt ofan order from the Inspector-General of Police about midnight. Thisevidence is not contested by 4th defendant.
At about 11.15 a.in. 4th defendant next saw Dep (Additional S. P.,Headquarters) and told him that they were going to carry out a raid andasked him to come to the Information Room at 11.45 p.m. to attendto messages. Dep said that he did uot in fact go to his allotted post,because 4th defendant telephoned to him at 11.45 p.m. and asked himnot to come.
4th defendant next interviewed Abeysekera (A. S. P.. Headquarters)and told him to report at the Information Room at 11.45 p.m. Abey-sekera obeyed the order. When he telephoned 4th defendant from theInformation Room that night, after hearing the Inspector General ofPolice’s special message to gazetted officers being relayed at aboutmidnight, 4th defendant told him to go home.
At about 11.40 a.m. 4th defendant interviewed Arndt (Superintendentof Police, Headquarters) and told him that certain arrests (of about 70persons according to Arndt) had to be made that night, and he wantedArndt to act as liaison officer with L>cut.-Col. Abeysinghe at the gate ofArmy Headquarters at a time which Abeysinghe would fix. Arndt’stask as given to him by 4th defendant was to identify the Police Officers,if the Army had doubts about those officers, when they brought inarrested persons. 4th defendant told Arndt that the operation was tobe called “ Holdfast ” and the passwo-d would be “ Yathura ”. Arndtand Abeysinghe were to meet at 1.30 p.m. at Arndt’s house, and Abey-singhe has stated that 4th defendant telephoned to see Arndt at 1 p.m.at Arndt’s house. As in the case of Bartholomeusz and Rosemalecocqwho were given orders that morning, Arndt was also told to keep theinstructions confidential.
It is plain from the evidence of Arndt and Abeysinghe that in orderto carry out their instructions they met by arrangement at midnightat Abeysinghe’s flat: they could not have fixed oh this time except oninstructions from a superior officer.
P.R. de S. Seneviratne (Temporary A. S. P ., Headquarters) was alsogiven orders that morning by 4th defendant to go to the Depot PoliceStation and collect a strength of 1, 2, 16 at about 11 or 11.30 p.m and
then go to the Radio Control Room at the new Secretariat. 4th defendanttold him that “ there was likely to be a change.” At about 10 or 10.30pan. Seneviratne went to the Depot and asked for the Superintendent ofPolice, Depot, but he was not in, so he did not collect the strength. Hewent to 4th defendant’s house at about 11 p.ni. but did not see 4thdefendant there, though he saw his wife and children and 18th defendantand 19th defendant there. He then went home. Seneviratne admittedthat it was only on 20th February that he mentioned that 4th defendanttold him there was going to be a change, which he understood to be achange of Government. 4th defendant has stated in evidence that heordered Seneviratne to get a party of men from the Depot and guardthe Wireless Room. His reason was “ because it is one of the nervecentres of Ceylon. From it one could transmit messages to the wholeof Ceylon.”
A significant point in connection with the orders given by 4thdefendant that morning and again that evening to a large number ofgazetted Police Officers is that they had to be at their respective postsat about midnight. 4th defendant had no reason to fix this time unlesshe was going to be in an operation which he knew would occur at aboutthat time.
1 At the evening Conference, the following gazetted officers assembledin the office of the Superintendent of Police, Colombo, on instructionsfrom either 4th defendant or Stanley Senanayake (conveyed throughhis Personal Assistant Mr. Tiny Seneviratne) viz. Stanley Senanayake,Thuraisingham, Dedigama, two Seneviratnes, Vanderwall, Munidasa,Doole, Mendis, K. A. R. Perera, Vandendriesen, Johnpulle and 20thdefendant.
Stanley Senanayake was told at a very early stage to leave the roomand to go with Johnpulle to the latter’s house. Both Senanayake andJohnpulle say that 4th defendant told Senanayake to go with Johnpulleand stay at the latter’s house until he came there. How that cameabout is a matter of some relevance.
It is quite clear, from the evidence of the prosecution witnesses andof 4th defendant, that after 4th defendant reached the Conference roomhe was informed that 2 Criminal Investigation Department Inspectorshad come to meet Stanley Senanayake. The 2 C. I. D. Officers have beenidentified, in the evidence of Inspector Kandiah, as Inspector Kandiahand Police Sergeant Abdeen. According to 4th defendant’s evidencein chief, he asked A. S. P. Johnpulle to go and tell them that he wasgoing to have a Conference, and they could meet Senanayake after theConference was over. Under cross-examination he said he told Johnpulleto go and meet them and find out what they wanted, and if it was ofany importance to inform him. Johnpulle’s evidence is that when hewas sent downstairs by 4th defendant from the Conference room tobring a bag from his car, he met Inspector Kandiah who said that hehad been sent by the D. I. G., C. I. D. to search for Stanley Senanayake.
Johnpulle admitted that he told Kandiah a lie when he told Kandiah(and Kandiah said the same thing) that Senanayake had gone out.Johnpulle said that when he went back and told Senanayake thatKandiah had come in search of him 4th defendant said to Johnpulle“ Send him away At that stage Johnpulle said he went down againand found 20th defendant (who was near Johnpulle and Kandiah onthe previous occasion, according to Kandiah, and' could have heardKandiah asking for Stanley Senanayake) telephoning Stanley Senanayake’shouse and asking for him.
Kandiah said that 20th defendant had voluntereed to telephoneSenanayake’s house and find out if he was there. So he and 20thdefendant and Police Sergeant Abdeen went to the Fort Police Stationfrom where 20th defendant dialled a number and told him that Senanayakehad not arrived at his house. Kandiah said that he then went to theTraffic Office and telephoned the D. I. G., C. I. D. and informed him ofthis.
We have not the slightest doubt that 4th defendant, Johnpulle and20th defendant deliberately prevented Inspector Kandiah from meetingStanley Senanayake whom Kandiah had been ordered to meet for ques-tioning. According to 4th defendant, Stanley Senanayake was told toleave the Conference room because he complained of a headache, and as.he. did not wish to go home 4th defendant suggested that he should gowith Johnpulle to the latter’s house. Senanayake said that he wassent away by 4th defendant after the arrival of the C-I.D. officers hadbeen announced.
A series of assignments were then given by 4th defendant to most ofthe officers at the Conference. They were as follows :—
Munidasa to go to the Radio Laboratory, Narahenpita, at 11.45 p.m.
Dedigama to guard theC.I.D. from 11.45 p.m. 4thdefendant adding
“you will get 1, 1, 16 from the Depot ” ;
K. A. R. Perera to stand by at the Officers’ Mess at midnight;
Vandendriesen to go to 4th defendant’s house ;
Doole to take a contingent and to go to the Air Vice Marshal’s
house and see that he did not leave the premises after 12.30 a.m.;
Mendis to collect 1, 1, 16 from the Depot and to go to the Army
Commander’s house and see that he did not leave the premisesafter 12.15 a.m.
D. C. Seneviratne,
C. (Tiny) Seneviratne, and
Vanderwall, who were told to wait at their homes. These orders
are, in the main admitted by 4th defendant. 18th defendant ismentioned by Doole and Thuraisingham as having been at thisConference, but they do not say that any assignment was givento him by 4th defendant.
20th defendant was told to go to Johnpulle's house at about the timethat Johnpulle and Stanley Senanayake were told to leave the Conferenceroom, and according to Senanayake, 20th defendant arrived at Johnpulle’shouse after he and Johnpulle had arrived there.
Johnpulle said that Stanley Senanayake drove him from the Conferenceto Johnpulle’s house ; on the way he asked Johnpulle to see if the C.I.D.officers were following them ; he drove straight into the garage and beforehe got out of the garage he asked Johnpulle to send away the latter’sOrderly and another person who were there; and he went upstairsthrough the back door. He described Senanayake’s condition as beingvery nervous. After 20th defendant arrived there, Senanayake askedJohnpulle, according to the evidence given by both of them, to go andinform his wife that he was all right and was not taking part (thoughthis latter detail was not mentioned by Johnpulle in any statement of his).
After 4th defendant left the Conference room, he admittedly orderedInspector Suraweera of the Fort Police Station to have an armed partyready at 10.30 p.m. as he was expecting trouble that night. Suraweeramade the order in the Routine Information Book (P 43) and an OrderBook (P 44), specifying 2 Sub-Inspectors, one Police Sergeant and 17Polipe Constablgs to be the party.
4th defendant later went on to 19th defendant’s house in order, as hesaid, to pick up Sub-Inspector Siri Chandra. 19th defendant was notat home when 4th defendant got there; he was probably at the Officers*Mess. 4th defendant said that he took Siri Chandra to his house, andfrom there to Johnpulle’s house which adjoins it.
Johnpulle and Stanley Senanayake spoke to certain telephone callswhich were then made the bedroom in Johnpulle’s house. 4th defen-dant admitted that he asked Vandendriesen to telephone to Mr. Bandara-naike’s house and find out if he was there, asking Vandendriesen to givehis name as Walker. The purpose of the call was to check on Mr. Bandara-naike’s movements. Vandendriesen telephoned Bandaranaike, sayingthat he was Walker, and told him that he would come to see him in10 or 15 minutes. Mr. Bandaranaike spoke to receiving such a telephonecall, and said that as Walker did not come he left for Temple Trees atabout 8.30 p.m.
There is disagreement between 4th defendant, Johnpulle, StanleySenanayake and Vandendriesen regarding the other telephone conversa-tions which took place from that room at about that time. Vandendriesenand 4th defendant speak to one conversation viz. the one withMr. Bandaranaike ; Stanley Senanayake speaks to two, the one withMr. Bandaranaike and another conversation in which 4th defendant tookpart. Johnpulle speaks of three. These three were, according to John-pulle’s evidence, (1) the one between Vandendriesen and Mr. Bandara-naike ; (2) another in which 4th defendant spoke to Kitto after askingJohnpulle for Kitto’s telephone number, and at the end of it telling the
others that AttygaUe would be looked after till 2 a.m.; and (3) one whereJohnpulle answered when the telephone rang and 5th defendant thensaid: “ I said I would ring you up in 15 minutes time.” Johnpulle saidhe recognised 5th defendant’s voice and gave the receiver to 4th defend-ant who spoke to 5th defendant, saying “ Yes ” and “ No
In order to contradict Johnpulle’s evidence regarding these telephoneconversations, Mr. Ponnambalam put the following passage in his state-ment of 6th February to him : “ At this time the telephone rang. Ianswered the phone. A lady asked for Mr. Johnpulle. I said I wasspeaking. Then Mr. Zoysa came on the line (and said) “ You wanted meto ring in about 15 minutes time **. I said “ Yes ” and gave the telephoneto Mr. Dissanayake. He spoke 2 or 3 words to convey that everythingwas all right.” The point Mr. Ponnambalam sought to make was thataccording to Johnpulle’s evidence 5th defendant’s call was the last andnot the first as mentioned in the statement; and the call to Mr. Bandara-naike was not the first as mentioned in his evidence. We have takenaccount of this discrepancy. At this stage, Vandendriesen was told hecould go home and await a telephone call.
4th defendant said (and Johnpulle said much the same thing) thatfrom that room he sent 20th defendant to alert some Police Stationswhich he (4th defendant) wanted alerted by Stanley Senanayake, butwhich Senanayake told him he had forgotten to alert. There is a greatdeal of evidence, given by several Police Inspectors in charge of PoliceStations, that 20th defendant ordered the Inspectors at the followingstations to have parties ready for a raid that night — Cinnamon Gardens,Foreshore, Maradana, Pettah and Bambalapitiya.
We have concluded the narrative of a good part of the evidence ofthe prosecution witnesses involving the 3rd and 4th defendants in thealleged conspiracy. We think this a convenient stage at which todiscuss some matters of general importance concerning that part ofthe evidence. Firstly, the comments and criticisms made by the defenceregarding the circumstances in which information of the conspiracjis said to have reached the Inspector-General and Mr. Bandaranaikeon 27th January, and regarding the activities at Temple Trees after,the Prime Minister was informed that night of the alleged conspiracy.Thereafter, the general criticisms urged against Mr. Abeykoon thenInspector-General of Police as being a person very easily susceptibleto political influence. Lastly, the important question whether MajorRajapakse and Superintendent of Police Stanley Senanayake shouldbe regarded as accomplices in the alleged conspiracy.
After discussing these matters, we will consider the evidence givenby the 3rd and 4th defendants at the trial.
We now refer to certain adverse comments made by the defence onthe different versions of the prosecution witnesses who were responsiblefor conveying the information which led to action being taken by theGovernment.
t It was argued by Mr. Ponnambalam that the first informant wasnot Stanley Senanayake but his wife, because it was she who summonedher father by telephone and it was she who gave Salman and VernonFernando the information which they took to Mr. Bandaranaike. Butthe only relevance of Salman’s visit to Mr. Bandaranaike, and theconversation they had at about 7 p.m., is that it occasioned a telephonecall summoning the Inspector-General of Police to Mr. Bandaranaike’sresidence. The Inspector-General of Police arrived at about 7.30 p.m.and Vernon Fernando was also summoned thereafter. Whateverinformation was conveyed to Mr. Bandaranaike by Salman and VernonFernando, and whoever was said to have given them that information,are all matters of hearsay and we cannot rely on this part of the evidenceto look for the truth.
It is true that Kularatne was summoned t'*~ ~ ,''vubo by a telephonecall made by his daughter. But Kularatn^U 6-Ves it plain
that the information he got and conveyed to the Inspectoi – c^^-ral ofPolice was given to him by the two Senanayake brothers. He methis daughter downstairs when he arrived at her house at about 3 p.m.He. spoke to her for about one or two minutes; he thought that shegave him ap inkling of the position and then took him upstairs wherehe r^et -the two^ brothers. She was not, said Kularatne, his informant.His informant was in the main Stanley Senanayake, and also LionelSenanayake.
It would be strange if the two Senanayakes and Kularatne were able,in their evidence, to recount accurately, and without some variationsin their respective versions, what passed between the three of themon the ,27th January afternoon. The most significant things theyinformed him about were a plot to overthrow the Government thatnight: that they had sent for *»un. m order, to inform the Inspector-General of Police because they found it difficult to convey it themselves,as it involved a charge against a superior officer, they had no corrobo-ration, and some people had got into trouble by doing such a thingbefore : and that the superior officer was in this case the 4th defendantwho, according to Stanley Senanayake had informed him of the plot.Kularatne then remarked to them that it disclosed a case of treasonand immediate action should be taken. The evidence of the twobrothers bears out all that Kularatne said on these matters.
Further details which Kularatne said he was told that afternoonby the brothers were that Sir John Kotelawela, Mr. Dudley Senanayake,the 6th defendant and the 6th defendant were parties to the planand that it was proposed to arrest Leftists and Ministers. Both Lioneland Stanley Senanayake have said in evidence that they told Kularatnethese things. Lionel Senanayake said that Stanley had given himthe information on the 26th night. Mr. Ponnambalam’s suggestionwas that these four persons were mentioned by Lionel Senanaj'akein his statement at Temple Trees on the 28th morning at the instanoeof Mr. Bandaranaike and Mr. S. A. Dissanayake. In making this
suggestion against these two gentlemen, Mr. Ponnambalam put thispassage from that statement to Lionel Senanayake: “He (that isStanley Senanayake) told me that the D. I. G., Range 1, had orderedthe arrest of certain persons, no names were mentioned. Mr. Senanayaketold me that the persons to be arrested included Ministers of State.He said that Mr. C. C. Dissanayake nad told him that Sir John Kotelawelawas a party to this. He also told me that Mr. Dudley Senanayakehad been spoken to and had reluctantly agreed. He also said thatMr. Sydney de Zoyza was said to be a party to this. Also Mr. Roycede Mel was said to be party to this.”
We reject the suggestion of Mr. Kannangara and Mr. Ponnambalamthat Lionel Senanayake was instigated by Mr. Bandaranaike andMr. S. A. Dissanayake to make this statement. He did not strike us'as a person who would agree to commit such a dishonest actas to implicate persons falsely on another’s suggestion.
It is true that it was only in his statements of 16th and 19th Februaryrespectively that Stanley Senanayake mentioned that the 4th defendanthad told him about the 5th and 6th defendants being in the plot, andthis fact was brought out in cross-examination. But it is clear as canbe that Lionel Senanayake mentioned their names on the morning of28th January. It is also true that Stanley Senanayake mentionedin. his first statement made on 28th January that he met the 1st, 2nd,3rd, 5th and 6th defendants on the 27th night when, as he said, he wastaken to 14, Frances Road, Wellawatte. We have not overlookedAir. Ponnambalam’s point that, in spite of mentioning these defendantsin this connection, Stanley Senanayake had not stated that • the 4thdefendant told him on the 26th of the 5th and 6th defendants beingin the plot.
As to whether the 4th defendant ever actually used the words “ tooverthrow the Government ” or even “ change the Government ” whenspeaking to Stanley Senanayake may well be a matter of doubt. Theformer is the expression used by the two brothers in reporting theirfears to Mr. Kularatne, as far as Mr. Kularatne could remember, whileLionel Senanayake thought the word was “ change ” and not“ overthrow ”. But Mr. Ponnambalam, in cross-examining StanleySenanayake, obtained the admission that Stanley Senanayake did notin his statement say that the expression “ overthrow the Government ”was used by the 4th defendant. The passage in the statement whichwas put to the witness by Mr. Ponnambalam was as follows :—“ D. I. G.told me that there was a scheme to arrest the Leftist leaders and theMinisters and he asked me where the Minister© resided. I told himwhere they resided. I asked him ‘ Is the I. G. aware of this or has hebeen informed.’ Mr. Dissanayake said that he would inform the I. G.of this. I was thoroughly shaken when D. I. G. spoke of the schemeto arrest the Leftist leaders and the Ministers. I understood this tomean a plan to overthrow the Government. When I told him ‘ Is I. G.
aware of this or has he been informed ’ it was an attempt on my partto stop the scheme from going further.” It has thus been shown thatit was Stanley Senanayake’s inference, and not the 4th defendant’swords, when the phrase “ overthrow of the Government ” was usedlater. But it is plain that an impression of a grave step involving theGovernment and Ministers was made on the mind of Stanley, whichhe conveyed to Lionel Senanayake, and they both conveyed thisimpression to Kularatne who conveyed it to Abeykoon.
Mr. Kannangara suggested to Lionel Senanayake that he deliberatelyimplicated Sir John Kotelawela and Mr. Dudley Senanayake at theinstance of Mr. Bandaranaike and C. I. D. officers, after Stanley Sena-nayake had agreed to fall into line. There was an implied suggestionthat Stanley Senanayake had also allowed himself to be used as a toolin order that these two persons may be implicated falsely. The passagein his statement which immediately follows was elicited by Crown Counselwith our permission: “ I was aware that I. G. Police would not be aparty to any scheme to arrest the Ministers. To continue, I askedD. I. G. how he proposed to carry out this scheme. He said that therewas a big organisation behind this and Sir John Kotelawela was in itand also Mr. Dudley Senanayake who was reluctantly in it and thatthere w*e even higher people in it. I am asked what I understood by‘ higher people ’. I did not give this much thought at that time.”
Perhaps in order to get over this difficulty created by some of thematters mentioned in the statements of the two brothers, Mr. Kannangarasuggested to Lionel Senanayake that he had met his brother at TempleTrees on the 27th night and compared notes or decided on a commonversion.
On the evidence of Lionel and Stanley Senanayake and Mr. Kularatnewe hold without hesitation (1) that Kularatne was informed by thetwo Senanayakes of a plot to overthrow the Government that night;
he was given the names of Sir John Kotelawela, Mr. Dudley Sena-nayake, the 5th defendant and 6th defendant as parties to the plan,and of the 4th defendant as the informant of Stanley Senanayake;
he was told of the proposed arrest of Ministers and Leftists. Hewas probably given more details but it is not necessary to decide whatthey were. His immediate reaction was to see that his informationreached the Inspector-General of Police, and for this purpose he wentto the Orient Club where he arrived about 4 p.m. The Inspector-Generalof Police arrived there only about 5 p.m., and Kularatne, who hadmeanwhile gone to Sravasti and returned to the Orient Club, spoketo him.
Lionel Senanayake said that he was told by his brother that the Armywas involved in the plot, and that Kularatne was also informed of this.Mr. Bandaranaike said that he was told by Abeykoon that Kularatnehad mentioned the Army as being involved in it. Mr. Abeykoon,however, does not bear out Kularatne or Bandaranaike on that point.
In our view it is not a very significant discrepancy in the versions ofAbeykoon and these other witnesses respectively. Another discrepancypointed out by Mr. Ponnambalam is between the evidence of GeneralWijekoon and Mr. Bandaranaike as to whether the former was told bythe latter that the Army was involved. Mr. Bandaranaike says heinformed General Wijekoon that night that they had the informationagainst the Army and Wijekoon said that he could not believe that.Wijekoon’s evidence is to the contrary, and he was happy that nightbecause the Army had remained loyal.
Kularatne has said that he conveyed all the information he had to theInspector-General of Police. The latter has stated that the informa-tion he received was (1) there was a plot to overthrow the Governmentthat night (2) Ministers were to be arrested (3) the 4th defendant wasone of the prime movers (4) Stanley Senanayake was his informant,though Mrs. Stanley Senanayake had sent for him. The Inspector-General summoned Stanley Senanayake by telephone to the Orient Cluband spoke to him alone. Senanayake told him he could not give anyinformation because he was afraid of reprisals, and when asked whetherany Army personnel were in it the only reply was “ you do not knowyour men.”
– It is _ common ground between ^Abeykoon and Stanley Senanayakethat the latter gave no information when the former questioned him.Senanayake’s explanation is that he thought that Kularatne had apprisedAbeykoon of the position, and he also felt that he might be penalised ifhe directly made a charge against the 4th defendant without evidenceto support it. Whether he told Abeykoon or not that he was going toinform the 4th defendant that he had been questioned by the Inspector-General is a matter of dispute between them, but Senanayake said thathe did go to the 4th defendant. The 4th defendant has said that Sena-nayake came and told him at about 5.30 p.m. that he had been asked bythe Inspector-General what the trouble was going to be in Colombothat night. The 4th defendant’s version is that Senanayake told himthat his brother and Kularatne had caught him unawares, and that afterquestioning him Kularatne went on his own to inform the Inspector-General ; that he had let the 4th defendant down, but at the same timeinformed him that he had told the Inspector-General that the 4thdefendant was doing nothing more than getting ready for the orders heand Senanayake had received from the Inspector-General ;a nd theInspector-General had told Stanley Senanayake that he would get S. A.Dissanayake, D.I.G., C.I.D. to check on that. Stanley Senanayake’sversion is that he did inform the 4th defendant that the Inspector-Generalhad questioned him at the Orient Club about this matter. He explainedthat his idea in informing the 4th defendant was to deter him fromproceeding further. We are aware, from the evidence of what happenedlater that evening, how the 4th defendant reacted to the attempt ofInspector Kandiah of the C.I.D. to meet Stanley Senanayake.
We are satisfied that the Inspector-General did send for the D.I.G.,
I.D., after sending Stanley Senanayake away, and asked him to checkupon the information which Kularatne had given, and contact him atthe Club. It was while he was playing bridge at the Club, waiting forfurther information from the D.I.G., C.I.D., that he got the summonsto go to Mr. Bandaranaike’s residence at about 7.15 p.m.
Mr. Ponnambalam relied on the conduct of the Inspector-Generalas demonstrating that he could not have been told anything about theoverthrow of the Government by Kularatne. If he had, ran the argu-ment, he would not have sent Stanley Senanayake away, he would haveinsisted on Senanayake answering his questions, he would have sent forKularatne and confronted Senanayake with his father-in-law so as toget him to talk ; and the omission to do any or all of these things showedthat the Inspector-General knew of the intention of the 4th defendantto arrest Mr. Bandaranaike if the Opposition leaders were arrested, andwas happy to look on while Mr. Bandaranaike was being arrested.On the other hand, this argument does not explain why the Inspector-General sent for the D.I G., C.I.D., and asked him to check up on theinformation : nor does it meet the evidence of Lionel Senanayake, Kula-ratne aAd Abeykoon who say, and whom we believe on this point, thatthey'were indeed informed of a plot to overthrow the Government andthat the source of that information was Stanley Senanayake.
Certainly the Inspector-General could have done far more than hehimself claims to have done. He might well be described as havingplayed a very inactive part in foiling the plot about which he had beentold. Apart from telling his D.I.G., C.I.D. about it, he did nothing morethan continue to play bridge and wait for more details to be broughtto him : he left the bridge table only when Mr. Bandaranaike orderedhim to leave it. But the explanation is obvious. He was even moreignorant of the ways of preventing or detecting crime than the newestrecruit to the Police Force. He was the Head of that Force, but heknew as little as any other Civil Servant who might have suddenly foundhimself elevated to that position without any previous experience inthat Force. He himself confessed that though he knew a good dealabout the administration of a Government department, he knew nothingof Police work. His inaction alarmed Kularatne, and the latter wasdisturbed that the Inspector-General was playing bridge at 6.30 p.m.instead of going to Temple Trees to inform the Prime Minister.
It was only after the Inspector-General arrived at Mr. Bandaranaike’aresidence at about 7.30 p.m. that he was made to realize the urgencyof the situation. Mr. Bandaranaike has said that he conveyed Mr. Sal-man’s information to the Inspector-General on the latter’s arrival, andthe Inspector-General informed bim that he had received some infor-mation of the same type. The Inspector-General also informed him*that he was awaiting confirmation after verification by the D.I.G., C.I.D.According to the Inspector-General, Mr. Bandaranaike told him of havingreceived information about an overthrow of the Government and thearrest of Ministers. Certainly Mr. Bandaranaike took a- graver viewof the situation than the Inspector-General seems to have done, for hetold the Inspector-General to direct the D.I.G., C.I.D. to proceed to TempleTrees, and the Inspector-General went there himself. It was 8 p.m.,according to Abeykoon, by the time these two Police officers and theSuperintendent of Police, C.I.D. had assembled at Temple Trees ; andMr. Bandaranaike said he also went there at about 8.30 p.m.
Mr. Ponnambalam argued that Mr. Bandaranaike’s information wasonly to the effect that he was to be shot and killed, and nothing hadbeen told him of any danger to the State. We draw no such conclusionfrom the evidence either of Mr. Bandaranaike or the Inspector-Generalof Police. Though Mr. Bandaranaike sent for Inspector Amarasekeraof the Colpetty Police and asked for extra security in respect of his resi-dence, that is not all he did. His conduct in getting the Inspector-Generalof Police and the D.I.G., C.I.D. to go to Temple Trees without delay,and in going there himself, shows that he regarded the information hehad received as something which merited the instant attention of thePrime Minister. We cannot see any undue delay in his going to informthe Prime Minister. If there was any delay which might have beenavoided, it was due to the action of the 4th defendant in gettingVandendriesen to telephone to Mr. Bandaranaike as though he were a."Mr. Walker”. Mr. Bandaranaike waited to receive "Mr. Walker" whosaid he was coming to see him, but who failed to keep the appointment.
Perhaps this is an appropriate stage at which to set out the activitieson 27th January of Mr. Bandaranaike, who was thought by the 3rddefendant and the 4th defendant to be planning to seize power on thatsame night. His evidence as regards his movements that day, and noevidence to contradict it has been placed before us, is that he left Colomboabout 9 a.m. that morning after having worked throughout theprevious night at the Finance Ministry Office. He held a meeting atMalwana and returned home at about 2.30 p.m. He then slept till about
or 7 p.m. and only woke up because his wife told him of Salman’sarrival with some important information.
Mr. Bandaranaike said that when they reached Temple Trees thePrime Minister was told of the information that had been received.The Navy, Army and Air Force Commanders were summoned to TempleTrees. Fifty Naval men were stationed in premises opposite TempleTrees. All the Ministers who were in Colombo were telephoned to andasked to come to Temple Trees. The Inspector General of Police issuedinstructions to all Police stations that Police officers should not carryout any unusual orders without his personal authority, and the PoliceDepot was instructed not to send out auy men ; and he also summonedseveral Police officers who were in Colombo to Temple Trees.
Vmong them was Lionel Senanayake, who was brought by Assistantrerintendent of Police Dickman at about 9.30 p.m. He was .n questioned for a few minutes at a time by the Inspector-General oflice, the D.I.G., C.I.D., the S.P., C.I.D., Mr. Bandaranaike and theme Minister, but his s'atement was ultimately recorded at 5.40 a.m.ile he was being interrogated by Mr. Bandaranaike and others. Mr.nnarobalam asked why he was not interrogated, and why his state-int was not recorded, earlier. Mr. Bandaranaike has explained thatwas because they were too busy thinking of measures to foil the con-iracy -and Lionel Senanayake’s formal questioning could wait: theyre more anxious to question Stanley Senanayake, and an order for hisrest was made by the Prime Minister. This is easy to understand,;ing that he was the source of most of the information they hadreived.
Stanley Senanayake was brought by his father-in-law to Temple Treesme time after midnight while those who had gathered there were atnner. Prom 1.30 a.m. to 4.45 a.m. he was questioned by Mr. Bandara-tike in the presence of the Prime Minister, two other Ministers, theispector-General of Police and the D.I.G., C.I.L., while the tape recorderas -being played. It was suggested to Kularatne by Mr. Kannangaratat on their journey to Temple Trees Kularatne made every endeavouri induce his son-in-law to relate a false story, but that Senanayakesfused to do so. Suggestions of this sort have been made to many of therosecutiou witnesses, no doubt on instructions. We think that Counsellight well have paused at times to consider whether certain suggestionsere not unworthy of the Counsel who made them.
Stanley Senanayake’s condition, on his own version, was a state ofitoxieation. Mr. Bandaranaike, however, thought that though he hadiken liquor he was not drunk ; he was sleepy and tired, but the slownessf his faculties, which existed at the commencement of the questioningwing to the liquor he had drunk, dimini.hed as time went on, after head drunk several cups of coffee. He gave at first a narrative of comp-;tety irrelevant facts and created the impression that he was reluctant toome out with the truth ; he was not forthcoming in his answers, and heldtack a number of things which had to be got out by questioning.
A point sought to be made by Mr. Ponnambalam was that there was nonanual recording of the first statement made by Stanley Senanayakebecause he was not coming out with the story which his interrogatorsvanned. It was submitted that he was receptive to suggestions made bylis questioners, and in support of this his mention, after he had left theinterrogation room, of meeting some of the defendants at 14, FrancesRoad, Wcllawatte, was cited. Much time was spent in eliciting the cir-cumstances under whuh this meeting was mentioned by Stanley Senana-yake. We have considered the charges of fabrication of evidence madeagainst the Police also in this connection, and the allegation that theycoached both Stanley and Lionel Senanayake. We have also rememberedthe contradictions which appea* in the evidence of Stanley Senanayake,
Tyrell Goonetileke and Mr Bandaranaike. We are satisfied that thismeeting was mentioned by Stanley, Senanayake to Goonetileke before thelatter commenced to record his statement, in the presence of Mr. Bandara-naike who was walking through the room at the time. It waslater recorded, in the proper sequence of events, by Goonetileke.
We can appreciate the anxiety of those who were trying to ascertain thefacts quickly from Senanayake, for they had to decide what action shouldbe taken. This, we think, was the reason for dispensing with manualrecording at that stage and for relying solely on the tape recorder. Thesituation in which the authorities at Temple Trees found themselveswas without precedent. Mr. Bandaranaike said that from +he time hearrived at Temple Trees until midnight they were mainly taking measuresto ensure the safety of the State rather than to investigate the allegedoffence. A decision was taken at about midnight that the Cabinetshould have overall direction and control of the entire investigation,while he was to carry on the interrogation on behalf of the Ministers,some of whom attended at the interrogation of witnesses. Investigationswent on almost continuously till February 2nd. Although the Policealso played a par', it is apparent that Mr. Bandaranaike largely controlledthe course of the inquiries. There was no legal basis for much that wasdone, including the arrest of the 4th defendant and Johnpulle that night.But in times of extreme emergency “ the State may be compelled bynecessity to disregard for a time the^ordinary safeguards of liberty indefence of liberty itself, and to substitute for the careful and deliberateprocedure of the law a machinery more drastic and speedy in order to copewith the urgent danger.” Provincial Administration v. Honiball *.
Apart from Kularatne and Salman, there is what Mr. Ponnambalamtermed “ the third channel ” by which information reached the higherauthorities, namely, Assistant Superintendent of Police (Transport)
S. S. Jayatileke.
Jayatileke said that in accordance with a request made three or fourdays earlier, he saw the 4th defendant in the latter’s office on themorning of 27th January. The 4th defendant then asked him for aboutfifteen vehicles to arrest Communists on the 27th night; he also toldJayatileke that he would personally call for the vehicles that night. Itwas put to Jayatileke in cross-examination that he went to the 4thdefendant of his own accord because his D.I.G. Wambeek had notgranted him leave, and that Stanley Senanayake had ordered the trans-port earlier and he only informed the 4th defendant of that. He deniedthese suggestions, and he has contradicted the 4th defendant’s evidenceon these matters.
Jayatileke i? supported by Inspector Wickramasinghe of the CentralGarage, who has said in evidence that Jayatileke told him at about 12.30p.m. that day to have as many vehicles as possible ready as they would berequired by the 4th defendant that night. Wickremasinghe accordinglyordered the drivers to have their tanks filled and to stand by.
l(l942) A. D 1 at p. 14.
Jayatileke said that he also telephoned S. A. Dissanayake, D.I.G., C.I.D.,about the same time and told him of the 4th defendant’s requirementsregarding transport and the orders he had received from the 4thdefendant, as he thought that the C.I.D. may also require transport.
Jayatileke has spoken of two conversations which he said he personallyhad with S. A. Dissanayake at about 1.30 p.m. and about 7 p.m. respect-ively. He has admitted that no mention was made by him of theseconversations when he made his first statement on February 7th, butthese conversations were not a material part of the operation which hethen disclosed. Although Jayatileke paid that at about 7.00 p.m. hecountermanded the order he had given Inspector Wickremasinghe, thelatter has contradicted him on this point.
Jayatileke made a second statement on 19th April 1962 (1D2) in whichhe referred to a telephone conversation with S. A. Dissanayake at 6.30p.m., but Mr. Ponnambalam has pointed out that this time was originallytyped in the statement- as “ 10.30 p.m. ” and altered in ink to “ 6.30 p.m.”There are other alterations in this statement and the handwriting inwhich those alterations have been made has been identified as that of-Mr. S. A. Dissanayake.
After giving the defence the full benefit of these alterationsand omissions1 there still remains the outstanding fact, which we hold tohave been established, that the 4th defendant told Jayatileke that hewanted Police vehicles that night in order to arrest Communists, and weare satisfied that Jayatileke conveyed this to S. A. Dissanayake earlythat afternoon.
It is more than likely that when S. A. Dissanayake on being told byAbeykoon that evening at the Orient Club about the information hehad received from Kularatne, informed Abeykoon that he had similarinformation, he was referring to the information he had received fromJayatileke.
The prosecution did not claim that Jayatileke was an informantin the sense that Stanley Senanayake was. But it is undeniable thatJayatileke became aware of a step which the 4th defendant intendedtaking on the night in question, and conveyed what he had learnt toS. A. Dissanayake. In that view, Jayatileke was an informant whoseonly knowledge was derived from what he claims to have been told himby the 4th defendant on the morning of the 27th January.
The question whether a witness was an accomplice of a person chargedwith an offence has generally to be decided upon the assumption thatthe offence was actually committed. Such an assumption may ultimatelyon consideration of all the evidence turn out to be incorrect.Mr. Ponnambalam invited us to regard Major Rajapakse as an accomplicein the very special sense that he was aware of and participated in what
was a lawful plan to prevent the establishment of a dictatorship byMr. Bandaranaike. We shall consider here the question whether MajorBajapakse was a willing associate with the defendants in whateverplan they were preparing, whether or not it was illegal.
We have here to repeat briefly Rajapakse’s own version of someevents relevant to this question. The 3rd defendant spoke to him onthe night of the 26th January of a plan to overthrow the Government,and asked him whether he would join in the plan, and he agreed on condi-tion that its details would be revealed to him. His professed object inadopting this attitude was to ascertain as much as possible about theplan in order that it may be foiled. The 3rd defendant arranged foranother meeting during the afternoon of the 27th, but the arrangement wascancelled by means of a telephone call from the 9th defendant. Subse-quently R japakse attended the two gatherings of Army officers atElibank Road and later at Kinross Avenue. At the latter place hebecame aware of the manner in which the 2nd and 3rd defendantsproposed to effect their object, and of the signal for carrying out theoperation. He himself was given an order to send armoured vehiclesto Queen’s House and to organise a road block of armoured vehiclesat the Kirillapone entry into the city of Colombo, the purpose of theroad block being in his opinion to prevent interference from troopsthen stationed at Panagoda. According to Major Rajapakse, he wasfully aware of the illegality of the orders given to himself and to other"officers, but he pretended to accept the orders'vwith of course no intentionof carrying them out.
Rajapakse states that, on his return to Rock House camp with MajorJoseph the 14th defendant, he decided upon a co'inter-plan which heintended to put into effect if and when he received a signal that theoperation was “ on ”. . In order to have Joseph out of the way, he sentJoseph upon a visit to the men of his unit working in the Harbour.His alleged plan to foil that of the conspirators was to send armouredvehicles to Queen’s House and to Temple Trees to prevent entry by whatone might term “ Rebel forces ”, and to deploy armoured vehicles atimportant points especially with a view to prevent utilisation by theconspirators of Army Units stationed at Echelon Square.
To put the matter simply, Major Rajapakse wanted us to believethat he expected single-handed and at very short notice to be able tofoil the plans of the conspirators by the deployment against them ofthe sources of the Armoured Corps. We must note in this connectionthat in fact a strong detachment of the Armoured Corps was on thisnight engaged in unloading cargo at the Port of Colombo.
Although it was routine practice that the whereabouts of the Com-mander of that Regiment at any time were alwaysknown at Regimentaland Army Headquarters, he m ide no attempt to contact ColonelAttygalle or any other high-ranking officer, nor did he warn even oneof his own officers to be prepared for emergency action. His explanationfor the omission to inform Colonel Attygalle, or directly or indirectly
General Wijekoon, of the plans which the 2nd and 3rd defendantsproposed to carry out in the early hours of January 28 th was in ouropinion entirely unsatisfactory. To lay minds, his expectation that theconspiracy could be foiled by his alleged counter-plan was extremelyoptimistic.
Now, if Major Rajapakse’s attitude to the allogod conspiracy wasthat of a spy, it is difficult to understand why he failed at this stage togive any hint of the knowledge which he possessed both as to the identityof some of the conspirators and of the plans they had in mind. If hehad indeed been a spy who had pretended to participate in the conspiracyonly in order to obtain information which would help to foil the plansand to reveal the identity of the conspirators, the time for action andfor revelation had surely arrived when Rajapakse was sitting at his deskbetween 11 p.m, and midnight on the 27th. Rajapakse could at thetime have no expectation of being able to gather any further informationconcerning the alleged plan, for on his own version the only further stephe could anticipate was the issue of the “ on ” signal to carry out ordersalready given. Except therefore in the possible evont that the wholeoperation may be cancelled, Rajapakse already possessed all suchinformation concerning the conspiracy as could possibly come to hisknowledge. Nevertheless this professed spy kept tho informationsecurely locked up in his breast: in the face of a conspiracy which involvedthe Commanders of several Army Units then stationod in Colombo,he failed to enlist any military aid to oppose the conspirators. Accordingto him, he did not even intend to invoke any effective aid if ho receivedthe “ on ” signal, save for some nebulous idea of making contacts withunits at Panagoda. He could produce no note in proof of his claimthat he proposed to foil the conspiracy by means of a countor-plan.
Shortly after 11.30 p.m. Colonel Attygalle phoned Rajapakso to conveyan order that the Army Commander wanted three extra men sont to TempleTrees, and he phoned again about midnight with an order for Rajapakseto come to Temple Trees with three armoured cars and three officers.Very shortly after that the 3rd defendant is alleged to have phoned andstated “ Hold Fast Off ”. The vehicles and Rajapakso arrived at TempleTrees about forty or forty-five minutes after midnight, but not beforeColonel Attygalle had twice impatiently called Rock llouso Camp toinquire about the delay.
At Temple Trees Major Rajapakse was briefed to effect tho arrests ofthe 4th defendant and Assistant Superintendent of Polico Johnpulleand either to arrest or to bring to Temple Trees Mr. Stanley Sonanayake.At this time he met both Colonel Attygalle and General Wijekoon. Bymere chance as it were, because of a decision to arrest tho 4th defendant,Rajapakse was present at Temple Trees when measuros wero being takenwith the obvious object of foiling the alleged conspiracy and of tracingthe conspirators. This was his second important opportunity both to
assist the authorities in their object and to win credit for himself as anefficient spy. But again he failed to reveal the important informationwhich he possessed.
In the statement of Rajapakse recorded at Temple Trees on the nightof 29th January he gave five reasons why he did not make a prompt revela-tion on his arrival at Temple Trees, and we shall deal lastly with the firstof these. One was that he had some thought of keeping in further touchwith the conspirators in order to become aware of any further plans. Inother words, even though the existence of the conspiracy had already beenrevealed to the authorities, he proposed without their knowledge to dosome further spying for their benefit. This seems to us to be an absurdreason for the failure to assist the authorities immediately with vitalinformation. There would have been no difficulty in disclosing thatinformation at Temple Trees and yet being in a position to gather furtherinformation. Then he said that there was no urgency to make any dis-closures because the 3rd defendant had already informed him that“ Hold Fast ” was off. We think that Mr. Bandaranaike would have beenamazed if Major Rajapakse had at 1 a.m. on the 28th said to him “ Sir,I have vital information of names and plans, but I shall tell you aboutthem in a day or two since it is not urgent.” His next excuse that henever had a proper opportunity of conveying his information to ColonelAttygalle at Temple Trees does not bear examination, and does not requirea statement of our reasons for its rejection. __
There is some validity only in the first of the excuses put forward byRajapakse, namely that in a conversation with Mr. Bandaranaike thelatter remarked that he took a poor view of the conduct of Mr. Arndtwho had only disclosed his participation after the Government hadgathered information from other sources. But even this excuse forsilence shows only that Rajapakse’s solicitude for his own skin completelyovershadowed his pix/fesseu ioyaity co the Government and his professedpurpose of acting as a self-appointed informer ; if he was so easily deflectedfrom the path of rectitude, it is difficult to believe that he had indeedto tread that path. On his own admissions, he deliberately refrainedfrom making any revelation between 10.30 and 11.30 p.m. on the 27th,and that for no valid reason. In our opinion, his failure to make anydisclosure a few hours later at Temple Trees was equally deliberate andequally inexcusable.
The circumstances in which Major Rajapakse ultimately did make astatement are relevant to the matter under discussion. He met ColonelAttygalle after noon on Sunday the 28th and had lunch with him. Againhe met his Colonel at about 10 p.m. that night and was with him for somehours after midnight of the 28th. According to him he made some fainteffort to tell Attygalle what he knew but there was no suitable opportunityfor a disclosure, partly because other officers were also about the place.Here again we do not think the excuse for non-disclosure is at all credible.
We accept the evidence of Colonel Attygalle that on the morning ofSunday the 28th Rajapakse reported to him a remark alleged to have beenmade that morning by Capt. Jayakody the 10th defendant about a moveto “ spring ” the two Police officers then in custody at Welikada. Herethen was an occasion when in fact Rajapakse did disclose a matter con-cerning the alleged conspiracy which must at the time have seemed tohim quite important. It was surely a suitable opportunity for him tomention to Attygalle the much more incriminating and importantknowledge concerning the 3rd defendant’s talk on the Friday of a mili-tary dictatorship and the 3rd defendant’s orders on Saturday night inpreparation for a Coup d’otat.
In our opinion Rajapakse’s ultimate guarded disclosure to ColonelAttygalle on the morning of the 28th January was prompted purely byself-interest. Major Joseph of his own Regiment had been questionedon the afternoon of the 28th at Army Headquarters, and Rajapaksesays that he became aware through Colonel Attygalle that Major Josephwhen questioned had tried to protect himself from implication by statingthat he had spent much of his time on the 27th in Rajapakse’s company.Rajapakse surely must then have realised that he himself was in immi-nent peril. Had Joseph by some chance admitted his own presenceand .that of Rajapakse at Kinross Avenue, then surely Rajapakse wouldimmediately have been summoned for questioning. Considering thatsuspicion had apparently arisen concerning Joseph, his next in command,the probability that similar suspicion would arise concerning himselfmust have been quite apparent to Rajapakse. If his association withthe 3rd Defendant had been disclosed to the authorities by anyoneother than himself, he would certainly have been regarded as a conspirator.In our opinion, the circumstances point strongly to the probability thatthis was why Rajapakse decided that it would be dangerous for him tokeep silent any longer.
The statement which Rajapakse did make on 29th January containsintrinsic confirmation of our opinion that it was fear and the need forself-preservation which moved him to disclose his knowledge. Thestatement commences with a lengthy narrative concerning past eventsunconnected with the events of the 26th and 27th, concerning Rajapakse’spast fear and suspicions of Catholic Action, and tending to impress hislisteners that he himself was a devout Buddhist, loyal to the adminis-tration. It also mentions the names of important officials who, accordingto the tenour of the narrative, might be expected to certify to his ownloyalty. All this was quite unnecessary, unless what was uppermostin Rajapakse’s mind was the urgent need to ward off suspicion againsthimself. We doubt whether he would have made any disclosure if hecould have remained silent without grave risk to himself.
In view of the matters we have discussed above we do not find it neces-sary to consider in this context the pros and cons of Rajapakse’s claimthat he would not have been suspected because he was known to be a
fervent Buddhist, always suspicious of Catholic Action on the part ofArmy personnel, and because he had a reputation in the Army for intenseloyalty to his Religion and to the Government of the time. This claimis at the least inconsistent with some evidence (which we prefer not tomention) indicating that Rajapakse found quite congenial the companyof Joseph, a Catholic officer whom he professes to have distrusted.Even if there be any merit in this claim which he has made, Rajapakse’sfailure to make any disclosure prior to 29th January despite the numerousopportunities he had and should have taken, compel us to the conclusionthat at the least it would be unsafe, and unfair to the defence, to treathim as being innocent of willing participation in the 3rd defendant’splans. We shall therefore treat his evidence as that of an accomplicein any such plan as may have been contemplated by the 3rd defendant
We have now to consider whether Stanley Senanayake should beregarded as an accomplice.
According to his own version of events, Senanayake was informed bythe 4th defendant on Friday 26th January of the alleged plan to arrestMinisters and others and to overthrow the Government. He carriedout the order of the 4th defendant to summon a conference of gazettedofficers at his office for 6 p.m. on the 27th, having every reason to suspectthat the conference would be a step in furtherance of the plan. Hespent the evening of the 27th in the company of persons alleged to beconspirators,, making no attempt, to remove himself from that company.When sent for and questioned by the Inspector-General of Police at theOrient Club that evening, he declined to disclose information. On hisown evidence he was a confidant of the 4th defendant; so that despitehis denials, it was highly probable that he was assigned an importantpart in the alleged plan. It was clear that Senanayake did all he couldto avoid C.I.D. officers after he heard on the 27th evening that they werein search of him. He also avoided going to his own home.
The circumstances mentioned above can well lead to the suspicion orthe inference that Stanley Senanayake was indeed a guilty associate ofthe 4th defendant in the conspiracy to which he spoke. But there ismuch evidence tending to show that despite his knowledge of the allegedplans he was not a willing participant.
Stanley Senanayake repeatedly maintained at the trial and in the state-ments made earlier that he was from the outset anxious that the Inspector-General should know of what was supposed to be afoot. He was worriedconsiderably by the knowledge which he possessed, and he was uncertainas to what should be his proper course of action. It is inherently probablethat Senanayake was thus worried ; that was only natural if he was toldof a plan, either to overthrow the Government or else to arrestMr. Bandaranaike and Mr. N. Q. Dias. Tn this situation he decided toconsult his brother, Lionel Senanayake, who though junior in rank wasa police officer of longer standing and the elder of the two brothers.Despite the very strenuous efforts of the defence to persuade us to the
contrary, we are satisfied that Stanley Senanayake did in fact go to hisbrother’s house at Mount Lavinia in the night of the 26th and theredisclose to his brother some knowledge in hie possession. That such adisclosure was made is inherently probable, at the least for the reasonthat, whether or not Stanley Senanayake was an accomplice, eitheranxiety or temptation prompted him to impart important and excitinginformation to his brother, himself a police officer.
Lionel Senanayake was the Headquarters Assistant Superintendentof Police of the Western Province (Central) Division and resided in MountLavinia. His evidence was that he spent the evening of the 261 h Januarywith his wife at a Nadagama held in Homagama. On the return journeyhe visited the Homagama Police Station which was within his division.This visit at 9.15 p.m. was recorded in the Officers’ Visiting Book (P34)of the Homagama Station. On his return home rather late, he found hisbrother Stanley and the latter’s wife in his house. Stanley then toldhim of the 4th defendant’s talk that day: of a plan to arrest Ministers,Leftists and others, and the 5th and 6th defendants were involved.Stanley was worried and in doubt as to what he should do, and thebrothers discussed ways of conveying the information to the Inspector-General. Lionel was due to attend a conference of Officers of his divisionsummoned' by the 4th defendant for the morning of the 27th, and itwas1 thought that further light might be shed on that occasion on thematters which the 4th defendant had mentioned. He therefore suggestedthat he would meet Stanley again after that conference for a furtherdiscussion. The brothers also dec'ded that Mr. Kularatne would be asuitable intervenient to approach the Inspector General.
The truth of Lionel Senanayake’s testimony concerning a disclosure saidto have been made to him on the night of the 26th is strongly confirmedby his own subsequent conduct. He stated that, as arranged, he wentto his brother’s house on the afternoon of the 27th. (Kuiaratne on Lisarrival at the house a while later, found him there.) He informed Stanleyof orders for arrest of Leftists given by the 4th defendant that morningat the conference of Western Province (Central) officers, and of the orderto guard the house of Colonel Udugama. We refer elsewhere to theseorders and to the suspicions created by the proposal to guard the houseof Colonel Udugama. It suffices at this stage to point to the inherelitprobab:lity that Lionel Senanayake would have mentioned to Stanleyand to Kularatne an order which had earlier roused suspicion and dis-cussion. The 4th defendant admitted in evidence that he did in factgive these orders to Western Province (Central) officers.
Lionel Senanayake was summoned to Temple Trees on the night ofthe 27th for one of two reasons, or for both; because Kularatne hadinformed the Inspector-General of his presence at Stanley’s house in theafternoon or because he was Stanley’s brother. According to Lionel,he did immediately mention in conversation at Temple Trees Stanley’sdisclosure the previous night that the 4th defendant had spoken of a
plan to arrest Ministers. Even if we were not to believe him as to whathe said at that stage, there is his statement recorded at 5.45 a.m. on 28thJanuary in which he quite clearly imputes to his brother Stanley know-ledge of a plan to arrest Ministers, in which the 5th and 6th defendantswere involved. It is inconceivable that Lionel would have so com-promised his brother unless in fact Stanley had made a previous dis-closure to him. It was quite unreasonable for Lionel to make a statementso damaging to Stanley unless he could make it with the confidencethat Stanley himself would not, in his own statement, have denied hisknowledge of a conspiracy. That confidence Lionel could not havefelt, unless Stanley had indicated earlier that he was not a willingparty to the alleged plan and that he was anxious that the Inspector-General at least should be informed of it.
In the course of cross-examination, Lionel Senanayake said that he hadmentioned various matters in the statement he made at Temple Treesat dawn of 28th January. Among these matters were that his brotherhad told him that persons to be arrested included Ministers of State ;that he had connected some orders given at the Western Province(Central) conference with the story that his brother had related theprevious day ; that he had “ incriminated ” Mr. Dudley Senanayake,Sir John Kotalawela and the 5th and 6th defendants ; that the wholestory was told to Kularatne on the 27th afternoon. The defence didnot seek to contradict him as £tT the fact that these matters were men-tioned in the statement. The fact that he did mention these matters,and not the truth of what he mentioned, is important in the presentdiscussion.
The defence sought to suggest a different explanation for the signi-ficant fact that Lionel Senanayake*s statement at Temple Trees attributedto his brother knowledge of the alleged plan, namely the explanation thatwhile he was at Temple Trees Lionel was somehow made aware thathis brother had already disclosed details of a plan, and was therebyinduced to make a statement in line with that of his brother. Butthere is no evidence to support this suggestion. Stanley Senanayake wasbrought to Temple Trees between 12.30 and 1 a.m. on the 28th, andthereafter he was under continuous questioning until 4.50 a.m. ; themanual recording of his statement commenced immediately after andcontinued until 7.55 a.m. The manual record was made by AssistantSuperintendent of Police Tyrell Goonetileke against whom in particularthe defence made numerous allegations of misconduct in connectionwith the investigation. This officer certainly had no opportunity toconverse with Lionel after the close of the oral examination of Stanley.There were present at Temple Trees several officers as to whose honestythe defence were not in doubt, but none of these could support by testi-mony the suggestion that some person, who had been present duringthe interrogation of Stanley Senanayake, had engaged in conversationwith Lionel Senanayake prior to 5.45 a.m. at which time he commenced tomake his recorded statement.
During Mr. Ponnambalam’s closing address many laborious hourswere devoted to his attempt to persuade us that the brothers Senanayakewere induced during the early hours of the morning of 28th Januaryto make false statements implicating the 4th defendant in particular,and through him others, in an imagined conspiracy. So far as StanleySenanayake was concerned, such inducements could not have takenplace during his interrogation; considering that there were presentamong others the Prime Minister, the Minister of Justice and the Ministerof Lands, it seems to us quite incredible that he could have been inducedat that stage to make completely false statements concerning a fictitiousplot to overthrow the Government. The theory that Lionel Senanayakehad about the same time been induced to attribute to his brotherincriminatory knowledge of such a plot is equally far-fetched. Anysuch inducements could, in the defence submission, have been madeby Mr. Bandaranaike himself, or on his behalf by the D. I. G-, C. X. D., orthe Superintendent of Police Attygalle. Upon the evidence therewas neither time nor opportunity for these persons to consult togetheradequately, and then to conceive and put into effect successfully, ascheme to procure fabricated statements from the two brothers. The.suggested motive for this fabrication was the allegation that Mr. Bandara-naike himself had planned to establish a dictatorship, and that it wasnecessary to conceal evidence which might show a purpose on thepart of the 4th defendant and others to counter that plan. Ourreasons for rejecting that allegation are stated elsewhere in this order,and since (as we hold) that allegation was quite ill-founded, it followsthat those who conducted the investigation at Temple Trees on themorning of the 28th January were concerned in the ascertainment offacts, and not in the invention of falsehoods which would protectMr. Bandaranaike.
V e are satisfied that Lionel Senanayake truthfully repeated at TempleTrees information which Stanley gave him on the night of the 26 th.The fact that Stanley did reveal that information to his brother goesfar to show that he was not in active support of the 4th defendant’splans, or at the least that the question whether the Inspector-Generalknew of them was worrying him.^
The position that Stanley Senanayake was not a guilty associate issupported by the evidence concerning the intervention of Mr. P. de S.Kularatne. We do not, on this matter, act upon Stanley Senanayake’sevidence, which was to the effect that the decision to summon Kularatnewas his own decision. What is clear is that Kularatne was summonedby a telephone call to Ambalangoda put through by Kularatne’s daughter(the wife of Stanley Senanayake) on the morning of the 27th, and arrivedat the Senanayake house about 3 o’clock that afternoon. The openingremark attributed to him when he came upstairs “This is absolutenonsense ” indicates that his daughter had already given him someinformation downstairs. But Kularatne’s subsequent conduct leavesno doubt in our minds that Stanley Senanayake did make to him a
disclosure of a plan affecting the Government. We accept the evidencethat Kularatne directed Stanley to phone the 4th defendant and inquirewhether the Inspector-General of Police had been informed of the plans,and that Kularatne decided to convey information to the Inspector-General in consequence of his conversation with Stanley Senanayakeand Lionel Senanayake.
Kularatne’s conduct shows that the knowledge he possessed was ofgrave import. He awaited the Inspector-General’s arrival at the OrientClub, and told him what he knew, and in consequence the Inspector-General sent first for Stanley Senanayake and later for theD. I. G., C-1. D.The Inspector-General apparently had his own reasons for continuingto be at the club. But Kularatne himself, not satisfied with the stepsthe Inspector-General appeared to be taking, tried to contact influentialGovernment Party Members. Ultimately he did go to Temple Treeswith Senator Somaratne, and there undertook to fetch his son-in-lawto Temple Trees.
Evidence elicited by the defence satisfies us that Stanley Senanayakewas an officer who was honourable and loyal to his Service, his colleaguesand his friends. These qualities help much to explain conduct on hispart which might, otherwise have aroused suspicion. Kularatne,Lionel Senanayake, and officers who met him on the 27th all testify tohis worried state of mind on that day, a condition which must reasonablybe attributed to the dilemma in which he was placed, when he had tochoose between two distasteful alternatives : whether to be silent andthus appear disloyal to the Government, or to speak and thus be disloyalto the 4th defendant who was his superior officer and apparently hi3trusting friend. Considerations of honour apart, the possible conse-quences, whether of silence or else of revelation, were in each case grave.We can well understand why it was that in such circumstances he madea reluctant disclosure to Kularatne, but thereafter declined to furnishfurther information to the Inspector-General.
Much criticism was directed at Senanayake on the ground that hisfirst statement did not disclose all the knowledge of a conspiracy whichhe claims to have had, and that in subsequent statements he kept on“ adding ” details as to the alleged plans and persons involved in themBut many explanations are available for such conduot. We are satisfiedthat in his first statement he made a general disclosure as to the conspiracy,but could not in the very trying circumstances recollect the numerousmatters of detail which he mentioned later. Considerations of loyaltyand even fears for himself can well account for his omission at that stageto reveal everything which he claims to have then known. Althoughhe was cross-examined with severity and even some measure of contempt,he did not respond with any appearance of malice against the defendantsOn the contrary, he impressed us as a witness who did not relish the roleof testifying against brother officers.
4—K 7431 (7/65)
We are satisfied that, if in fact there was a conspiracy to overthrowthe Government, Senanayake was not a willing participant in thatconspiracy.
Mr. Kannangara drew our notice to matters in regard to which in hissubmission Stanley Senanayake gave false evidence at the Trial:—
In regard to the order which Senanayake gave on January 16thfor the collection of notes and addresses of persons likely to incitestrikes, it was argued that Senanayake falsely denied that he had seenthe file (19D 64) which contained the collected particulars. Consider-ing that he freely admitted giving these orders and approving thechoice of constables for this task, we cannot agree that his denial ofseeing the file was false. The particulars in question had to be avail-able for use in certain eventualities ; but there was no need for Sena-nayake to study the file of particulars in advance. If in fact hehad actually looked at the file, we should have expected his initialsto have appeared on it.
It was argued that Senanayake tried to show that the 4thdefendant had ordered the testing of the telephone system on the23rd or 24th January, whereas in fact the order was given earlier.Even if his evidence as to the date of this order was incorrect, we
' cannot accept that it was false. What was important was his trueevidence as to this testing and not the precise date of the order.
We agree that Senanayake’s evidence on some matters wasprobably false ; his claim that the decision to send for Mr. Kularatnewas made by him and his brother on the 26 th night, and not by hiswife ; his attempt in his letter of 14th February to change the purportof his answers to the Inspector-General at the Orient Club on the 27thJanuary ; his denial that the telephone receivers at his office weretaken off their cradles because he was anxious to avoid the C. I. D. ;his denial that tho 27th afternoon he did not accede to John]mile’ssuggestion to go together to see the Inspector-General. But theseare not points in his evidence which injure or incriminate any of thedefendants. We have stated earlier our opinion that Senanayakewas reluctant on 27th January to disclose his knowledge of the allegedconspiracy, although he was anxious that the Inspector-Generalshould be warned to make inquiries. It is not strange that he madean attempt at the trial to conceal that reluctance, which of coursewas reprehensible particularly in the case of a senior police officer.But we are satisfied on a consideration of all relevant evidence in thecase that he was a witness of truth.
The prosecution moved to lead in evidence the statements made inFebruary 1962 by the 10th defendant to the Police, and by 18th, 19th,20th and 21st defendants at the interrogation at Temple Trees. Thestatements in question were —
The 10th defendant’s statement made on 28th February to thePolice,
portions of the 18th defendant’s statement made on 19thFebruary,
the whole of the 19th defendant’s statement made on 20thFebruary,
portions of the 20th defendant’s statement made on 20thFebruary, and
portions of the 21st defendant’s statement made on the 19thFebruary.
Considerable evidence was led by the parties after the defence hadobjected to the production of these statements. We eventually ruledthat the 10th defendant’s statement to the Police and portions of the. 18th defendant’s statement made at Temple Trees may be led in evidence,and upheld the objection of the defence to the 19th, 20th and 21stdefendants’ statements being produced.
Much of the evidence led by the defence on this aspect of the caserelated to the conditions under which they were confined, first in WelikadePrison, and from the night of 15th February in the Magazine Prison.Mr. Jordan, the Assistant Superintendent of Prisons, whose evidencewe accept, spoke to the following matters. The defendants were notallowed to see any visitors till the 27th of February. They were heldincommunicado. They were not allowed any letters or newspapers.They were allowed to see their lawyers only from May 1962. Theywere kept in their cells for over 22 out of every 24 hours. They weretaken out of their cells only to have their baths or to go to the lavatoryor for exercise, and such exercise was only permitted for 15 to 30 minutesat a time, twice a day. No religious ministration was permitted until18th March, and then too the defendants were kept in their cells whilethe religious service was conducted by a priest in the corridor. Thecells were obviously teeming with bugs and many complaints weremade about this, and also that the sleep of the defendants was disturbedby the rattling of chains on doors and by militarj' guards walking aboutin heavy boots. There can be no doubt that, in effect, the defendantswere subjected to solitary confinement for about a month until they wereallowed to see visitors. Some of the restrictions imposed on them weredisgraceful. We do not doubt that there was need for strict security,but it seems to us that the totality of the conditions might justly betermed cruel and shameful. The only redeeming feature of that dis-graceful episode is that the Crown lawyers did not seek to justify whatwas done.
On the 19th and 20th of February, the 18th, 19th, 20th and 21stdefendants were taken to Temple Trees for questioning and they allmade statements there. The 18th defendant, who was acquitted at theclose of the prosecution, made a statement which the Attorney-Generalinformed us was not a confession. In view of that fact, his statementhad to be judged differently from the statements of the other defendants,
for the rule contained in section 24 of the Evidence Ordinance regardingconfessions would not appty to admissions. We therefore permittedthe portions of his statement which the Crown sought to produce to beled in evidence. Those portions were marked P156 and P156A. The18th defendant’s Counsel was permitted to produce certain other passagesin the statement which were explanatory of the portions marked bythe prosecution. Those passages have been marked 18D2, 18D3, 18D4and 18D5A to 18D5C. The reasons for the acquittal of the 18thdefendant at the close of the prosecution case appear elsewhere in thisjud <£tnent.
The 19th defendant was roused from his sleep on the 19th night.Ho had been given a sleeping pill, because he had abscesses which werepainful and he had complained of not being able to sleep for 3 or 4 days.He told us that he was not well even when he went to Temple Trees, butbe was taken into the interrogation room and questioned from 1.40 a.mto 4 a.m. The 19th defendant’s complaint is that he was told byMr. Bandaranaike that he was bound to answer questions, and he was alsotold of the new Bill which provided for confiscation of property andsevere penalties, and he became scared as a result. At a certain stagehe says he got a complete black-out from which he recovered, and' Mr. Bandaranaike then told him : “ You had better talk now beforeit is too late.”*
Mr. Bandaranaike admitted that the 19th defendant was “ in prettypoor shape with his face swollen, a black eye, and pimples or boils ; hecomplained that he was ill.” He denied that he mentioned the Billwhich provided for confiscation of property, a Bill which had been tabledon the 16tli of February—only 3 days earlier—but Mr. Bandaranaikeadmitted that the Ministers who were present at the questioning werefull of the Bill and may have mentioned it because they were very interes-ted in it. The 19th defendant also said that when he was previouslyquestioned on the 2nd of February by Mr. Bandaranaike, the latter toldhim that he was not worried about junior officers who merely carried outorders. Mr. Bandaranaike admitted that he did say such a thing tothose whom he questioned on the 19th and 20th February. In hiswords “ I must have told them that I was not really concerned in dealingwith people who carried out orders”, and again, “ I did in fact indicatepractically to all the men I questioned that I was not concerned withtrying to find fault with or blame any officer who believed he had lawfulorders for proceeding to execute them, but with those who had theknowledge that they were engaged upon an unlawful enterprise.”
We have thus had from Mr. Bandaranaike himself two admissionswith regard to certain remarks made, either bjr himself or by the Ministerspresent, to the defendants, which to our minds could be either an induce-ment, or a threat or a promise, having reference to the charge againstthe accused persons, proceeding from persons in authority, and whichwere sufficient in our opinion to give the defendants grounds for believing
that by making a confession they would gain an advantage or avoidan evil in reference to the proceedings against them. What other effectcould the mention of a Bill which provided for enhanced penaltiesfor the offences of which these men were suspected have had ontheir minds, having regard tc the conditions under which they were keptunder detention and the circumstances under which they were broughtto Temple Trees for questioning ? The defendants may well havefelt, on the mention of a Bill of this nature, that it would be better forthem to confess and obtain some advantage thereby. It is difficult toexplain why the Bill was mentioned at all if the purpose was not to getthe defendants to talk. We think it extremely probable that thedefendants were in fear for their safety, if not for their lives, whenthey were taken to Temple Trees : any remarks made to them at thequestioning should have been carefully weighed for the effect they mightproduce on their minds.
The 20th defendant, who was questioned from 4.45 a.m. to 5.55 a.m.,said that Mr. Bandaranaike told him about the amendments to the lawand the penalties of death and confiscation of property that were beingintroduced. It may be that the 20th defendant was mistaken in thinkingthat it was Mr. Bandaranaike who mentioned these matters, when it wasin fact one or more of the Ministers.
In the case of the 18th, I9th, 20th, and 21st defendants we hold thatnot only was the Bill mentioned to them in the course of their questioning,and that such mention could have constituted a threat, but we are alsosatisfied that Mr. Bandaranaike’s statement to them, that he was notconcerned with finding fault or blaming any officer who believed he hadlawful orders for proceeding to execute them, could have operated asan inducement to them to make confessions. They might well haveunderstood such a statement to have been an undertaking givenby Mr. Bandaranaike, that no action would be taken against officers whothought the}’’ were justified in acting upon the orders they received.
The 21st defendant’s case as to why he made a confession between
p.m. and 8.15 p.m. on the 19th February was mainly that he hadbeen induced by Mr. Tyrell Gunatilleke, who he said, spoke to him forabout an hour in a room in Temple Trees before he went into the inter-rogation room and taught him what he was to say. The 21st defendantsaid that he succumbed to Mr. Gunatilleke’s pressure and gaveMr. Bandaranaike the answers that he thought were required. All this hedid because he wanted to get out of the inhuman conditions under whichhe was being detained. As against the 21st defendant’s evidence, thereis the evidence of Mr. Gunatilleke and Mr. Abeygoonewardena. Theirevidence satisfied us that Mr. Gunatilleke did not spend any time atall alone with the 21st defendant, and there was no opportunity forMr. Gunatilleke to speak to him alone. The 21st defendant also triedto make out that when he left the interrogation room for a short timeand went into another room, Mr. Gunatilleke followed him there andspoke to him alone. . We reject the 2lst defendant’s evidence on thispoint, and we prefer to believe Mr. Gunatilleke, Inspector Fareed ansMr. Abevgoonawardena, all of whom make it clear that Mr. Gunatillekedid not leave the interrogation room during the period that the 21stdefendant was absent from it.
In arriving at our conclusion in regard to the 19th, 20th and 21stdefendants, we have not overlooked the provisions of section 12 of theCriminal Law (Special Provisions) Act, No. 1 of 1962, by which the burdenof proving that a confession was not voluntary has been placed on thedefendants. That burden has been discharged upon the balance ofprobabilities. It is no argument to say that these defendants have notin so many words stated that they were influenced in the matter of makingconfessions by the threat or inducement which we have referred to.In our view there was such a threat or inducement, and it is not necessaryto investigate now exactly what part such threat or inducement played :but that it did influence these defendants we have no doubt. It would beunreasonable to expect the defendants to remember, after all this lapseof time, exactly what threats or inducements were made at each ques-tioning, or to what degree their minds were affected by every remarkaddressed to them by those sitting round the table. It is sufficient that,6he threat or inducement, more likely than not, induced the defendantsto make their confessions. “ The use of violence and the threat of itare not in any civilized country recognized as legitimate aids to inter-rogation ; the holding out of hope is equally poisonous, for it is easy foran innocent man awaiting trial to be reduced to despair, and a despairingman may confess to anything in the hope of avoiding the worst. Thelaw presumes conclusively that a confession obtained under such cir-cumstances is valueless”. (“ The Criminal Prosecution in England*’by Lord Devlin, page 31.) It is no answer to say that Mr. Bandaranaikeprefaced or interrupted the making of the statements with a cautionthat the particular defendant was not obliged to say anything unless hewished to do so. The Privy Council in a recent judgment has madean instructive comment on the value to be placed on such a caution :“ Though the appellant understood that he could, if he wished; remainsilent he was (on his evidence) made to believe that for the price of hisconfession he could purchase advantage. When he was cautioned theinducements were not withdrawn. Rather had the time for decisionarrived as to whether he would avail himself of the benefits promised ”—see Sparks v. The Queen 1.
The 10th defendant’s position was that Major Caldera, who was thenin charge of the guard at Magazine Prison, spoke to him on several occa-sions and told him what he was to say before he went before the AdvisoryCommittee on 22nd February. The 10th defendant also said that whenhe went to the C.I.D. office on 28th February, Mr. Tyrell Gunatilleke
>(1964) A.C. 964 at 989.
practically dictated a statement to Mr. Selvaratnam who took downwhat was dictated as though it came from the 10th defendant himself,and that such dictation was from the record of the 10th defendant’sstatement made to the Advisory Committee. The 10th defendant’sevidence is contradicted by Major Caldera, Mr. Gunatilleke andMr. Selvaratnam. We are satisfied that the statement made by the10th defendant on 28th February was his own voluntary statementuninfluenced by Major Caldera or by Mr. Gunatilleke. The Chairman ofthe Advisory Committee, Mr. E. A. V. de Silva, has said that the 10thdefendant insisted on making a statement to the Committee, althoughhe was told that he need not do so. What is more, the 10th defendantafter making that statement to Mr. de Silva desired that his statementbe recorded again as quickly as possible. These circumstances tendto disprove the 10th defendant’s allegations against Major Caldera.There is also the 10th defendant’s letter to the Attorney-General (P152)written on 19th June 1962. In that letter he has written “ I havealready in my statement to the Police made a full disclosure of all factsknown to me and there is nothing further which I can truthfully addto those facts.” His letter written still later to Lakshman Jayakody(P153) on 1st November, 1963, in which he mentioned that he told theC.I.D. everything, but which he in evidence tried to make out to be anentirely false letter written at somebody’s instigation, is further proofthat his statement of 28th February was voluntary.
We therefore allowed the prosecution to produce the confession madeby the 10th defendant to the Police at the C.I.D. office on 28th February.
The 3rd and 4th defendants have given evidence explaining theirconduct and giving their interpretations of many items of evidence on.which the prosecution relied to establish the charges of conspiracy. Themain plank of their defence is that they jointly formed a plan, not tooverthrow the Government but to foil what they thought wasMr. Bandaranaike’s object, viz, to seize power and establish himself as adictator.
The principal events connected with their story of this plan begin on16th January. On that day, according to 4th defendant, Abeykoontold him about a new Government Bill which was to be passed beforeFebruary 4th. The object of the Bill was to impose the death penaltyon those who had been convicted of conspiracy to murder Mr. S. W. R. D.Bandaranaike. The Bill was to nullify the judgment of the Court ofCriminal Appeal which had on 15th January substituted a sentence oflife imprisonment for the sentence of death passed by the trial Judge.Opposition to this Bill was anticipated, and in that event all the Oppo-sition leaders in Parliament would be arrested, and Abeykoon read thenames of those who were to be arrested from a sheet of paper which hehad with him. Abeykoon’s informant was said to be Mi. Bandaranaike,and the only persons who knew of this intended move against the Oppo-sition leaders were the Prime Minister, Mr. Bandaranaike and Abeykoon.
[n order to implement this move .Abeykoon asked,. 4th. defendantto search for a large house in which the Opposition leaders could beiicarcerated, as Mr. Bandaranaike required a house for that purpose.. 4thdefendant accordingly telephoned to Stanley Senanayake to ask hisofficers to search for a large house. 4th defendant said that he haddoubts about the Prime Minister being a party to this move, and he there-fore asked Abeykoon to verify from her the *ruth of the story. He wasalso worried about the safety of the Opposition leaders, because of thedisorders that would ensue if such a move were carried out.
Added to this, there appeared in the Daily News of 16th January aletter entitled “ Whither Democracy ’* which worried 4th defendantstill more. Admittedly he brought it to the notice of Abeykoon becausethe letter seemed to encourage the ideals of totalitarianism. In November1961 Mr. Bandaranaike had, said 4th defendant, made a speech about“ a little bit of totalitarianism ” and he had also advocated a one-partysystem of Government as being suitable for Ceylon. 4th defendant gaveother instances of Mr. Bandaranaike’s actions in 1960 and 1961 of whichhe disapproved. He also referred to the allegations made in Parliamentthat Mr. Bandaranaike was trying to be a dictator—allegations whichwere also made by speakers at public meetings at about this time. 4thdefendant’s-.reaction to all these matters was to see 3rd defendant, whomhe considered the only person capable of dealing with the situation andfor whom he had the greatest admiration. 3rd defendant too said thatit was at this time that he himself thought that Mr. Bandaranaike washighly likely to take the opportunity to establish a dictatorship or oneparty Government.
Accordingly, 4th defendant saw 3rd defendant on the 17th. 3rd defen-dant has said that 4th defendant told him about the proposed Bill andasked him to look for a military building to house the arrested persons andhe agreed; also, that 4th defendant thought this was a move byMr. Bandaranaike towards becoming a dictator. 3rd defendant, like 4thdefendant, referred to charges having been made in Parliament, in thenewspapers, and elsewhere by the 17th that Mr. Bandaranaike was tryingto be a dictator.
On the 18th Abeykoon informed 4th defendant that his leave, whichAbeykoon had hoped to obtain for 2 or 3 weeks from the 19th, had beencancelled. It was on this day that the controversial Capital PunishmentBill was tabled in Parliament.
The cancellation of leave was discussed by 3rd and 4th defendants onthe 19th, and 3rd defendant said that 4th defendant thought it sinister ;the question of the arrests and the search for a house was brought upagain. 3rd defendant said that he went to Army Headquarters that dayto look for a safe place and Abeysinghe took him round. 3rd defendantremembered that day as it was a holiday.
On the 20th, 4th defendant’s daughter got married and the questionof the house was mentioned between 3rd defendant and 4th defendantagain.
In his search for accommodation for the arrested leaders, 3rd defendantsaid that he wen* again to Army Headquarters on the 22nd; he inspectedthe Magazines with Abeysinghe, and decided that the lecture room andoffice room attached to the Magazines were suitable for the purpose ofhousing 20-30 persons.
4th defendant did not inspect the rooms which 3rd defendant had de-cided upon as being suitable, nor does 4th defendant say that any furthercommunication passed between him and Abeykoon on the subject of ahouse. 3rd defendant said that he expected 4th defendant’s requestabout a house to be made in due course by the Police to the Army autho-rities through the proper channels, but we have no evidence that thematter was pursued.
This is a suitable point at which to make a comment on other evidencewhich touches this alleged search for a house. Stanley Senanayakesaid that in connection with the conference of 10th January to which hesummoned gazetted officers and Officers-in-charge of Police Stations,4th defendant telephoned to him and said that he wanted a large housein whieh=to keep the detenus who had been arrested a few days earlier overthe Radio Ceylon strike. Senanayake said that Inspector Azeez suggesteda house in the Borella area and Jebaneson suggested the Naval Com-mission of Inquiry Office. Senanayake denied a suggestion mck.de tohim in cross-examination that the search for a house was mentioned ata conference held on 16th Jam’ary or later, or that he was told thatthe house was required in connection with some political arrests.
Mr. Abeykoon said that while the Radio Ceylon strikers who had beenarrested were detained in Welikade Jail, he and N. Q. Dias thought thatit would be better to keep them in a private house and he was askedto find a suitable house. He accordingly asked some Colombo Policeofficers—probably Stanley Senanayake, 4th defendant and others—tofind such a house. Doole has said that Senanayake asked him to searchfor a large house, but he was no* sure of the date. K. A. R. Perera alsoreferred to such a reques*, but we do not think he recollected preciselywhen it vras made.
Explicit evidence has been given by Talwatte who was Officer -in-Charge of Cinnamon Gardens Police Station in January 1962. Hesaid that on 10th January he attended a conference summoned by StanleySenanayke at which Senanayake asked them to look for a vacant house,though he did not tell them what it was needed for. He looked at ahouse in McCarthy Road which somebody mentioned, but it was occupiedby the Education Commission. He has relied, in fixing the date, on hisentries P 24A and P24B in the Information Book of the Police Station.Since this witness said that he did not attend any conferences after that,
the suggestion made to Stanley Senanayake that the question of a housewas discussed at a conference on 16th January or later cannot be accepted.We have discussed this matter at this stage because it is our view thatAbeykoon did not mention anything about a house to 4th defendant aslate as 16th January. It is therefore unlikely that 4th defendant wouldhave mentioned the need for a house to 3rd defendant on 17th January.We are satisfied that 4th defendant asked Stanley Senanayake to tellhis officers to look for a house, but that happened on 10th January, andnot on 16th January or later as 4th defendant has tried to make out.
4th defendant said that on 23rd January Abeykoon informed him (1)that the controversial Bill was going through on the 25th or 26th, and (2)that a big strike which was expected to start soon after pay day wouldlead to trouble, and he wanted 4th defendant to be responsible for main-taining order in the whole of Colombo and the Western Province.
Both 3rd and 4th defendants said that they met on the 23rd night at4th defendant’s house and discussed Mr. Bandaranaike and his possiblecoup. 3rd defendant said that he mentioned his choice of the office andlecture rooms to 4th defendant at this meeting. He told 4th defendantthat Mr. Bandaranaike, who had been referred to as an Ayub Khan,
, and accused of trying to arrest not only the Opposition but also his ownpeople, might adopt the Ghana precedent and seize the leaders of theOpposition. According to 3rd defendant, 4th defendant describedMr. Bandaranaike as a megalomaniac whom he disliked, and in this respect3rd defendant agreed with 4th defendant. They discussed the stepsthat should be taken if Mr. Bandaranaike arrested the Opposition leadersand attempted to seize power. 3rd defendant said that he thought heconvinced 4th defendant that they should take steps to thwartMr. Bandaranaike if he attempted to do so, and he also obtained 4thdefendant’s permission to discuss the matter with 2nd defendant, as hewas not clear as to whether he should go to the Army Commander or not;and he did not want *o approach politicians or even the Prime Minister,nor did he want to go to the Army Commander, General Wijekoon.When asked for the reason why he did not go to the Army Commander,3rd defendant said that it was because Wijekoon admired Mr. Bandara-naike and would carry out any orders he received from Mr. Bandaranaikeprovided they were lawful orders.
3rd defendant confessed that although he was very fond of Wijekoon,who he felt would carry out his duties, he did not have confidence inWijekoon as he thought that Wijekoon would go straight toMr. Bandaranaike and tell him what 3rd defendant might disclose, andMr. Bandaranaike who wielded a lot of power those days would havepurged all of them. When asked to give reasons why he had no confidencein Wijekoon, 3rd defendant gave three instances of what he thoughtwas very weak, though bona fide, conduct on the part of Wijekoon.They are (1) Wijekoon stopped 7th defendant going to Jaffna in March1961, apparently because he was a Tamil, (2) a young officer called
Naganathan of the Light Anti-Aircraft Regiment was not sent to theEstate areas during a strike, (3) an order issued by Wijekoon during thetoken strike, that troops should not fire under any circumstances.3rd defendant later withdrew the first reason when it was pointed outto him that Wijekoon was out of the Island at the time in question.He did not, however, withdraw the second and third reasons. 3rddefendant accused Wijekoon of risking the morale of the Army bycertain actions of his, but he had to admit that he himself might havebrought about the same result by having admittedly issued orders toArmy officers behind the back of the General and without the latter’sknowledge. In his eagerness to criticize the Army Commander, 3rddefendant seems to have overlooked his own failure to conform to therequirements of discipline and good conduct. 3rd defendant hasadmitted that on 12th January Wijekoon had addressed all the officerscommanding Regiments. He had indicated to them quite firmly thathe was dead against a coup of any sort by the Army : that the Armywould certainly not act against the established Government ; and thathe would never support a coup. Yet, although the alleged plan tofoil a threatened coup by Mr. Bandaranaike was communicated toseveral Army officers of junior rank (some of whom he knew even lessthan Wijekoon), 3rd defendant was not prepared to confide in theArmy Commander. This seems to us a strange and inexplicable attitude.
We come now to the 24th morning when, according to 3rd defendant,he gave 2nd defendant the information he had received from 4thdefendant, and 2nd defendant at once said “ Go and tell the ArmyCommander.” 3rd defendant, however, felt that Wijekoon wouldwant to know who the informant was, and Abeykoon would not supporthim. Apparently 3rd defendant had implicit faith in 4th defendantand accepted all his information as being true, without taking thetrouble to check on it with Abeykoon or anybody else. However,3rd defendant persuaded 2nd defendant to fall into his way of thinking,and they decided not to go to Wijekoon but to go to the Governor-General, though not even to the latter at that stage but only afterMr. Bandaranaike had issued orders to arrest the Opposition leaders.3rd defendant said that they would not go to the Governor-Generalearlier because he was unpredictable and they were not certain whathis reactions would be.
On the 24th morning, according to 4th defendant, he gave StanleySenanayake instructions about the strike situation and the need forriot squads, stopping all leave to Police officers, and other instructionsconnected with the conference to be held that day : he also told himthat there would be a conference at 6 p.m. on the 27th to be attendedby all gazetted officers. He said that Stanley Senanayake then suggestedthat the Training School, Katukurunda, would be ideal as a house, ongrounds of security and because of its proximity to a hospital. 4thdefendant, on his own evidence, seems to have become quite excitedat the mention of “security” by Stanley Senanayake. On being told
that Abeykoon had mentioned the question of security, 4th defendanttook Stanley Senanayake to Abeykoon’s office and asked Abeykoonwhy he mentioned that to Stanley Senanayake. We find it difficultto understand why 4th defendant should have reacted thus to StanleySenanayake’s mention of Katukurunda Training School as ideal fora house, if it was ever mentioned. 4th defendant connected this referenceto a house with a request which he said the I. G. P. made to him on16th January. That was a request to him to search for a large housein which to house the Opposition leaders of Parliament whom, according' to what the I. G. P. told 4th defendant, Mr. Bandaranaike intendedto have arrested if the Death Penalty Bill was opposed by them. Theirnames, according to 4th defendant, were mentioned by the I. G. P.after looking at a paper he had in his hand. 4th defendant said thathe thereupon telephoned to Senanayake to ask his officers to look fora large house. But the cross-examination of Stanley Senanayake byMr. Wikramanayake was on a different basis from that put forwardby 4th defendant in evidence—see page 3023.
Q.On the 17th the I. G. P. informed Mr. 0. C. Dissanayake andyourself of the Government’s intention to rush this Bill through•.Parliament immediately ?
A. Yes*-
Q.Of its intention to prevent, to take steps to avoid, any delaysin the passing of the Bill ?
A. No.
Q.To get through with the Bill and the execution of the Bill asrapidly as possible ?
A. No.
Q. Mr. Abeykoon told you that there would be the possibility offilibustering ?
A. Mr. Dissanayake told me.
Q. And that if there was filibustering, members would have to becarried out of Parliament ?
A. Mr. Dissanayake told me.
Q. This is what Abeykoon told you and Mr. Dissanayake at thejoint conference on the 17th January ?
A. No.
Q. And that if necessary the entire Opposition would have to becarried out ?
A. No.
Q. That was what was told you by the I. G. P. ?
A. No.
That houses were looked, for for the purpose of housing membersof the Opposition who would have to be taken out in that manner i
Q-
a
A.
No.
Q. Persons in the Opposition including Dudley Senanayake,
J.R. Jayewardene and anybody else ?
A. No.
Q. I am putting it to you the I. G. P- said that the Leftists wouldhave to be locked up in the normal way in the Welikade Jafland the prominent members of Parliament, they wanted housesfor their detention, is that not the fact ?
A. No.
Presumably this cross-examination was upon instructions. It showsthat 4th defendant’s evidence that the search for a house which Abeykoonasked him to make in connection with the intended move against theOpposition leaders was, even until the 24th, known only to the PrimeMinister, Mr. Bandaranaike, Mr. Abeykoon and himself is incorrect:it also makes nonsense of 4th defendant’s evidence that he rushed fromhis office to the I. G. P’s office on the 24th morning merely becauseStanley Senanayake mentioned “ security ” in connection with a house.
There was nothing secret about the search for a house for the RadioCeylon strikers, since Police officers had been asked to look for one asfar back as 10th January. We do not believe that a house was eversearched for to fulfil any other purpose. Both Abeykoon and StanleySenanayake have denied that they were ever asked to search for a housein which to place arrested Members of Parliament or that such a matterwas discussed by them with 4th defendant, and we accept their denials.But it strikes us as a curious state of affair* if .the Head of the PoliceDepartment could not discuss this matter with the Superintendent ofPolice, Colombo, if he chose to, and had to explain his conduct to aDeputy Inspector-General of Police. We do not think that any suchsituation arose as 4th defendant tried to make out, but it has thrownsome light on the attitude of 4th defendant towards his superior.4th defendant went on to say that Abeykoon told him that the CapitalPunishment Bill would not be taken up on the 26th. 4th defendantsaid that he asked Abeykoon whether the Opposition leaders wouldbe arrested, and 4th defendant has given two different versions ofAbeykoon’s answer to that question. In examination-in-chief he saidthat Abeykoon did not answer that question. In cross-examination,several days later, he said that Abeykoon did answer the question bysaying “ Not only that; it is gc ing to be a little worse; Trade Unionleaders, Leftist leaders, potential trouble makers are all going to bearrested …. I do not know what that man (referring to
Mr. Bandaranaike) wants to do.” The difference in the two answersis significant.
4th defendant also said that while he, Abeykoon and Senanayakewere in Xbeykoon’s office, Abeykoon gave 4th defendant a typed listwith names of Leftist Opposition leaders (i.e., Members of Parliament)on one side and the names of Trade Union Leaders and other trouble-makers on the other side. 4th defendant said that he added PhilipGunawardena’s name in pencil, while Abeykoon had added in his writing3 or 4 names including that of Somawira Chandrasiri. 4th defendanthas sail that this list was given by him to Stanley Senanayake on the26th and was retained by the latter.
From Abeykoon’s office, according to 4th defendant, he and StanleySenanayake came to 4th defendant’s office, and they discussed 4thdefendant’s fears of Mr. Bandaranaike’s move to seize power. 4thdefendant said that he and Stanley Senanayake agreed that ifMr. B.eidaranaike ordered the arrest of the Opposition leaders, theyshould stop it. Stanley Senanayake has denied that he ever heard of theGovernment intending to arrest Leftists in order even to break thestrikes : and the first time he heard of any plan was on the 26th Januarywhen 4th defendant revealed his plan.
We now come to the 24th evening when 3rd defendant and 4thdefendant claim that they mot at “ Homelea ” and this same list wasshown by 4th defendant to 3rd defendant. According to 3rd defendant,4th defendant told lmn that the Inspector-General of Police had saidthat the Bill was not going to be taken up, but there were to be arrestsof Leftists and Trade Union Leaders. The list had typed on top thewords “ Detention Orders will be issued there were about 40 names,all of Leftists, but he could n >t say who they were except for PhilipGunawardena, whose name was added in 4th defendant’s handwriting,and some names written by Abeykoon, and ••henot signed.
This list is said to have contained the names of only Leftists, TradeUnion leaders and trouble makers. It should not have perturbed3rd defendant and 4th defendant. They have both said that If thearrest of Leftists was ordered there would be nothing illegal about it.What is more, 3rd defendant said that 4th defendant tcld him thatevening that the Bill was not going to be taken up—if so there wouldthen presumably be no excuse for arresting Opposition leaders—butthat the arrests of Leftist and Trade Union leaders would be carrii d out.Yet they both say that they then formed a plan, the details of whichaccording to 3rd defendant were—
to watch Udugama, R*jan Kadirgamar, S. A. Dissanayake,
John Attygalle and Heyn. The first four and N. Q. Dias werethought to be supporters of Mr. Bandaranaike.
to have the houses of Wijekoon, Barker and Udugama watched
so as to prevent Mr. Bandaranaike getting in touch with themand deploying the armed Forces.
a signal to be sent when Udugama left Jaffna.
if Wijekoon, Barker or Udugama stepped out of their houses
they were to be told to get in touch with 3rd defendant or4th defendant, and if they insisted on going out they wereto be followed and their positions notified to 4th defendantby radio.
3rd defendant was to arrange to take over protection of the
Governor-General to prevent Mr. Bandaranaike taking actionagainst the latter by arresting him.
Their position is that these steps were to be taken to prevent Mr. Bandara-naike seizing power, and that they expected him to arrest the Oppositionleaders and attempt to seize power at night. 3rd defendant has saidthat on the 24th night they thought that something might happen onthe 27th or later. The details given by 4th defendant are not so numerous,but they both agreed that the plan was made between them on the24th night.J.
We come now to the 25th morning. 4th defendant told his PersonalAssistant 19th defendant to jot down some notes which both of themagree are to be found in the document P19B, but 4th defendant saidthat 19th defendant was not aware of the meaning of the entries. Oneitem is “ Reports re poultry every 2 hours. Finel report 12.01 a.m.”Another rna.Hq “ R-rrncr in roosters 1 a.m.” and there i<: another “ Wire-break 12.40 a.m.” 4th defendant said that the first item meant thatStanley Senanayake was to have the Leftist leaders’ movements checkedevery 2 hours. This document will be dealt with in greater detailelsewhere.
That afternoon 4th defendant admittedly telephoned Vandendriesenwho was at the Depot and asked him to bring him 3 Stirling guns.Vandendriesen brought the 3 guns and 6 empty magazines to 4thdefendant’s house that evening. He was told to take away the emptymagazines and bring them filled by the 27th. 4th defendant, 19thdefendant, Sol Gunatilleke and Johnpulle went to the Officers’ Messtogether to play bridge, and according to Gunatilleke and Johnpulle4th defendant secretly told Gunatilleke that he should arrange to beDuty Officer on the 27th from 9 p.m. (this was later changed by 4thdefendant to 4 p.m.). 4th defendant said that he gave this directionopenly to Gunatilleke, but we prefer to believe Gunatilleke who struckus as a truthful witness. What is more significant is tne fixing of the
27th on the 25th evening. It was on the 25th night that, according toBrohier, 5th defendant told him that the coup was to take place on the27th. Mr. Wikramanayake’s explanation, during his closing addresswas that 4th defendant wanted a Duty officer to be at hand for thepurpose of the Strike, but we reject this explanation as no strike was,in our view, expected on the 27th. 4th defendant himself has madethis clear by bis letter P181 of 30th January in which he refers toAbeykoon haying told him on the 22nd or 23rd that serious troublewas anticipated from about the 29th, and that it could be caused bya sudden strike of all the unions accompanied by violence. He saidin that letter that he was asked to take all possible precautions.
That same morning 3rd defendant claimed to have discussed with 2nddefendant the plan that he and 4th defendant had made, and tohave told 2nd defendant to watch for any unusual orders to the Armyand also the position at Staff Conferences. He also said that he and3rd defendant sent for Abeysinghe and told him that Mr. Bandaranaikewas trying to seize power and become a dictator, and that 3rd defen-dant’s plan was to go to the Governor-General at the earliest opportunity.Wheat Abeysinghe asked about the Army Commander, he was toldby 3rd defendant that the Army Commander would be brought in atthe earliest opportunity. Abeysinghe then agreed to his magazine'building being used to hold certain persons but was not told who theywere, nor was he told that it was planned to arrest Mr. Bandaranaike.The Attorney-General suggested to 3rd defendant that Abeysinghe,whom he did not know well, was brought into the plot in order that theymight have control of the ammunition in the Magazines.
On the 26th morning, 4th defendant said he met Abeykoon whoasked “ Are you ready for tomorrow ?” and 4th defendant told him thathe had summoned a conference of outstation officers for the morningand of Colombo officers for the evening of the 27th. Aid when he askedAbeykoon if Mr. Bandaranaike was still going to arrest Oppositionleaders, Abeykoon said that he was “not sure”. When he askedAbeykoon to verify this from the Prime Minister, he was told that shewas going to Kataragama and returning on the 28th or 29th. 4thdefendant said that he asked Abeykoon for the final list of persons to bearrested as he had given his list to Stanle}- Senanaj'ake, and Abeykoonsaid that he would got it from the C. I. D. and have it ready by the27th. 4th defendant said that he felt Abeykoon was evading hisquestion about the arrest of the Opposition leaders.
4th defendant said that he met Stanley Senanayake at about 11 a. m.and told him that, if an illegal order came, he (4th defendant) wouldarrest Mr. Bandaranaike and Stanley Senanayake was to arrest N. Q.Dias, and Stanley Senanayake agreed with enthusiasm. It was fortunatefor 4th defendant that Senanayake reacted in this way, because as farback as the 24th night, 4th defendant and 3rd defendant had agreed
Without Se: lanayake’s knowledge that this was to be Stanley’s role.4th defendant said that he also told Senanayake to watch N. Q. Dias£.*001 the 27th morning, and to choose any personnel he wished for thatpurpose. 4th defendant said that he told Senanayake that he wantedan officer to watch Raj an Kadirgamar and another officer for various.other jobs, and Senanayake suggested Johnpulle and 20th defendantfor these duties.
These are not the only matters in which, according to 4th defendant,Stanley Senanayake became an active collaborator. For Senanayakeis reported to have asked 4th defendant for gazetted officers and equip-ment from the Training School, and vehicles from the Central Garage,and to all of these requests 4th defendant said he agreed, though heobjected when Senanayake asked for men from the Depot, and onlyconsented when as an alternative Senanayake said he would get themfrom the Training School.
It will be noticed that 4th defendant in his evidence with regard tothe events of the 26th morning has fixed the 27th as the day on whichthings were expected to happen. Indeed, on the 25th evening he men-tioned the 2 7th to Vandendriesen and to Sol Gunatilieke, in connectionwith loaded magazines for the Stirling guns and the Duty Officer’s taskrespectively. How did 4th defendant fix on that date ? 3rd defendantsaid in evidence that when 4th defendant informed him on the 26thnight that the Prime Minister was going to Kataragama on the 27th,3rd defendant then thought that Mr. Bandaranaike would act in herabsence on the 27 th as she would be away on the 27th night: and whenthey met for the second time that night they agreed, according to3rd defendant, that the 27th was an extremely likely day. Yet 4thdefendant’s evidence that Abeykoon asked him on the 26th morning “ Areyou ready for tomorrow ?” strikes.us as an attempt to fix responsibilityfor the choice of this date on Abeykoon.
4th defendant admittedly met Brohier on the 26th afternoon and4th defendant’s version is that Brohier told him that Senanayake wantedofficers, men, equipment and ladders from the Training School,and Vandendriesen wanted ammunition. 4th defendant said he toldBrohier to give them what they needed and to send ammunition if theDepot required it, even though 4th defendant himself could not under-stand why Vandendriesen wanted ammunition from the Training School.Brohier denied that he told 4th defendant of being asked for laddersand ammunition, when this was suggested in the cross-examination ofBrohier. Vandendriesen was at Police Headquarters that afternoon,but it does not seem to have occurred to 4th defendant to ask him aboutthis. 4th defendant said that he also asked Brohier to send an Inspectoror Sub-Inspector to take down phone messages at Johnpulle’s house.After a meeting of the Officers’ Mess Committee, 4th defendant saidthat he told Vandendriesen and other officers who were there to attend
a conference at 6 p.m. on the 27 th ; he also told Stanley Senanayakethat he would pick him up on the 27th morning to take him for awalk.
That night 3rd defendant and 4th defendant, according to both ofthem, met at 4th defendant’s house, the first time at about 7 p.m. Theyhave both said that they decided that as the Prime Minister was goingto Kataragama on the 27th Mr. Bandaranaike would try to seize powerthat night. 4th defendant gave an additional reason, viz., that Abeykoondid not directly answer his question about the arrest of the Oppositionleaders.
Further confirmation of 3rd defendant’s suspicions seemed to comefrom a conversation which he said he and Rajapakse had at about 10 p.m.that night. It is common ground that 3rd defendant and Rajapaksemet that night, but the time mentioned by Rajapakse was about mid-night. While 3rd defendant said that the meeting took place at Raja-pakse’s request, conveyed to 3rd defendant by 9th defendant, and wasnear 9th defendant’s flat, Rajapakse said that 14th defendant tookhim to 3rd defendant who was in 9th defendant’s car near 14th defendant’sflat, and that 9th defendant and 14th defendant were also present whenthey spoke to each other on the rocks at the end of Melbourne Avenue.The subject of conversation is also a matter of controversy. 3rd^defendant «aid that Rajapakse informed him (1) that Lieut. Col.Att^galle had informed Rajapakse that certain drastic steps would betaken in a few days regarding the pending strikes, and that Mr. Bandara-naike was the strong man in the Government, (2) that Rajapakse hadheard at the Y. M. C. A. that evening that there would be serious reper-cussions whichever way the Industrial Court decision to be given onthe* 27th went, and (3) that Rajapakse thought the Army would beused for some illegal purpose, which he did not disclose to 3rd defendant,and he was therefore concerned about that. 3rd defendant got theimpression that Rajapakse expected him to do something about it,and agreed to back 3rd defendant whole-heartedly and to keep himinformed of any news. 3rd defendant connected this information aboutthe Army being used for some illegal purpose with Mr. Bandaranaike’sexpected coup. Rajapakse’s version is different and is given elsewhere.
3rd defendant said that he went to 4th defendant’s house a secondtime, at about 11 p.m., and gave him Rajapakse’s information. Theydiscussed the plan again, and 3rd defendant says he told 4th defendantto watch Udugama closely. 3rd defendant and 4th defendant are notagreed as to the decision they made in regard to Wijekoon and Barker.According to 3rd defendant they made a firm decision to stop Wijekoonand Barker leaving their houses by using Police personnel ; accordingto 4th defendant these two commanders of the Army and Air Forcerespectively were not to be restrained and they were to be free to goabout, but 4th defendant was to have them u atched. On this question,we have the evidence of Doole and Mendis who were ordered by 4th defen-dant at the 27th evening conference to take a contingent of men each to
the Air Vice Marshal’s and Army Commander’s houses respectively. Theyhave both said that 4th defendant ordered them to see that Barkerand Wjekoondid not leave their houses after 12.30 a.m. and 12.15 a.m.respectively. We reject 4th defendant’s evidence on this point.Mr. Wikramanayake in his closing address argued that the decisionwith regard to Wijekoon and Barker was taken as a result of Rajapakseinforming 3rd defendant that night about Mr. Bandaranaike trying touse the Services. He forgot that 4th defendant had, as did 3rd defendant,referred in evidence to a decision about the Service Commanders havingbeen taken on the 24th evening. We also think that no reasonablej»erson would have thought that Wijekoon, Barker or Kadirgamarwould obey illegal or unconstitutional orders given to them byMr. Bandaranaike. 3rd defendant’s lame excuse for not consulting hi3Army Commander does not explain why Barker or Kadirgamar shouldhave been suspected of willingness to act improperly.
4th defendant also said that it was on the 26th night that an earlieridea they had toyed with of protecting certain Ministers by taking theminto custody, (what he termed ** protective custody ”) was abandoned.It is an unusual meaning which 4th defendant sough* to give to thisphrase, for it generally has a more sinister meaning. We do not thinkthat 4th defendant was frank in his evidence on this matter. Therehave been references by prosecution witnesses such as Brohier andJStanJey Senanayake to the arrest of Ministers being one of the objectivesof the conspiracy as told them by 5th defendant and 4th defendantrespectively. 3rd defendant’s evidence on this point confirms that theywere so informed.
We come now to the eventful day, 27th January. Admittedly,Stanley Senanayake was picked up by 4th defendant early that morning,and they went to various places including Galle Face. 4th defendant saidthr.t Senanayake told him that he had chosen A. S. Ps ‘ Puvv ’ and* Tiny ’ Seneviratne to carry out the arrest of Mr. N. Q. Dias and thathe was ** ready for anything ”. No more details of their conversation,of any importance emerged from 4th defendant’s evidence.
4th defendant said that he interviewed several Police Officers in hisoffice that morning, starting with Johnpulle and 20th defendant. Headmitted that he told Johnpulle (1) to watch Rajan Kadirgamar fromthat time onwards, (2) to get a covered vehicle, in which he said heintended to transport the Opposition leaders from their place of custodyafter arrest to Army Headquarters, (3) to have Radio Telephone Cars andloud hailers and motor cycles with armed pillion riders ready near theTraffic Office, so that he could call for them if they were needed. 4thdefendant has stated that when the orders he gave Johnpulle werealmost completed, 20tb defendant came there on being summoned byhim, and he told 20th defendant to help Johnpulle in watching Kadir-gamar. Johnpulle’s version of the instructions that he and 20th defendantreceived that morning from 4th defendant appears elsewhere in uhisjudgment.
4th defendant next interviewed Thuraisingham, Superintendent ofPolice, W. P. (Central), and 5 A. S. Pe who were under him. He gavethem instructions which are mentioned in another part of this judgment.Put there is one matter upon which we wish to comment here. 4thdefendant said that after he started that morning conference theInspector-General of Police sent for him and told him that the list ofpersons to be arrested was the same list as that of the 24th. and gavehim a copy after inserting Philip Gunawardena’s name. Again thequestion arises as to why 4th defendant continued to make preparationson the footing that Opposition leaders were going to be arrested byMr. Bandaranaike when «.he list contained the names of only Leftistleaders. It is the position of 3rd and 4th defendants that they were notgoing to move if only Leftists were going to be arrested. Of courseAbevkoon and Stanley Senanayake have denied that there were any suchlists of persons to be arrested shown by Abeykoon.
4th defendant next saw Jayatileke, A. S. P., Transport, and instructedhim to have 15 vehicles ready to arrest Communists by midnight.Though 4th defendant said in evidence that Jayatileke told him thatthe vehicles were required by Stanley Senanayake, Jayatilekedenied he told 4th defendant that.
Rosemalecocq, Superintendent of Police, W. P. (South) was next toldthat he should be prepared to arrest trouble makers like Leslie Goone-wardena on receipt of an order from the Inspector-General of Policeabout midnight.
P. R. de S. Seneviratne, A. S. P., was admittedly instructed by 4thdefendant to get a party consisting of I Inspector, 2 Sergeants and 16Constables from the Depot Police Station and guard the Wireless Roomat the Secretariat. We have also referred elsewhere in this judgmentto the instructions given by 4th defendant to Arndt, Abeysekera andDep that morning.
It was not disputed at the trial that the 4th defendant did in fact onthe morning of the 27th January issue orders for the arrest of sevenLeftists, five of them being members of Parliament, and one GovernmentMember of Parliament. The instructions given by the 4th defendantwere that arrests were to be made on orders which would be issuedeither “ from Police Headquarters ” or from the Inspector-General **between 12.30 and 1 a.m. on the night of the 27th – 28th January.What was very keenly disputed was the question whether or not theseorders for arrest were issued by the 4th defendant at the instance of theInspector-General. This question has been fully agitated during thelong course of this trial and the closing addresses of counsel, and we agreewith the Attorney-General that it is one of major importance. Some ofthe matters we have to discuss in this connection may require moredetailed consideration at later stages in this judgment.
The Inspector-General, General Wijekoon and Mr. Bandaranaike eachcategorically denied any knowledge of a Government decision to effectarrests of Leftists and trade union leaders about the end of January, andthe Inspector-Greneral and Mr. Bandaranaike have further denied thatthey had any secret idea of making such arrests.
The 4th defendant’s version of the matter was tnat the Inspector-General first spoke to him of arrests on 16th January in connection withthe information that the Government proposed to introduce a CapitalPunishment Bill to nullify the judgment of the Court of Criminal Appealin the Assassination case. Mr. Bandaranaike had, it is alleged, told theInspector-General of the Government’s intention to pass the Bill intolaw at any cost, and with that object to arrest all Opposition leaders,including those who were not Leftists. On this occasion the 4th defendantwas ordered by the Inspector-General to search for a large house to detainthose arrested persons. The 4th defendant himself thought that forsecurity reasons an ordinary house would not be suitable for this purpose.That was how he came to solicit the 3rd defendant’s assistance to findsuitable premises within the Army perimeter, and how ultimately by23rd January, the 3rd and 4th defendants definitely decided that abuilding in the Magazine premises at Army Headquarters would be usedto detain arrested persons. We must state here our reasons for rejectingtheir evidence that the decision was made in connection with an officialproposal to detain Opposition leaders.
The 4th defendant had to admit that “ he does not think ” that heinformed the Inspector-General that a place within Army Headquartershad been selected to house arrested Opposition leaders, and to admitfurther that the Police Department made no formal request to the Armyto use Army premises for this purpose. This although the 3rd defendanthad on 17th January said that he would expect such a request to come“ through the proper channels ”. The 3rd defendant himself did notinform the Army Commander of this decision to house important civiliandetenues in Army premises. Nevertheless, on 24th January, Col. Abey-singhe of the Ordnance Corps was ordered by the 3rd defendant or the2nd defendant to be at Army Headquarters ready to receive and detainarrested persons, and on the 27th he was told to take Arndt, Superin-tendent of Police, to Army Headquarters at midnight in order to carryout the detentions. We are satisfied, from the evidence of the 3rdand 4th defendants themselves, that the plans which they thus completedallegedly for the detention of Opposition leaders are not reconcilablewith the version that they expected to receive official orders for arrestsfrom the Inspector-General or his superiors. We think, on the contrary,that these plans were deliberately withheld from the knowledge of theArmy Commander, because they were secret and unofficial plans.
There was other evidence of a search for a house which the defencesought to utilise in their favour. During the cross-examination ofStanley Senanayake, it was elicited that when he was being questioned
at Temple Trees on 19th February, he had mentioned something about asearch for a house, and that then the Inspector General had interruptedhim to state that that had been on an official Ministry order. Senanayakewent on to relate in evidence further details about this matter : thatwhile holding a conference at his office he received a telephonemessage from the 4th defendant instructing him to search for a vacanthouse in Colombo ; and that when he mentioned tins matter at theconference itself, Jebaneson the 18th defendant suggested the houseused as the Naval Commission office. Senanayake said that the conferenceat which this matter arose was one attended by both gazetted officersand officers-in-charge of Police Stations, and by reference to entries inhis weekly diaries he said that the only such conference held aboutthat time was one on 10th January 1962. The witness Talwatte whowas Officer-in-charge of Cinnamon Garden station in January 1962,confirmed Senanayake’s evidence that this matter of a house was broughtup at a conference at which he was present on 10th January. On thatoccasion Senanayake instructed him to ascertain whether a house inMcCarthy Road in his area was vacant, and he carried out the instructionlater on the same day. His evidence is supported by entries in theInformation Book that he attended the conference, and that thereafter-on Senanayake’s orders he went to McCarthy Road “ about an informa-tion.” .
4»
Inspector Suraweera, who was then Officer-in-charge of the Fort PoliceStation, thought that he had attended two conferences in January atSenanayake’s office, at one of which officers present were ordered to havesearches made for hand-bombs. He remembered also that at one ofthese conferences mention had been made of a search for a house in whichto detain trouble-makers But he had no independent recollectionof the dates on which these conferences were held ; and we are unable torely on his answer to a leading question in cross-examination that thetwo matters — search for hand-bo mbs and search for a house — werementioned at different conferences. Nor is there support in Senanayake’sweekly diaries for the suggestion that there were two such conferences,and not only the one on 10th January.
Senanayake had summoned a conference of gazetted officers for 16thJanuary at which he gave instructions for a special squad to be imme-diately formed to “ trail ” Leftists. A. S. P. Robert Perera thoughtthat the matter of a search for a house was mentioned at that conference.He himself had much to do with the order to form the special squadand to note the addresses of persons suspected of inciting strikes. Buthe had no duty to perform with regard to the search for a house. Theconference of 16th January being one for gazetted officers only, neitherInspector Talwatte nor Inspector Suraweera could have attended it;so that Perera’s recollection was at fault when he thought that thi3matter of a search for a house was mentioned on the 16th. The evidenceof Suraweera and of Robert Perera does not create doubt as to the accu-racy of Senanayake’s version and of Talwatte’s evidence that he did on
10th January inspect a house at McCarthy Road on Senanayake’s ins-tructions. Talwatte was the only witness called at the trial who hadperformed some duty in this connection, and he had noted the matterin his Information Book. We have therefore to accept the prosecutionversion that about 10th January, the Inspector-General wanted a searchmade for a place to house Radio Ceylon technicians who had been detainedon or about 4th January. We do not accept the 4th defendant’s evidencethat he was asked by the Inspector-General on 16th January to searchfor a house for the detention of Opposition leaders. Indeed, on thatevidence itself, the 4th defendant did not himself consider that a privatehouse would be suitable for such a purpose. His own explanation forspeaking to the 3rd defendant on the 17th January was that he wantedthe 3rd defendant’s help to secure premises within the Army perimeterto house Members of Parliament.
One matter deposed to by Stanley Senanayake was that on 26thJanuary, the 4th defendant wanted him to take down a list of namesand addresses of certain Leftists, the addresses being furnished fromtwo telephone directories, and that the 19th defendant assisted in thismatter. Stanley Senanayake maintained that he took down eightnames on a piece of paper. He said that the paper had been in the pocketof his bush coat, and that it was burnt after his first questioning atTemple Trees. It is clear from the evidence that some paper—whateverit wa^-was burnt by Stanley Senanayake’s wife in consequence of adirection he gave her on the Telephone from Temple Trees on 28thJanuary.
According to the 4th defendant, the Inspector-General gave him onthe 24th January a list of names, those of Leftist opposition leaders onone side, and those of trade union leaders and other “ trouble makers ”on the other. This was a typed fist, but a few names including that ofMr. Somawira Chandrasiri, a Government Member of Parliament, werein the handwriting of the Inspector-General, and the 4th defendant him-self wrote on it the name of Mr. Philip Gunawardena. At the time hereceived the list, the Inspector-General told him that this was not thefinal list, which latter would be ready on the 27th. The 3rd defendantconfirmed that such a list was shown to him by the 4th defendant onthe 24th, and that it contained about forty to fifty names. The 4thdefendant’s version is that he handed this list to Stanley Senanayake onthe 26th, for the reason that according to him he entrusted Stanley Sena-nayake with the task of preparing for the arrest of persons on this list.
The 4th defendant denied that he asked Stanley Senanayake on the26th to take down eight names and addresses to which the latter referred ;and it was the defence position that the only list which Stanley Sena-nayake had, and which was later burnt at his instance or else suppressed,was the typed list received on the 24th by the 4th defendant from theInspector-General. The 4th defendant further stated that on the 27thmorning the Inspector-General handed to him another copy of the sametyped list, with only one difference, that on it the Inspector-General
himself wrote the name of Mr. Philip Gunawardena. The Inspector-General asked the 4th defendant to return it “ after you have finishedwith it ”, but because the Inspector-General had left the office after the4th defendant’s conference with the Western Province (Central) officers,the 4th defendant locked it up in his steel cabinet before he himself leftoffice that day. The defence position has been that the C.I.D. musthave found this final list when the steel cabinet was searched in February,and that the list has been deliberately concealed or destroyed. If sucha list and/or its copy had actually existed, there would have been clearproof of the 4th defendant’s version that the Inspector-General officiallyordered the arrests of the persons named on the lists. But we are unableto hold that any such list did ever exist.
Firstly, though not most importantly, there is the circumstance thatStanley Senanayake was not cross-examined with respect to the alle-gation that such a list was ever in his possession. There was very lengthycross-examination by Messrs Ponnambalam, Wikramanayake and Kan-nangara with respect to Stanley Senanayake’s version that he wrotedown a list of names, and with respect to its subsequent destruction,but no direct suggestion was made to Stanley Senanayake that he had, been givexi a long list which contained the writing of the Inspector-General
and of the 4th defendant himself.
» *
The 4th defendant wished us to believe that when he gave his ordersfor arrests on the morning of the 27th January at a conference of WesternProvince (Central) officers, he had referred to the list alleged to have beenreceived by him from the Inspector-General. The only support thathe got from some of those officers was evidence that he had left the roomon receipt of a message from the Inspector-General, and had returnedwith a paper in his hand. Thereafter he referred to a “ piece of paper ”or a “ slip of paper ” when giving the orders for arrest. It is very doubt-ful whether a paper containing a typed list of thirty to forty names couldhave been described by these officers as a “piece of paper ” or a “slipof paper ”.
According to the 4th defendant, this alleged list contained the namesof persons whom he expected to be arrested that very night. Thatbeing so, it is difficult to understand why the 4th defendant locked upthe list in his safe and did not keep it in his possession ; so importantand extensive an operation as the arrest of persons named in the listwould surely have required further reference to and checking of the listlater on the same day. Even if we accept Mr. Wikramanayake’s ex-planation that the 4th defendant did not himself need the list any longer,one would have expected the 4th defendant to hand it back to the Ins-pector-General at the latter’s house. The 4th defendant knew that theInspector-General would be at home that afternoon, because the 4thdefendant had arranged for the Inspector-General to take an oil bathon that day.
Stanley Senanayake in his first .statement at Temple Trees during theearly hours of the 28th January, made no reference either to the listin his own handwriting which he said was destroyed subsequently,nor to a list of the description now spoken to by the 4th defendant. IfSenanayake’s version be true, (that he had cnly a list in hi3 own hand-writing), a disclosure concerning it would obviously have been dangerousto himself. On that version, it is understandable that Senanayake didnot mention it in his first statement, and that very soon after he directedhis wife to burn the list, because his writing on it could have seriouslyincriminated himself. On the other hand, if the list, (as the 4th defendantclaims) bore the writing of the Inspector-General and of the 4th defendanthimself, it was a document which would have established that anyotherwise suspicious orders which Stanley Senanayake himself may havegiven were in fact merely in execution of orders of x>he Inspector-Generalhimself. We are satisfied that if indeed such a list was in his po ket athome, Stanley Senanayake’s first impulse would have been to protecthimself from suspicion of any unlawful activity by speaking of the listbearing the handwriting of the Inspector-General, and having it fetchedto Temple Trees from his home. To bum such a list was to destroy theonly available documentary proof of his own innocence. The fact thatthe actual paper was burnt strongly supports the version that it wasa paper in the handwriting of Stanley Senanayake himself, and not thelist which the 4th defendant claims it to have been.
Mr. Wikramanayake advanced a highly involved theory that StanleySenanayake may have deliberately decided that it would be dangerous(we cannot see how it would have endangered Senanayake himself)to produce the typed list with the Inspector-General’s handwriting onit; but we cannot agree that in the circumstances prevailing that night,Stanley Senanayake had either the inclination or the opportunity tocontemplate a decision so contrary to the obvious and self-protectivecourse of producing the list forthwith. Tor reasons which we state inother contexts, we have also to reject the suggestion that the Inspector-General or some C.I.D. officer was able, during these busy hours at TempleTrees, to induce Senanayake to suppress the existence of a list whichcould have established his own innocence of any illegal activity.
Connected with the 4th defendant’s allegation that he gave to Sena-nayake a list of persons to be arrested, is the allegation that the taskof arresting Leftists and trade union leaders was officially assigned toSenanayake. The 4th defendant himself has admitted that he did giveorders to Western Province (Central) officers for the arrest of a few suchpersons and to Rosemalecocq for the arrest of one Leftist Member ofParliament. We know also from the 21st defendant that he receivedan order through Orr for the arrest of a Member of Parliament and aformer Senator. If, as the 4th defendant alleges, the Inspector-Generalhad ordered him to arrange for the arrest of about forty persons, thenthe alleged ass gnment to Stanley Senanayake would have necessitatedarrangements and orders by Senanayake for at least about twenty or thirty
arrests. If indeed Senanayake was given a list with some names hand-written by the Inspector-General, or even an oral order from the 4thdefendant to arrange for some arrests. Senanayake must necessarily haveissued numerous orders, at least tentatively, in j. ursuance of his assign-ment. But of several Police officers who gave evidence, a fair numberof whom were serving under Stanley Senanayake himself, not one testifiedto any single order for arrest given by Senanayake, nor according to ourrecollection was any Police officer cross-examined about the receipt ofany such order from Senanayake. There was literally not a word ofevidence to support the version that so important a task had been assignedto Senanayake.
According to the 4th defendant, the evening conference on the 27thcommenced with his remark “ you know already what S.P.C. (Senanayake)has ordered. Have you any difficulties.” Such a remark, if made,pre-supposes that the 4th defendant himself was probably aware of ordersalready given by Senanayake to officers present at the conference.Not one of these officers, however, was asked any question at the trialwhich might have elicited an answer that the 4th defendant did makesuch a remark, nor as we have stated above was any attempt made at theTrial to acquaint the Court of the purport of any of these orders which§enanayakejs supposed to have given, and which he must have givenif the 4th defendant’s version be true. The 4th defendant alleged thathe had directed Senanayake personally to arrest Mr. N. Q. Dias. Buthis evidence does not disclose that he even troubled to ascertain fromSenanayake the details of arrangements for the task of arresting Membersof Parliament and others. So far as the evidence goes, neither the 4thdefendant himself, nor any A.S.P. or O.I.C. serving under Senanayake,had knowledge of a single order from Senanayake in performance of thevery important " task ” said to have been entrusted to Senanayake.
The evidence concerning the actual arrest of the Member of Parlia-ment for Baddegama shows that in that connection the 21st defendant,Superintendent of Police, Galle, had his two Assistant Superintendentsof Police, and at least three Inspectors specially gathered together atthe Galle Police Station. Such special arrangements were only to beexpected at many stations in Colombo also, if Senanayake was in factpreparing to arrest a number of Members of Parliament. Nevertheless,at the conference held on the evening of the 27th. the 4th defendant pro-ceeded to give assignments to a number of Colombo Assistant Superin-tendents of Police, without troubling to inquire from them whether theywould already be engaged in carrying out or supervising arrests which(according to the 4th defendant) must have betn ordered by Senanayake.The 4th defendant’s assumption, that these Colombo officers would befree to perform the tasks which he assigned to them, belief his claim thathe had ordered Senanayake to arrange for a large number of arrests inColombo.
For reasons stated above at some length, we have to reject as false the4th defendant’s evidence that he did assign to Senanavake the task ofmaking a number of arrests. There was accordingly no occasion for himto give to Senanayake the list of names which the 4th defendant is saidto have received from the Inspector-General on 24th January, and wehold that Senanayake was not given such a list.
We have thus far shown that the 4th defendant failed at the trial tosubstantiate his version that the Inspector-General had instructed himto make arrangements for the arrest of Leftists, including Members ofParliament. But there is other material which shows positively thathis version is false.
We shall discuss elsewhere the statement (P 159) which the 3rddefendant made at Temple Trees on 28th January, and the letter (P 181)dated 30th January 1962 which the 4th defendant wrote to the AdvisoryCommittee shortly after his detention. In his statement, the 3rd defen-dant had admitted that the events of 27th January for which he took fullresponsibility, involved a decision to arrest Leftists, and that it was hisidea to effect such arrests, whether before or after meeting the Governor-General at Queen’s House. For reasons which will be discussed laterwe hold this admission to be true as against the 3rd defendant. The4th defendant’s letter (P 181) referred to some of the actual events ofJanuary 1962 and to some actual orders he gave to Stanley Senanayakeon and after 22nd January 1962. But he there made no mention what-ever of a discussion with the Inspector-General on 16th or 17th Januaryconcerning an alleged scheme (of the Government or Mr. Bandaranaike)to arrest Opposition leaders.
This failure of 4th defendant to mention then the alleged talk by theInspector-General on 16th January undermines the foundation of thedefence now set up by the 3rd and 4th defendants, which is that theircoming-together, their thinking thereafter, and their ultimate planningand activities all originated because of such a talk on that day. Whenthe 4th defendant made representations in that letter about his unlawful,unjust and humiliating arrest, this talk must necessarily have beenpresent to his mind as the cause and origin of the events which led to hisarrest. Nevertheless, although he did refer in the letter to a conver-sation on 22nd or 23rd January when the Inspector-General had spokenof serious trouble expected about the 29th, which conversation (accordingto the latter) had led to his giving some precautionary Police orders,he did not refer to the so much more important talk cn 16th Januaryabout arrests. Having considered the 4th defendant’s explanations,we are satisfied that the true reason why he failed to refer to this talkis that no such talk did in fact take place.
The “ first ” statements made by these two defendants satisfy us thatin fact the admitted decision to arrest Leftists was their own decisionand not the consequence of any instructions for arrest given by theInspector-Gen eral.
The 3rd defendant’s own conduct is also relevant in consideringwhether the Inspector-General in fact spoke to the 4th defendant of thecontemplated arrest of Opposition leaders, or even tentatively orderedthe arrest of Leftists and Trade Union leaders. The 3rd defendant saidthat, at the 4th defendant’s request, he agreed to make available abuilding at Army Headquarters within the control of the Ordnance Corpsfor the reception of Opposition Members of Parliament to be arrestedon Government orders. Although he had originally told the 4th defen-dant that a request for the use of this building must come ultimatelythrough normal official channels, it is perfectly clear that if theoperation the 3rd defendant had in mind had not been called off on thenight of the 27th January, this Army building would have been utilisedfor the reception of important civilian arrestees without the knowledgeand sanction of Army Headquarters.
The agreement to provide at Army Headquarters a building tohouse either Opposition Members of Parliament or Leftist Members ofParliament and Trade Union leaders was, according to the evidence ofthe 3rd defendant himself, a purely official matter, because on hisversion he expected that the arrests of those persons would be carriedout in pursuance of official orders received from the Inspector-Generalof Police and having the approval of the Parliamentary Secretary, whoit is said gave orders on the Prime Minister’s behalf. That being so,it is to us inexplicable why it was that no request was made by thePolice Department to General Wijekoon or to his Chief of Staff forthe use of this building for what would have been a civilian officialpurposed Also inexplicable is the fact that the 3rd defendant did noteven inform Army Headquarters of the request and the arrangement forthe use of this building and for the use of Army personnel to keep civiliansin custody there. We have no reason whatever to suppose that, in thecircumstances prevailing at the time, General Wijekoon would haveregarded with the slightest suspicion any official intimation to him thatthe Government was contemplating a possible need to arrest Oppositionor Leftist and Trade Union leaders. On the contrary the General’s ownadvice to the Government (relied on strongly by the defencein other contexts) had been that one sure way to tackle strike situationswould be to arrest leaders and inciters. We shall deal presently withthe 3rd defendant’s explanation of his reluctance to convey to the ArmyCommander his alleged suspicions concerning Mr. Felix Dias Bandara-naike. But at this stage it suffices to point out that that explanationfurnishes no answer for the failure to inform the Army Commander of thePolice request for a building to house detenues, and for the unwarrantedorders given to Colonel Abeysinghe to receive, and quite obviously toguard, civilian detenues in Army premises.
We are compelled to the conclusion that the plan to arrest Leftistsand Trade Union leaders and the intention to detain them at ArmyHeadquarters (admitted by both the 3rd and 4th defendants wereregarded by these two defendants as being as much their own secret
as their alleged counter-plan to arrest Mr. Bandaranaike and Mr. N. Q.Dias. We hold that it was solely their plan and not one proposed bythe Inspector-General or Mr. Bandaranaike.
We revert again to the events of 27th January and to the evidence ofthe 3rd and 4th defendants.
Before the evening conference began Stanley Senanayake’s father-in-law Mr. Kularatne had been summoned from Ambalangoda to Colomboby his daughter ; he had spoken to Stanley Senanayake and his brotherLionel Senanayake ; and he had gone to the Orient Club and spoken toAbeykoon. We have no doubt that Kularatne was informed by bothLionel and Stanley Senanayake that 4th defendant and others hadplanned to overthrow the Government that night, and that he conveyedthis information to Abeykoon at about 5 p.m. Stanley Senanayake wassent for and questioned by Abeykoon but gave him no information.This is their version of those events. The 4th defendant’s version isbriefly that Stanley Senanayake came to him at about 5.30 p.m. andtold him (1) that he (Stanley) had mentioned to his wife about somedanger and trouble in the Colombo division, that thereafter LionelSenanayake and Kularatne came to Stanley Senanayake’s house, and thatafter asking him if the Inspector- General of Police knew about it Kularatnewent to inform Abeykoon ; (2) that the Inspector-General of Police hadsent for Stanley Senanayake to the Orient Club and asked him what thetrouble was going to be in Colombo that night, and Stanley Senanayakehad informed him that they were only getting ready to carry out theorders that I. G. P. had already given Stanley Senanayake and 4thdefendant; (3) that the I. G. P. then told Stanley Senanayake that hewould get the D. I. G., C. I. D. to check on that, and agreed to StanleySenanayake going to inform 4th defendant of what had happened, andalso told Stanley Senanayake to tell 4th defendant that he was askingthe D. I. G., C. I. D. to check “ on certain matters ”; (4) that StanleySenanayake assured 4th defendant that he had not divulged anythingto his wife or to Kularatne.
4th defendant said that he told Stanley Senanayake to go to theconference. He then informed 3rd defendant at about 5.45 p.m. ofwhat Stanley Senanayake had told him, and promised to take Stanleyto him at 8 p.m. He also telephoned Abeykoon who said that there wasnothing to worry about and that he would be playing bridge. While4th defendant has said that he was not worried or suspicious after StanleySenanayake had spoken to him, 3rd defendant has said that he was anxiousto meet Stanley Senanayake in case there had been a security leak;that is why 4th defendant agreed to bring Stanley Senanayake to himat 7.30 p.m.
According to 3rd defendant, 4th defendant also informed him at5.45 p.m. that Mr. Bandaranaike and Mr. Dias and TJdugama were outof Colombo; that the D. I. G., C. I. D. was playing golf; and that RajanKadirgamar was being trailed.
On the 27th morning, according to 3rd defendant, he met 2nd defendantat the Ceylon Volunteer Force Headquarters and they decided to warnas many Army officers as possible about unusual orders and to ask themto inform 2nd defendant and 3rd defendant if they received any suchorders. 3rd defendant has said that his intention was to give the officers,whom he was going to enlist in his plan, orders and rely on them tomaintain seciecy. They also decided that Queen’s House was a vitalpoint as Mr. Bandaranaike may take action against the Governor-General,and so they decided to warn 7th defendant, whose Regiment was onguard duty there, to strengthen the guard. When they were discussingwhere they should meet the Army officers, 15th defendant telephoned2nd defendant; this gave 3rd defendant the idea of 15th defendant’shouse as the meeting place, so he telephoned 15th defendant and told himthat 2nd defendant, 3rd defendant and a few officers would come to hishouse at about 7 p.m.
3rd defendant also said that about 12.30 p.m. Rajapakse telephonedto him and mentioned that the Armoured Corps was going to the Port,and 3rd defendant then told him to come to 15th defendant’s house at7 p.m. and agreed (when Rajapakse suggested it) to 14 th defendant alsobeing .brought there.
» 3rd defendant admitted that he telephoned most of the Army officersand asked them to come to 15th defendant’s house, and that he also asked7th defendant to bring 8th, 9th, 10th, 11th and 12th defendants (whowere all in 7th defendant’s Regiment) with him. 3rd defendant admittedthat he probably told Ebert to issue the Stirling guns if Abeysinghe hadtold him to do so, but he denied that the issue was connected with the plan.
3rd defendant has said that 4th defendant, at 5.45 p.m. informed himof the absence of Mr. Bandaranaike, Mr. Dias and Udugama fromColombo. Why was the meeting of officers arranged for 7 plm. considerednecessary in the circumstances ? It had been summoned without theknowledge of the Army Commander, and in Rajapakse’s case withoutthe knowledge even of his Commanding Officer. 3rd defendant admittedthat he had no information that anything was likely to happen on the27th night. It is rather surprising that, if his motive in getting theseofficers to 15th defendant’s house was to thwart a possible move byMr. Bandaranaike, he should have persisted in holding the meeting in theabsence of such information.
There were admittedly five Commanding officers at the meeting—7thdefendant, 13th defendant, 15th defendant, Abeysinghe and Alwis.3rd defendant admitted that 2nd defendant and 8th defendant were alsothere. He said that he could not remember if 9th defendant, 10thdefendant, 11th defendant and 12th defendant were there. Abeysinghesaid that he saw 10th defendant either in the house or on the road opposite,and also, 9th, 13th, 14th and 15th defendants and Rajapakse. Rajapaksehas said that 6th defendant (whose presence Abeysinghe, de Alwis,and 3rd defendant have denied) was also there, as well as 11th and 12th
defendants. The meeting appears to have been a very brief one. Thismay well have been due to 3rd defendant being disturbed by certaininformation which 4th defendant said he had heard from StanleySenanayake, and which (from whatever source he obtaineH it) he wouldsurely have conveyed to 3rd defendant. It was the information thatthe D. I. G-, C. I. D. and the S. P., C. I. D. had been seen going to StanleySenanayake’s house in search of Senanayake.
3rd defendant asked those who were there to come to Kinross Avenueat 8.30 p.m. 7th and 8th defendants who informed him that a wirelessexercise had been arranged for that night were told that their attendancewas essential—even if it meant cancelling the exercise.
At about- 6.30 p.m. 4th defendant went to S. P. Colombo’s office for theconference. He said Stanley Senanayake told him there (1) that hiswife informed him that S. A. Dissanayake and John Attygalle had comein search of him to his house, and (2) that Mr. N. Q. Dias was in Madampe.Senanayake then asked to be excused from attending the Conference ashe had a headache. No suggestion of a headache having been mentionedby Senanayake was put to him in cross-examination. We have alreadydealt in some detail with the incidents that led up to Senanayake leavingthe conference before it began. Even on 4th defendant’s evidence,Stanley Senanayake, who he believed to be a willing participant in theplan to foil Mr. BandaranaiLe, was wilfully prevented from meeting theC. I. D. officers. The explanation is obvious. The information conveyed -by Kularatne to Abeykoon, which had stemmed from Stanley Senanayake,must not be examined by the C. I. D. questioning the informant. 4thdefendant’s evidence that he was neither worried nor suspicious afterStanley Senanayake’s disclosures to him at 5.30 p.m. cannot be accepted.
As to the business conducted at the conference, 4th defendant gaveinstructions to various officers there, and these details appear elsewherein this judgment. Even in his own evidence he does not claim that hesaid a word about arrests of Leftists, or any other persons whose namesare said to have been in the list alleged to have been given to him byAbeykoon. Nor could he have dealt with the arresting of the personsnamed in the alleged list given to him, since he said that he left that listin a cabinet in his office. Yet he would have us believe that the arrestof Leftists and trouble makers in Colombo was at least one of the matterswhich had to be gone into, as indeed it was gone into at the morningconference.
The orders given by 4th defendant are more or less common groundbetween him and the prosecution witnesses. 4th defendant said thathe did not know who was to make particular arrests, and that it wasStanley Senanayake’s job to give those orders. But if, as he claimed,he attended the conference in order to see if Senanayake and his officerswere carrying out Abeykoon’s alleged instructions, it is surprising that
he omitted to take the alleged list with him to the conference, and thathe made no inquiries as to whether any arrangements had been made toeffect any arrests of Leftists.
It is quite clear that this conference, unlike the morning conference,had notliing to do with arrests of Leftists. It was purely a briefing ofgazetted officers who were to station themselves at certain strategic pointsand await further orders from whoever was to seize control at Policeand Army Headquarters. The details of the briefing appear earlier inthis judgment. 4th defendant pretended that Stanley Senanayake hadtold him earlier that he had given all these officers the same orders,(except Dedigama, Mendis and Dole) but no such suggestion was madeto Stanley Senanayake in cross-examination.
4th defendant could hardly have meant to include 18th defendantand Vandendriesen in that statement, since all they were told by 4thdefendant at the conference was to go to his house and play bridge.19th defendant was also summoned, apparently, for this same purposeto his house. A similar matter which involved Stanley Senanayake,but which he had no opportunity of refuting, was 4th defendant’s evidencethat Stanley Senanayake had been following Mr. Dias’s movements, andth§ft at lunch time he informed 4th defendant that Mr. Dias had gone to‘ Matugama* and that at the evening conference or at Johnpulle’s househe informed 4th defendant that Mr. Dias was at Madampe. It is difficultin any case to understand why, if Stanley Senanayake had agreed tofollow Mr. Dias’s movements, it should have been necessary for 4thdefendant to ask the 19th defendant to telephone first Rosemalecocqand then Brother, in order that they may ascertain the whereabouts ofMr. Dias and convey their information to Stanley Senanayake. We candiscern many instances which disclose a calculated but unsuccessfulattempt on the part Of 3rd' uvf^.Jant and 4th defendant to involveStanley Senanayake as a co-conspirator with them.
Both the 3rd and 4th defendants have denied the truth of StanleySenanayake’s evidence that he was taken by the 4th defendant on thenight of the 27th January to a house in Frances Road, WeUawatte, andthat he saw in the garden of that house the 2nd, 3rd, 5th and 6thDefendants. It is common ground that this visit to Frances Road, ifmade at all, could only have taken place between 8.15 and 8.50 p.m.The defence have relied on what can be called evidence of an alibi toshow that the 3rd defendant and the 4th defendant were during thisrelevant period at “ Homelea”, Alexandra Place, the residence of the3rd defendant, and that Stanley Senanayake was taken there and not toFrances Road.
The 3rd defendant’s evidence was that on the morning of the 27thhe* arranged for the 4th defendant to meet him at “ Homelea ” at 7 45p.m. that evening. In fact the 4th defendant came before that time(about 6 p.m.) to discuss the development that the Inspector-General
had questioned Stanley Senanayake at the Orient Club. At this dis-cussion, the 4th defendant agreed to bring Senanayake to “ Homelea ”between 7.30 and 7.45. The 4th defendant, however, stated that thetime fixed was 8 p.m.
According to the 3rd defendant, at one stage of his evidence, the 4thdefendant and Senanayake did come to “Homelea” about 8 p.m., butunder cross-examination he said the meeting there with Senanayakeand the 4th defendant was between 8.30 and 9 p.m. When StanleySenanayake was being cross-examined by Mr. Ponnambalam, thequestions he was asked about this alleged visit to “ Homelea ” and hisanswers were :
Q. Do you know " Homelea ”, Alexandra Place ?
A. No.
Q. You have never been there, neither on the 27th nor before that i
A. I have been to the house in Alexandra Place where his brotherKoo de Saram stayed about 20 years ago.
Q. The day preceding the 27th ?
A. No.
The 3rd defendant’s position is that he never instructed his Counselthat Stanley Senanayake came there on the 26th. = The cross-examinationdoes not suggest to Senanayake the defence position that he was at“ Homelea ” on the 27th night along with the 3rd defendant and the4th defendant. Mr. Ponnambalam explained that once Senanayakedenied that he went to “ Homelea ” on the 27th or the day precedingit, there was no need to pursue the cross-examination further. But ifat that stage of the trial the defence was relying on a visit of the 4thdefendant and Senanayake to ” Homelea ” on the 27th night in orderto disprove Senanayake’s version of a visit to Frances Road at aooufthe same time, we can think of more pointed questions which mighthave been put to Senanayake.
According to many officers who attended the evening conferenceat the S. P. Colombo’s office, that conference ended about 7 o’clock.Assistant Superintendent of Police Dole, whose recollection was assistedby entries he made after the conference in books of the Slave IslandPolice Station, said that he left the conference at 7.05 p.m., and thatthe 4th defendant left before him. Assistant Superintendent of PoliceDedigama confirmed that he and Dole were the last to leave. It wasonly natural that one or two junior officers who were present when theconference ended should have remained until the Deputy Inspector-General left the premises.
The 4th defendant was next seen by other witnesses at a time whichis fixed at shortly before 8 p.m., by evidence to which we shall immediatelyrefer. Thus Johnpulle was seen at the Officers’ Mess after 7.30; from
6—U 7431 (7/65)
there he dropped in to speak to Mrs. Senanayako at her house and thenreturned to his own house; the 4th defendant came to that house alittle while thereafter. Assistant Superintendent of Police Samaraweerawent to the Mess about 7.30 p.m., and he had a drink after that withDedigam a ; he saw Johnpulle in the Mess at that time. Samaraweeraalso ordered a drink for the 19th defendant, who was thus at the Messafter 7.30. According to the 19th defendant, he left the Mess becausehe received a telephone call from the 4th defendant telling him to cometo the latter’s house. (This telephone call the 4th defendant made fromthe 19th defendant’s house.) The 19th defendant then went to the4th defendant’s house, and the 4th defendant arrived at the house alittle later. The 4th defendant walked next door to Johnpulle’s houseand from there Vandendriesen made the “ Walker ” call to Mr. Bandara-naike. Both Mr. Bandaranaike and the 4th defendant said that thiscall was made about 8 o'clock.
If, as the 3rd and 4th defendants state, it had been arranged for thelatter to take Senanayake to “ Homelea ” between 7.30 and 7.45 p.m.,that appointment could have been punctually kept. All that the 4thdefendant says he did after the evening conference was to. pick upInspector Srichandra on his way home at the 19th defendant’s house inMacarthy Road. The 4th defendant’s version of his movements aftertjie conference leaves unaccounted for a period of half an hour diningwhich he could not have dallied on the road. If his version is correct,he should have reached his home not later than 7.30 p.m. The fact thathe arrived home only at nearly 8 p.m. proves that he must have stoppedelsewhere in the interval.
Dr. Sproule, who also resided at “ Homelea ”, testified that the 4thdefendant came there with some unrecognised person between 7.45 and* 3^ While we do not reject his evidence of such a visit, his fixationof the time of the visit was not definite and does not establish that thevisit took place after 7.45 p.m. Having regard to the time gap in the4th defendant’s account of his movements, the defence did not satisfyus that this visit to “ Homelea ” took place after, and not before 8 p.m.Moreover, as we shall presently show, we are satisfied of the inherent.truth of Stanley Senanayake’s evidence that when he was taken fromthe 4th defendant's house after 8 p.m., he was in fact taken to 14,Frances Road, and not to “ Homelea.”
The theory of the defence was that Stanley Senanayake either ofhis own accord or at someone’s instigation concealed an actual visitwith the 4th defendant to “ Homelea ” between 8.15 and 9 p.m. andsubstituted for it a visit to Frances Road at that time. A close exami-nation of the circumstances in which such a concealment and sub-stitution could possibly have been devised demonstrates how unwarrantedthe theory is. Since it is common ground that Senanayake did meetthe 3rd defendant before 9 p.m. on the 27th, Senanayake must un-doubtedly have mentioned such a meeting when questioned at Temple
Trees, and if the meeting actually took place at “ Homelea ”, he mustundoubtedly have mentioned that meeting place. One cannot imagineany reason why he should of his own accord have thought of falselychanging the true venue of the meeting ; what would have been importantto his mind when questioned was the fact of the meeting between himselfand the 3rd and 4ch defendants, and not the venue. We must thereforeassume that he first mentioned what was according to the defence theactual fact of a meeting between these three persons at “ Homelea”.If then there was fabrication, the fabrication took place after the actualfacts had been correctly stated by Senanayake.
If there was “ inducement ”, Senanayake was induced to make falsestatements on two matters—the presence of the 2nd, 5th and 6th defend-ants at the meeting, and the change of venue from “ Homelea ” toFrances Road. Even if we assume that someone induced the addition ofthree names, it is quite impossible to understand why anyone shouldhave thought of changing the actual venue to a fictitious one. IfSenanayake spoke of a meeting at “ Homelea ”, it would have beenquite simple to induce him (if indeed he was thus amenable) to add threenames of persons present ft “ Homelea ”, But it was quite absurdand foolish to induce him to state falsely that the meeting took placeelsewhere. The suggested false venue was the house of the brother ofthe Commandant of the Volunteer Force and not some village hut. Todeliberately suggest such a false venue was tojnin the risk that somevisitor to that house, whose word would not be ordinarily doubted,might have contradicted Senanayake’s statement about a meeting there.In other words, this suggestion could only have been made at the riskof destroying the worth of Senanayake’s true evidence of the importantfact of the meeting itself. When the Court inquired from Mr. Ponnam-balam why any investigator should have made such a suggestion in theearly hours of the 28th January at Temple Trees, Mr. Ponnambalamexplained that perhaps the investigator thought that, because somenames of persons at the meeting were being falsely added, Dr. Sproulemight come forward to contradict the list of names given by Senanayake.This explanation involves knowledge on the part of the investigator(at about dawn of the 28th) that Dr. Sproule lived at “ Homelea ”, thathe intended to go on a shoot early that very morning, and that he wasactually at home about 8.30 p.m. on the 27th and saw the 4th defendantarrive there. We ourselves can think of no explanation less fantasticthan that given by Mr. Ponnambalam as to the reason why anyoneshould have even thought of changing a true statement of the venueof the meeting into a false one.
We pass now to consider the defence allegation that Senanayake wasinduced to state falsely that when he met the 3rd defendant on the nightof the 27th, there were present also the 2nd, 5th and 6th Defendants.These three persons were not insignificant villagers who might haveexperienced difficulties in establishing alibis for 8.30 p.m. on a Saturdaynight. They were respectively Colonel de Mel, Commandant of the

Volunteer Force, Sidney Soyza a former Deputy Inspector-General ofPolice, and Admiral de Mel former Navy Commander. For all thatSenanayake knew, for all that any investigator at Temple Trees knew,Colonel de Mel might have been on this particular night the dinnerguest or the dinner host of someone of impeccable trustworthiness.Any one of these three gentlemen might have been in fact at somecinema or hotel and seen there by many persons whoso word would havecounted more than that of Senanayake. If in fact, as the defencetheory necessarily implies, Senanayake spoke only of a meeting with the3rd defendant at the latter’s house, his statement furnished the firstand very valuable evidence of some conspiracy between the alreadyarrested 4th defendant and a senior Army officer. It would have beenin our opinion ludicrous to induce Senanayake to change his true versionof this meeting with false additions and particulars which could easilyhave been refuted by reliable witnesses. We have to keep in mind thaton the defence theory itself the persons who might have thus inducedSenanayake were all men with either legal or Police experience. Wecannot countenance the possibility that any such person would havebeen so foolish as to run the risk of jettisoning the first available evidence• of Army, involvement with the senior Police officer who had alreadybeen arrested.
4*
We have dwelt at length on the evidence concerning the allegedmeeting at Frances Road because it is important to state the reasonswhy we believe the evidence of Stanley Senanayake about that meetingand about the persons who were present. But we must add that thiswas only one of the many instances in which the defence invited us tothink that witnesses who made statements at Temple Trees had beeninduced by the officers of the C. I. D. to falsely implicate one or theother of the defendants. The total failure of the defence to substantiatethe allegations of “ inducement ” levelled in connection with Senanayake'sevidence of this meeting at Frances Road, and our exhaustive consi-deration of the defence suggestions with regard to that evidence, relievesus of the need to burden this Order by stating meticulously, in connectionwith every other suggestion of “ inducement ” in other contexts,our reasons for rejecting such suggestions. In almost all these othercontexts, the suggestion of fabrication has been made against officersof the C. I. D., and those allegations have naturally been reported in thePress. It is only fair for us to state that all there has been is thesuggestion of fabrication, unsupported by evidence ; that the C. I. D.officers who gave evidence before us impressed us as being men whoperformed their duties of investigation in the normal way; that AssistantSuperintendent of Police Tyrell Gunatilleke in particular, against whomagain and again the defence made suggestions of fabrication, struck usas being just a perfectly efficient Police officer making investigationsin a manner which a court would expect of him.
We hold on this evidence that the 4th defendant did take Senanayaketo Frances Road, and not to Alexandra Place, after 8 p.m., and thatthe 2nd, 3rd, 5th and 6th defendants were present on that occasion atNo. 14, Frances Road, Wellawatte. If, as Dr. Sproule says, the 4thdefendant and someone else visited “ Homelea ”, we hold that the visitmust have been before, and not after, 8 o’clock.
At about 8 p.m. 4th defendant admittedly directed Vandendriesento make a telephone call to Mr. Bandaranaike in order to make surethat Mr. Bandaranaike was in his house ; but 4th defendant deniedthat he had a telephone conversation with 5th defendant at about thattime. We have held that 4th defendant then took Stanley Senanayaketo 14, Frances Road, Wellawatte, where 2nd, 3rd, 5th, and 6th defendantshad already assembled. Stanley Senanayake declined, when it wassuggested to him, to go to the D.I.G., C.I.D. and deny the whole thing.They dispersed after agreeing to meet there again at 10.30 p.m. Thismeeting has been denied by 3rd defendant and 4th defendant but wereject their denials. From Frances Road, 4th defendant and StanleySenanayake returned to 4th defendant’s house about 9 p.m., while 2nddefendant and 3rd defendant are next seen at Kinross Avenue. Themeeting there had been fixed for 8.30 p.m. but it was after 9 p.m. when3rd defendant arrived there, as he himself admitted, and he said that themeeting lasted about half an hour. His and 2nd defendant’s arrivalafter 9 p.m . is not surprising as they were at Frances Road till nearly9 p.m.
There were present at Kinross Avenue all the Military officers whohad assembled at Elibank Road. 6th defendant was absent. 3rddefendant accepted Rajapakse’s evidence about those who gatheredthere as correct, except that he did not recollect having seen 10thdefendant there. 10th defendant in his statement has admitted hispresence there. 3rd defendant’s evidence is that he addressed the officersassembled there. He told them his fears, regarding Mr. Bandaranaiketrying to seize power; that he would probably attempt it by arrestingthe Leftist leaders under pretext of stopping the general strike, andseizing the opportunity to arrest the Opposition leaders at the same time ;his earlier intelligence was that it was likely to happen about midnight,but his later intelligence was that it was highly unlikely to happen that- night; his intention was to go to the Governor-General as soon as he hadreliable information of Mr. Bandaranaike moving, and the Army Comman-der would be brought in at the correct moment; he warned themabout unusual orders and asked them to inform him if they receivedany ; if they had to perform any tasks, the necessary orders would begiven at an ‘ 0 ’ group meeting which would be only after he met theGovernor-General.
3rd defendant has admitted that he mentioned certain matters ingreater detail. He told 7th defendant that a possible task for his unitwas to protect Queen’s House as it was a vital matter. He asked 15th
%
defendant how the C.T.O. could be immobilized, but 15th defendantdid not answer, and 13th defendant then said that it could be done bytechnical men in a matter of minutes ; 3rd defendant explained that hisidea in putting this question was to deprive Mr. Bandaranaike of theuse of any Force. He discussed with 2nd defendant or Alwis the needto send Alwis to watch the telephones at Army Headquarters. Hetold them that the Code word “ Holdfast ” would be used to prefaceorders, and the Pass word would be “ Yatbura.” They were all toldto be at the end of a telephone, as he thought orders might have tobe given that night.
3rd defendant said that he did most of the talking, while 2nd defend*ant answered questions. He denied that any directions were givenwith regard to sealing off newspaper offices, or that any actual taskwas given to anybody, or that anybody was asked to sleep at ArmyHeadquarters. Under cross-examination 3rd defendant said that hedid tell 13th defendant about the C.T.O. and 7th defendant about theguard being doubled at Queen’s House, but he gave no other ordersto anybody there.
Under cross-examination Abeysinghe stated that no specific task, wasallotted to anybody that night, but there were talks of assignments.Then followed these questions and answers :—
Qa There were talks of the possibility of what may have to be doneupon an eventuality ?
A. Yes.
Q. And the eventuality being %
A. The impression I got at that stage was that the Governor-Generalwas going to take over the country.
Q. Wasn’t there a discussion of the possibility of this group having
to counter any move ?
A. Possibly by Mr. Felix Dias Bandaranaike.
Q. So, it would be correct to say that the position was discussed inthe context of Mr. Felix Dias Bandaranaike attempting to takeover ?
A. Yes.
Abeysinghe has admitted that, until he gave evidence, he had notmentioned that 3rd defendant said he was anticipating something in thenature of a coup by Mr. Bandaranaike, or that he was apprehensiveabout it. We do not believe him when he says that 3rd defendant talkedat Kinross Avenue about the possibility of Mr. Bandaranaike takingover the country.
As Abeysinghe gave certain evidence which indicated that he wasto some extent hostile to the prosecution, the prosecution was allowedto put a certain passage from his statement of 28th January, 1962, to
him. The first passage was put after he denied that he had spokenabout a coup, and reads : “ About 4 days ago, Col. de Mel rang me upand asked me to come and see him. He spoke to me and said that theywere planning a coup and it was coming from the top and the impressionI go -, was that it had originated from Queen’s House and that the Generalcould be brought into it at the last moment.” Abeysingho denied thathe mentioned the word f‘ coup ” at all in his statements. This passagewas marked PI 58. Abeysinghe also said in evidence that on 23rd or24th January he was sent for by 2nd defendant, and both 2nd defendantand 3rd defendant spoke to him : that in the course of a long conver-sation 3rd defendant said that “ he had grave fears that Mr. Bandara-naike would take over the country in case it was paralysed and every-thing came to a standstill; and he appeared to be very worried aboutthis and he said in that case he would leave no stone unturned to doeverything possible to stop it, but in the first instance he would see theGovernor-General, and that any action he takes would have the approvalof the Governor-General.” He admitted that he had never made thisstatement before he made it in evidence. Abeysinghe further said inevidence that at Kinross Avenue 3rd defendant mentioned that anyaction he was going to take would have the approval of the Governor-.General, who was in sympathy, and also, he thought, the Prime Minister.He admitted that he had never mentioned this fact either before hegave evidence.
His explanation for the omission, which was elicited in cross-examination,was that 3rd defendant told him at Temple Trees on the 28th morning“ Whatever you say, do not disclose that I was after F.D.B. (Felix DiasBandaranaike).” This was said before 3rd defendant or Abeysinghe wasquestioned. 3rd defendant has stated that he did tell Abeysinghe this,as he thought it was unsafe to disclose this intention to Mr. Bandaranaike.Abevsinghe and 3rd defendant interpret these words as referring tosteps to counter a possible coup of Mr. Bandaranaike. If this iscorrect, it does not seem to have struck either of them that by con-cealing the motive for their actions they would be concealing the onlydefence which has been put forward. This warning was, according toboth of them, repeated 10 minutes later by 3rd defendant. Abeysinghesaid that “ through sheer deference ” to 3rd defendant he did not men-tion this topic which 3rd defendant had mentioned in 2nd defendant’soffice. Under further cross-examination Abeysinghe said that he wastold by Mr. Bandaranaike while under interrogation that it had notbeen decided what was to be done with him, and he thought he mightbe locked up at any time ; consequently he was in no mood to tell himthat there had been a plan to counter his attempt to seize power. ButAbeysinghe was taken to Temple Trees that morning, along with 2nddefendant, by General Wijekoon from Army Headquarters. Beforetaking them General Wijekoon said he asked them if they had been ina coup : 2nd defendant then said ** What coup ? ”. Abeysinghe could,if he had thought fit then, have mentioned to the General what he said
in evidence regarding a move to counter a coup by Mr. Bandaranaike,for at that stage 3rd defendant had not warned him against speakingof it. 2nd defendant’s bare question, without any further explanation,is hardly the reply one would have expected from him. He certainlyhad the opportunity, if he wished to seize it of explaining the activitiesof the previous night to his Army Commander.
Under cross-examination Abeysinghe said that he never mentionedthe word “ coup ” in a statement, and we allowed further passagesPI 44 B and P144 C in which he has used that word to be marked byCrown Counsel. His explanation was that the word “ coup ” was usedby the questioner, Mr. Bandaranaike, and he himself did not use theword. But it has to be observed that in his statements he has used theword " coup ” many times, and he has read over and signed hisstatements.
On this question of Mr. Bandaranaike having been suspected ofattempting to stage a coup, we have also the evidence of Alwis whowas at Kinross Avenue. Alwis said that when 3rd defendant camethere after 8.45 p.m. he summoned the others present, and Alwis wenton to say, “ He (3rd defendant) then mentioned something about a coup,and he said'that it was the duty of all right thinking people to stop it; ”also *that “ for some time he had been obtaining some news that FelixDias Bandaranaike was attempting to seize power in the country andthat an attempt would be made by Mr. Bandaranaike to arrest all theopposition leaders and to set himself in complete power.
Q. That is the coup he referred to ?
A. Yes.”
Alwis admitted that he made no mention of this threatened coupby Mr. Bandaranaike in any of his statements. Alwis went on to saythat 3rd defendant spoke about probable tasks, and he remembered areference to telephone exchanges—the C.T.O., the Havelock TownExchange, and probably the Maradana Telephone Exchange. 3rddefendant also had a discussion with 13th defendant as to how long hewould take to disrupt communications at the C.T.O., but Alwis couldnot remember the reply given by Matthysz.
3rd defendant asked Alwis if he would be available to go to ArmyHeadquarters to answer telephones, half an hour after the operationcame into force. The Code words “ Yathura ” and “ Holdfast ” werementioned, the former for anybody who wanted to enter Army Head-quarters. There was a discussion about Lake House and the ‘ Times ’building, but 3rd defendant said something like ‘ Leave those fellowsalone ’. . Alwis said that he got excited as a result of what he had heardat Kinross Avenue, and as a result he forgot to give instructions to themen who had been ordered to stand by since that afternoon.
Alwis also, like Abeysinghe, struck us as being a witness who wishedto favour the defence, and we permitted Crown Counsel to cross-examinehim about certain statements which he was said to have made at thepreliminary inquiry into these offences. He denied the truth of certainstatements which were put to him, although he had signed the entirestatement at the end, after it was read over. His memory failed himin regard to other passages in that statement. He has admitted thatalthough in evidence he referred to 3rd defendant having stated atKinross Avenue that Mr. Bandaranaike was attempting to seize power inthe country and to arrest all the Opposition leaders, and all right thinkingpeople should do everything possible to stop it, he made no mention ofthis in his statements. It has not been suggested, as a reason for theomission, that he was asked by anybody to conceal that matter from theinterrogators.
What Abeysinghe or Alwis said in their statements before this trialbegan is not, of course, evidence that can be used to prove the truth ofwhat was there stated. But the portions of those statements whichcontradict what they said in evidence at the trial give an indication ofthe value to be placed on their evidence.
We are satisfied that, like Abeysinghe, de Alwis has also gone out ofhis way falsely to give this evidence, about 3rd defendant referring toMr. Bandaranaike planning a coup, in order to assist the defence. He,like 10th defendant, has, falsely said that Major-Caldera induced him tosay that a coup was planned at Kinross Avenue by 3rd defendant if hewanted to be released from Jail. He has sought to go back on his letterof 27th February in which he asked for an opportunity to make a furtherstatement, and his confirmation of that letter before the Advisory -Committee on 1st March.
According to the 3rd defendant, the purpose for which he summonedthe meeting of Army officers at Eli bank Road was to “ alert ” themabout suspicious orders they might receive for troop movements. Thishe did not do at that meeting, because “ the position was then not quitedefinite. ” Later, at Kinross Avenue, he did thus “ alert ” them, and healso conveyed his suspicions of Mr. Bandaranaike. Presumably the 3rddefendant hoped by these means both to prevent the execution of ordersgiven in furtherance of Mr. Bandaranaike’s suspected plot and tobe himself informed of any such orders. But if as the 3rd and 4thdefendants stated, they had on the 26th night confidently expected thatMr. Bandaranaike would “ move ” on the night of the 27th, it was unreason*Able for the 3rd defendant to wait until the evening of the 27th to warnArmy officers. Even at 9.00 p.m. at Kinross Avenue, he did not inquirewhether any special orders had been given to any Regular unit. Untilthat time no watch was kept on the movements of General Wijekoon orCommodore Barker, and the surveillance of their houses had been timedonly for about midnight. The General could well have been present atMr. Bandaranaike’s house about 7.30 p.m. without the 3rd defendant andthe 4th defendant becoming aware of it, just as they did not become
aware of the Inspector-General’s presence at Mr. Bandaranaike’s houseabout that time. According to the 3rd defendant, the only officers whoknew earlier of his suspicions were the 2nd defendant and Col. Abeysinghe.If so, many orders could have been given on the 27th on behalf of Mr.Bandaranaike which may not have come to the knowledge of the 3rddefendant. Had the 3rd defendant in fact suspected Mr. Bandaranaike'sintentions, he would in our opinion have taken more effective measures onthe 27th to ** alert ” (in his own words) officers against suspicious orders.The version of his suspicions is not supported by such action as he actuallytook.
It is clear that the Kinross Avenue meeting was arranged only because(for reasons best known to the 2nd and 3rd defendants) the originalintention to make some disclosure at Elibank Road was not carried out.The Elibank Road meeting had been summoned for 7.00 p.m., while themeeting of Police officers at Echelon Square had been fixed for 6.00 p.m.At Echelon Square, the 4th defendant gave several orders which have beenshown to be quite unconnected with the arrest of Leftists, and to be rathera briefing of officers to restrain Service Commanders and others and tocontrol strategic positions. Doubtless the intended purpose of the ElibankRoad meeting of Army officers was the same : the 3rd defendant we holdintended to brief Army officers in just the same way as the 4th defendantactually briefed Police officers at Echelon Square. The decision of the3rd defendant to delay the briefing intended at Elibank Road, is explainedby the 4th defendant’s evidence that the 3rd defendant became alarmedwhen informed about 5.45 p.m. about the questioning of Stanley Senana-yake by the Inspector-General.
For reasons just stated we reject the 3rd defendant’s version that heintended only to alert Army officers at Elibank Road and that he infact only alerted those officers at Kinross Avenue.
After leaving Kinross Avenue in Alwis’ car with 2nd defendant, 3rddefendant said he stopped at Havelock Town Post Office from where hetelephoned to 4th defendant at about 10.00 p.m. 4th defendant informedhim that the Navy, Army and Air Force Commanders were at TempleTrees. They both ruled out, as a result of this information, the possibilityof Mr. Bandaranaike issuing any orders that night in pursuance of hisplans.
4th defendant in his evidence said that before 3rd defendant telephonedhim he had been informed by Johnpulle, between 9.30 and 10.00 p.m.,that Raj an Kadirgamar had gone to Temple Trees, and when hetelephoned Temple Trees he ascertained that the Prime Minister,Mr. Bandaranaike, Inspector-General of Police, D.I.G. C.I.D. and S.P.
I.D., Army Commander and Navy Commander were all there. Heconveyed this information to 3rd defendant. It was soon after this,about 10.15 p.m. according to 4th defendant, that Johnpulle informed
him (1) that the Inspector-General had inquired from Inspector Imbul-deniya whether there were motor cyclists at the Traffic station and orderedthem to be sent away (2) that the Inspector-General had sent a specialmessage to all Police Officers.
3rd defendant has said that after receiving 4th defendant’s informationhe and 2nd defendant went to the Ceylon Volunteer Force Headquarters.Mr. Ponnambalam argued that 3rd defendant and those who are allegedto have planned to overthrow the Government could, if they wanted todo what the Crown suggests, have cordoned off Temple Trees with theService Commanders there. But one answer is that the operation wasnot planned to start at that time but much later. Another answer isthat the presence of the Service Commanders at Temple Tree? must havecaused the alleged conspirators to realise that the plot had been discoveredand action was being taken to thwart it.
We have the evidence of Major Chapman as to what happened after
2nd defendant and 3rd defendant arrived at the Cevlon Volunteer Force
*
Headquarters. Chapman said that they arrived there at about 11 p.m.and 2nd defendant informed Chapman that, as he was not going to thePort, Chapman could go home.
Chapman in his evidence explained why he was at the Ceylon VolunteerForce Headquarters that night. He said that 2nd defendant told himthat morning that thefts had been taking place in the Port, and tookhim to task for not visiting the Port frequently. 2nd defendant toldhim to be at Headquarters about 10 p.m. as he intended to visit the Portand take Chapman with him, in order to che:k and supervise what wasgoing on there. Although Chapman arrived at Headquarters at about10 p.m., 2nd defendant did not arrive till about 11 p.m., when he cametogether with 3rd defendant. It seems strange that 2nd defendantshould have chosen that particular night to visit the Port. It is muchmore likely that he asked Chapman to come to Headquarters becausehe intended to use him for some other purpose. There is no reason,otherwise, why he should not have visited the Port with Chapman if thathad been his real intention.
The dismissal of Chapman by 2nd defendant appears to have takenplace at about the time that 4th defendant told A. S. P. Harold Mendisto inform anybody who came to the Depot that nothing was happenfng.It was also about that time that 4th defendant told 19th defendant“You can go home. We are not having any hing tonight ”, and asked-Johnpulle to go and inform Stanley Senanayake and 20th d fendant thattheir men could stand down. 3rd defendant said ihat before he left theCeylon Volunteer Force Headquarters he telephoned Abeysinghe andtold him that the operation was off.
At about 11 p.m. Harold Mendis came to 4th defendant’s house andinformed him that he could not get any men from the Depot becauseKelaart had said that the I. G. P. had ordered that no men should be
released. 4th defendant admittedly ordered Mendis to go back to theDepot, wait there, and ask anybody who came there to go away asnothing was happening. 4th defendant said that he then went to sleep.
At the Ceylon Volunteer Force Headquarters where 2nd and 3rddefendants were, 3rd defendant said 7th defendant informed him atabout 11 p.m. by telephone that the Army Commander had inquiredabout the trucks moving in Echelon Square and had summoned him toTemple Trees, and he was going there.
2nd and 3rd defendants then went on from the Ceylon Volunteer ForceHeadquarters to the Sinhalese Sports Club, from where 3rd defendantwent later to the Oval.
At midnight, according to 3rd defendant, Rajapaksc telephonedhim to the Oval and informed him that Lieut. Colonel Attygalle wantedhim to send 3 armoured cars to Temple Trees and asked 3rd defendantfor instructions. 3rd defendant said that he told Kajapakse to sendthem and to let him know what happens.
From the Oval, 3rd defendant said he went out for supper with 11thdefendant and 2 others, and he then went home.
At 1.30 a.m. on the 28th, 7th defendant telephoned 3rd defendantagain and informed him that 4th defendant, Stanley Senanayake andJohnpulle had been arrested for attempting to overthrow the Government.3rd defendant said that he telephoned 2nd defendant and informed him,though he had no reason for doing so. He tried to telephone to 4thdefendant but he got no reply. He was alarmed, but he did nothing elsetill 7.30 a.m., when he telephoned to 4th defendant’s house and 4thdefendant’s wife who was in a distressed state informed him that 4thdefendant had been taken away the previous night by Army personnelto Welikade. It did not strike him to go to Temple Trees and informanybody there (as we think he might well have done) what the correctposition was, so as to remove all misunderstanding. He claims to havebeen the leader of t'le movement against Mr. Bandaranaike’s attempt tobecome a dictator. H:e inaction at this stage must have puzzled manyof his followers.
At 9.30 a.m. 3rd defendant received a telephone message that the ArmyCommander wanted to see him, so he went in uniform to the CeylonVolunteer Force Headquarters and from there to Temple Trees.
3rd defendant has supported Abeysinghe’s belated version of what3rd defendant is said to have told him at Temple Trees. 3rd defendanthas said that he gave 2nd defendant also the same instructions thatmorning. We find ourselves unable to accept 3rd defendant’s explanationfor such conduct, which amounted to instigating these two witnesses tosuppress a fact which they must have known was important. Indeed,it is 3rd defendant’s defence that he and 4th defendant conceived theplan which they have spoken to entirely because Mr. Bandaranaike was,in their opinion, likely to attempt to seize power that night. Presumably,they thought they both had reasonable ground for so believing, and also-
justification for so planning. Yet 3rd defendant would have us believethat he told these two officers to say nothing about the motive whichimpelled him, and of which he said they were aware, because he fearedMr. Bandaranaike might even then seize power. And this notwithstand-ing the presence at Temple Trees of the Governor-General, the PrimeMinister, several other Ministers, and the Service Chiefs and severalofficers of the Army, Police and other branches. The only person to whom3rd defendant says he mentioned this matter was his leading Counselwhen he first met him. He did not say he even told his Proctor,Mr. Gunasekera, though the latter said that he did so on 13th March.In the result, Mr. Gunasekara’s evidence about this alleged statement hasnot been supported by the evidence of 3rd defendant, and that is the onlycomment we need make. We do not believe that even 3rd defendantcould have suspected Mr. Bandaranaike of being likely to act in sucha desperate manner at that stage, especially as he has said that he feltthe Prime Minister would not be a party to what Mr. Bandaranaike wasafter. 3rd defendant has, moreover, said under cross-examination thatafter the meeting at Kinross Avenue he and 4th defendant had workedout that the chances of a coup by Mr. Bandaranaike occurring that nightwere nil. He gave as his reason that the Prime Minister was in Colomboand so were the Service Commanders, and in these circumstances, theycould not visualise Mr. Bandaranaike acting. How could he then havethought that Mr. Bandaranaike might seize power when they were allgathered at Temple Trees ? . In 3rd defendant’s statement there is thesame significant omission which is so noticeable in the statements ofde Alwis and Abeysinghe. It is not only this matter which has beenomitted. 3rd defendant also omitted to mention the meetings he had withofficers at Elibank Road and Kinross Avenue. But it seems to us that, ifthe words “ whatever you say, do not disclose that I was after F. D. B.*'were used in fact, they must have referred to the avowed intention of 3rddefendant to arrest Mr. Bandaranaike. 3rd defendant and Abeysinghedo not say that this intended arrest was disclosed to Abeysinghe, but wedoubt whether this step was concealed, as 3rd defendant has tried tomake out, since it was the first step to be taken in the counter-action,according to 3rd defendant. We find it difficult to believe that 3rddefendant would have thought it necessary to conceal his intended arrestof Mr. Bandaranaike, if he saw no reason to hide the alleged counter-planto thwart Mr. Bandaranaike.
We have no hesitation in holding that the plan made by 3rd defendantand 4th defendant and others among the defendants was in no wayintended to counter a plan of Mr. Bandaranaike’s but a deliberateagreement to overthrow the established Government.
General Wijekoon’s evidence is important on the question whetherthere was a reasonable suspicion that Mr. Bandaranaike would takeover the Government of the country. Apart from pavement gossip abouttotalitarianism, he said that he did not remember any allegations ofthat sort against Mr. Bandaranaike.
2nd and 3rd defendants are very senior Army officers who, we shouldhave thought, would act circumspectly and with some regard to thenot unusual extravagance of language used on occasions by j>oliticiansand labour leaders. As recently as 12th January 1C62 General Wijekoonhad a conference with Unit Commanders at which 2nd, 3rd, 7th, 13th•defendants and all the Commanding officers in Colombo were present.The General addressed them on the subject of rumours that the Army-officers were planning a coup, and wamtd them to be vary careful inwhat they did and said. He told them that there was no question ofthe Army interfering in the affairs of Government as long as there was aproperly constituted Government, and that as long as he was ArmyCommander he would not allow the Army to do that.
We have elsewhere referred to 3rd defendant’s explanation as towhy ho did not consult General Wijekoon if he had any fears aboutMr. Bandaranaike acting unlawfully. 2nd defendant has not offered anexplanation, but 3rd defendant said in evidence that when he told 2nddefendant about Mr. Bandaranaike’s possible move to seize power,2nd defendant’s immediate reaction was to inform the Army Commander.2nd defendant perhaps realised then, though he unfortunately seemedto change his mind, that it would ruin any Army if orders were givenwithout the knowledge of the Army Commander.
tWe feel surp that if 2nd and 3rd defendants entertained apprehensionson this score, they would have gone first to the Army Commander,but if they were still not satisfied with any steps he took they wouldhave gone to the Prime Minister, since it is not suggested that she wouldhave sympathised with Mr. Bandaranaike in any illegal action he took.They did none of these things, and we are satisfied that they did not doso because they never entertained any fears.
General Wijekoon has said that if 2nd defendant or 3rd defendanthad informed him that they had such fears, the school solution wouldhave been for him to inform the Prime Minister; if he thought that suchfears were absurd, he would have ignored them, or even toldMr. Bandaranaike about the allegation against him. The General’s viewof this matter strikes us as reasonable. We can see no satisfactoryexplanation, from the point of view either of common sense or of Militarydiscipline, of the course which 2nd and 3rd defendants took in the wayof giving orders to Army personnel unknown to the Army Commander.In our view they took advantage of their senior positions in the Armyto subvert some officers who were too junior to question their orders,and to enlist other officers who fell in with their plan, in a treasonable•conspiracy.
Mr. WikramaDayake and Mr. Ponnambalam addressed us on thematters which led 3rd and 4th defendants to have a belief thatMr. Bandaranaike would seize power in an illegal way. They weremainly—
The part played by Mr. Bandaranaike in terminating the Satya-graha movement in the Korthem province in April 1961. 4th defendantclaimed that Mr. Bandaranaike wanted him to give Arndt an order to
use force on the Satvagrahis, but he refused. Undoubtedly the positionin the North at that time was grave, and that is why a state,of Emergencywas declared. We do not see anything objectionable in a lawful attemptto restore order, and we do not think anything unlawful was attemptedby Mr. Bandaranaike. Operation Show-down was brought into operationfor this purpose and it proved effective. It was an operation drawnup by the Security and Defence Committee, and not an operationplanned by Mr. Bandaranaike alone.
The part played by Mr. Bandaranaike in having an Appreciation(P 123) of October 1961 worked out by the Service Commanders ondata supplied by Mr. Bandaranaike. It is absurd to suggest that thisplan for the maintenance of public security and essential services was astep taken on the path to dictatorship. 3rd defendant apparentlywondered why a total breakdown of these services was feared. Hisoptimism seems to have been unjustified, to judge by what happeneda few months later, when a wave of strikes overtook the country.
A second Appreciation was drawn up by the Service Commandersand the I. G. P. on 12th December 1961 (P 123a). At that date theC. T. B. employees had been on strike for 3 days. It was feared thatthe Oil Company employees may strike, Railway and Harbour workerswere being incited to strike, a general strike of estate workers couldnot be^ discounted, and a disruption of vital services _was possible. Theseare some of the matters referred to in that Appreciation. We areunable to see that any inference can be drawn against Mr. Bandaranaikefrom the fact that he obtained an Appreciation at this time. He deservescommendation and not criticism for having asked the Service Commandersto prepare for any eventuality. It is fantastic to argue that by beingenergetic and farsighted ho was creating a reasonable apprehension ofwanting to become a dictator.
' He did seem to make a bold claim when he said in evidence that henever uttered a falsehood in his life. He could hardly have meantwhat he eaid. For instance, he played a greater part in giving instruc-tions to the Service Commanders, for the making of plans to deal withpossible emergencies, than he seemed willing to admit. He played aprominent part in the drafting of Operation Showdown, according toGeneral Wijekoon, though he was not willing to admit it. He couldhardly have failed to hear of the Security and Defence Committee froma very early stage of his career as Parliamentary Secretary, but at thecommencement of his evidence he was not prepared even to say thathe had heard such a name. In drafting the White Paper (4D5) he madea few errors which have been referred to in +he course of his cross-examination.
It must have often happened that the Prime Minister consulted himas to how to deal with different situations that arose during the troubledyear 1961. We do not think that he made decisions for her, or thathe had any intention of ousting her and becoming a dictator. It is
only too easy to charge anybody who is in a position of power with wantingto ‘become a tyrant. And if the Prime Minister did consult him, itonly means that she had confidence in his ability as an adviser.
A speech made by Mr. Bandaranaike in December 1961 aboutthe C. T, B. Strike. 3rd defendant thought that it undermined theprevious strong position in which the Government stood in relationto the strikers. He has failed to realise that the Government showedno disapproval of that speech, and in fact the offending Circular issuedby the Board was withdrawn—obviously with the approval of theGovernment—because it was thought to have been issued irregularly.It may have caused the strikes which followed, but we do not see howMr. Bandaranaike can be suspected, over this sequel, of wanting tobecome a dictator. By some curious reasoning, 3rd defendant seemedto arrive at the conclusion that Mr. Bandaranaike, who had the Apprecia-tion prepared in October 1961, deliberately brought about the strikesituation in December 1961 to serve his own purpose.
Speeches made in Parliament and elsewhere that Mr. Bandaranaikewas trying to seize power. A belief in the truth and reasonablenessof all charges made by politicians and others against those whom theydislike indicates an unduly credulous nature, which we should hardlyhave thought to be a trait of senior officers like 3rd defendant and 4thdefendant. Mr. Ponnambalam even argued that these speeches showedthat the Prime Minister was a prisoner of, and helpless against,Mr. Bandaranaike. We do not believe that either 3rd defendant or 4thdefendant was so childish as to attach importance to these speeches.Nor do we accept Mr. Ponnambalam’s other novel theory that politiciansdo not make reckless charges.
Additional incidents in Mr. Bandaranaike’s official acts which Mr.Wilcramanayake pointed to, as showing his desire to set like a dictator,were:—
The search of ships of the Ceylon Navy for smuggled goods, despite
4th defendant’s opposition which was over-ruled by Mr.Bandara-naike. If smuggling was suspected, a search made as quicklyas possible is not unreasonable.
An address given by Mr. Bandaranaike at the Police Training
School which 4th defendant disapproved of as being conduciveto indiscipline. This is a matter of opinion, and there maybe two opinions as to the desirability of such an address.
Mr. Bandaranaike’s dress on the occasion of a Police Mess dinner
which the Governor-General attended, and his late arrivalat the dinner. These are matters of taste and etiquette. Ifthe senior Police officers thought that Mr. Bandaranaike hadoffended against their traditions, they had the remedy intheir hands: if they refrained from inviting him again, hewould soon have got to know where he had erred.
Incidents opposite Temple Trees and at the Airport in which
ladies were concerned. Air. Bandaranaike’s reaction to theprotests which these ladies made and their manner of makingthem was disapproved by 4th defendant. There was alsothe incident when schoolboys staged a protest outside LakeHouse. It may be that Mr. Bandaranaike was hasty in actingagainst those who made such protests, and was inclined to brushaside opposition too readily. Intolerance of opposition isunfortunately not uncommon among the men who hold power,but does not justify the opinion that such men aspire todictatorship.
A speech by Mr. Bandaranaike at the United Nations, when he
is said to have referred to the desirability of a one-party systemof Government. He was quite entitled to express his viewseither abroad or at home, but he said in evidence he was not abeliever in one party Government and that he believed inParliamentary democracy. He made a speech at a meetingof the Ceylon-Soviet Society about “a little bit of totalita-rianism ** possibly being a good thing for Ceylon, if it couldachieve what a totalitarian form of Government achieved forRussia. These are debateable questions of political theory,and it would be an unfortunate state of affairs if anybody wereto be prevented from expressing his views freely on them. Mr.Bandaranaike, like any other citizen, was entitled to do so.Freedom of speech is more than a mere catchword in a democracy.
Neither his speeches in this field, nor his actions to whichwe have referred, could have caused 3rd defendant or 4thdefendant to have a reasonable apprehension that he wantedto be a dictator. They were high-ranking officers and wecredit them with a sounder judgment than they pretend tohave. But if they had any apprehensions on this score, wefeel sure that they would have discussed them with the Governor-General or the Prime Minister or the Army Commander. 3rddefendant said that he and 2nd defendant thought at one timeof going to the Army Commander, but decided against thatcourse. The reasons he gave are entirely groundless. Theirdefence was that they were working together in order to frustrateMr. Bandaranaike. Whether this was their object or whethertheir object was to overthrow the Government, can only bedecided upon a review of all the evidence. But it is certainlyrelevant to consider whether they could have reasonably fearedthat Mr. Bandaranaike’s conduct pointed to his aiming atdictatorship.
Mr. Abeykoon’s evidence was attacked as false in certain respectsby Counsel appearing for the defendants. In some matters he may wellhave failed to remember details correctly and we have had instances
of that. For example, he eaid that the order made on the 27th nightwas merely that Stanley Senanayake should be brought to TempleTrees, and not that he should be arrested and brought. He has beencontradicted on this point by many prosecution witnesses who saidthat the latter order was in fact given. His denial that 19th defendantwas his personal Assistant is less excusable, for he must surely haveremembered the many occasions on which 19th defendant functionedin that capacity and did work which had nothing to do with the workof a Social Secretary. He pretended ignorance of the drafting of theAppreciation by the Service Chiefs and himself in December, 1961,on data supplied by Mr. Bandaranaike, to which General Wijekoonhas spoken.
There were complaints against him that he ordered transfers of Policeofficers on political grounds, and was unduly submissive to Members ofParliament. Whatever the truth of these matters may be, Abeykoon'appeared at times to have acted in such a way as to create thatimpression. Matters came to a head in connection with his treatment ofHeadquarters Inspector Dayaratne of Bandarawela whom he admittedlyordered to come to Colombo immediately merely because the Member ofParliament for Bandarawela had made a complaint against him over thetelephone. Abeykoon gave an assurance through a D.I.G., at a meetingof the Central Welfare Council held on 4th June 1961, after the officers ofthat Range had protested against his action, that if a Member of Parlia-ment complained against a Police Officer inquiries would first be made,and no action would be taken by him unless the allegations were foundto be correct.
The most serious allegation against Abeykoon was that he allowedhis better judgment to be overruled when it came to dealing with memberscf tho Government Parliamentary Group, and the case of Abdul Latiffstrikes us as a particularly bad instance of Abeykoon’s inability to standup to pressure from this direction.
We do not intend to refer to all the documentary evidence produced,but it is apparent that a petition was sent by Abdul Latiff that he hadpaid Rs. 5,500/- to the Member of Parliament for Bandarawela in order toobtain Ceylon citizenship.
Abeykoon as acting Permanent Secretary, Ministry of Defence andExternal Affairs, received the petition. The complaint in it was that,although the petitioner had paid Rs. 5,500/- to this Member of Parliamentwho promised in return to get him citizenship, the petitioner had beenarrested and was awaiting deportation.
On 20.9.62 Abeykoon asked A.S.P. Simon Perera only to examine thebooks at the Avissawella and Belihul-oya Rest Houses. No furtherinquiry was ordered by him. He received the A.S.P’s report on thesebooks and then made the minute “ No useful evidence. May bedeported ”, on 22.9.62.
The same petition came to Abeykoon on 11.10.62, in his capacityas I.G JP-, from the Bribery Commissioner, who expressed the opinion thatit was a. case of cheating and not of bribery. It was suggested to Abey-koon as I.G.P. by one of his junior officers that the complaint should besent to the C.I.D. for investigation, after permission was sought from theSpeaker of the House of Representatives. He then made the minute“ I do not think that any further action is necessary. Papers may befiled, ” on 18.10.62.
The petition of Abdul Latiffwas also sent to Abeykoon by the Attorney-General for report. When a junior officer suggested that it should berent to the Superintendent of Police, Uva for a report, Abeykoon minutedon 24.10.62 “ I do not know why the A.G. has sent this to us for report.Return Mr. Latiff’s complaint to A.G. as foilowe: ‘A copy of this petitionwas sent by me to the Bribery Commissioner for favour of disposal. Hereturned it to me stating that according to the statement made by Mr.Latiff to the Bribery Commissioner it appears to be a case of cheatingand not of bribery. It is difficult for this Department to report onallegations of this type.’ ** A letter dated 1.11.62 was written to theAttorney-General in these terms by Abeykoon.
Th« Attorney-General then asked Abeykoon whether the Police hadrecorded anything in connection with the petition, and asked for acertified copy of the investigation made. When it transpired that noinvestigations had been made, the Attorney-General asked for a carefulinvestigation because serious allegations had been made against theMember of Parliament: he also asked that the statement of the Memberof Parliament should be recorded and sent to him. Abeykoon made aminute dated 22.2.63 which reads :—“ I telephoned to the A.G. himselfre this. No action necessary till he looks into it. ” The reluctance ofAbeykoon to direct his officers to carry out an investigation isastonishing.
On 11.3.63 the Attorney-General, according to the minute in the file,referred to a conversation he had with the I.G.P. and suggested thatfurther action be taken on certain points. One of Abeykoon’s juniorsenquired whether the local Police or the C.I.D. should make this inquiry.Abeykoon then ordered that the file should be sent to the PermanentSecretary, Defence and External Affairs, and his advice obtained as towhether action should be taken as suggested by the Attorney-General.On 5.4.63 Abeykoon received the Permanent Secretary’s reply that the
G.P. should proceed to initiate action as suggested by the Attorney-General.
Mr. Kannangara correctly remarked that the conduct of Abeykoonin this matter showed that he was ready even to flout the instructionsof the Attorney-General. If he has been suspected of acting in thisway because of a burning desire to shield the Member of Parliament,•he has only himself to blame. It is indeed regrettable that he didnot think that as Inspector-General of Police it was his duty to have acomplaint of this nature investigated. What is more, when he wasadvised, by the person most competent to judge, of the desirability ofan investigation, he deliberately obstructed this course. It was dis-quieting to hear that a public officer of Abeykoon's standing gave theimpression that he was influenced, in the exercise of his functions, byconsiderations of political expediency.
Abeykoon was rash enough to say at one stage of his cross-examination,when asked whether he tried to find out the conditions in which thePolice officers were detained, “ To my mind rightly or wrongly they werepeople who were traitors to this country and I cannot take any interest inthem." Then he was asked the question : “ Of course each a thing aspresumption of innocence did not arise at any time as far as you wereconcerned ? ” and he answered: *' I have said so.**
He played a very minor part in the investigations which took placefrom midnight on the 27th January, and was only a sort of figurehead.Mr. Bandaranaike, it is quite clear, directed the investigations. ButAbeykoon has said in evidence in a defamation case brought byMr. Bandaranaike that the investigation was directed by him with theassistance of some senior Police officers. This was incorrect evidencegiven with a view to assist Mr. Bandaranaike. It comes into conflict^ith Mr. Bandaranaike’s evidence, given at this trial, that he was incharge of the investigations at Temple Trees at the request of the Cabinet.We have borne in mind all these blemishes in Abeykoon’s behaviour,when assessing the effect of his evidence.
We have also remembered that Mr. Bandaranaike, who did most of the.questioning of witnesses in the course of the inquiries, was in a sense oneof the aggrieved persons.
We are reluctantly compelled to state our opinion that the independenceand integrity, which should characterise a Police Service functioningunder the Rule of Law, must have been much undermined during Abey-koon’s period of office as Inspector-General. Although he was not ontrial himself, his weak conduct was put in issue quite clearly in thecourse of his cross-examination, and he had ample opportunities toexplain or deny his conduct as Inspector-General.
When considering the evidence of 3rd defendant and the defence hehas put forward, viz. that his plan was only to arrest Mr. Bandaranaikeand Mr. N. Q. Dias in order to thwart a possible coup d’etat by Mr.Bandaranaike, we have also to take into account his statement (P159)made at Temple Trees on the afternoon of 28th January. He hasadmitted that it was a voluntary statement, not influenced by anythreat, inducement or promise by anybody. He has, however, said thatthere are omissions in the recording made by Mr. Selvaratnam becausethe latter could not have kept pace with the rate at which the questionsand answers were spoken.
That part of the statement relating to 3rd defendant’s conduct startswith the following passage: “ I accept full responsibility for all thathappened last night. I would have made the attempt to request theGovernor-General to run the country. My plan was to hand over theGovernment of this country to the Governor-General. He was notinvolved in this. He knew nothing of it. I wanted to get into Queen'sHouse and request him to take over the Government.”
3rd defendant said he was thinking, when he said this, of 4th defendantand Stanley Senanayake who had to arrest Mr. Bandaranaike andMr. N. Q. Dias, and his part in arranging for those arrests. Yet he alsothought, when he said this, that they had been locked up for attemptingto overthrow the Government, and in spite of this he took the responsibility.
He has denied having said (1) that he would have attempted to requestthe Governor-General to run the country, or (2) that his plan was to handover the Government of this country to the Governor-General; he hasalso not admitted that he said (3) that he wanted to request the Governor-General to take over the Government. With regard to the appearanceof these words in the statement, he has only admitted to saying that hewanted to go to the Governor-General and request him to take over ortake charge of the situation, the “ situation ” being the situation which3rd defendant would have created by the arrest of Mr. Bandaranaikeand Mr. N. Q. Dias.
We do not accept this explanation put forward by 3rd defendant.We are satisfied that he did make the three statements which we havequoted and numbered. What is more, there appear later in the state-ment the following sentences: “ Had the arrests ” (which we shallpresently refer to) “ been made successfully it was my intention to makea request to the Governor-General almost immediately to take overthe Government ” and again “ it was intended that after Mr. N. Q. Diasand the x di uauiCntu4j* Secretary were arrested and while the arrests ofthe Leftists was proceeding, a request be made to the Governor-Generalto take over the Government.” It is incredible that Mr. Selvaratnamshould have made all these alleged mistakes of recording on such animportant matter.
Immediately following the passage quoted earlier, there is the followingpassage: “I intended to do certain preliminary things. One of thethings was to apprehend the Parliamentary Secretary, Ministry of Defence& External Affairs and Mr. N. Q. Dias. Mr. N. Q. Dias or the ParliamentarySecretary could issue lawful orders to prevent the plan.” There is herea clear reference back to the word “ plan ” in the earlier passage, andthat passage has explained what the plan was, viz. to hacd over theGovernment- of this country to the Governor-General. 3rd defendant hastried to explain that he could not tell Mr. Bandaranaike that the reasonfor his arrest was that Mr. Bandarana:ke was suspected of trying to seizepower. But what was the reason for giving an untruthful explanation,when in other instances 3rd defendant resorted to the expedient ofdeclining to answer a particular question ?
The statement goes on “ It was not the plan to apprehend the otherMinisters. It was not the plan to arrest the Prime Minister. It washoped that she would acquiesce in the situation. It was not the plan toapprehend aU or any of the Service Chiefs or the Inspector-General ofPolice. It was not the plan to apprehend any of the Government servants,but D.I.G., C.I.D. was considered dangerous to our plan. It was hopedif it was possible to arrest the Leftist and Communist lradera. ByCommunist leaders I mean Dr. N. M. Perera, Bala Tampoe, S. P. Amera-singham, Dr. Colvin R. de Silva. I cannot be sure of the number ofCommunists and Leftists to be arrested. The list of Communists to bearrested was a substantial list. It inclu Jed Philip Gunawardens,Robert Gunawardena and Pieter Keuneman.”
According to this passage, apart from the arrest of Mr. Bandaranaikeand Mr. N. Q. Dias there was contemplated also the arrest of the D.I.G.,C.I.D. and of Leftist and Communist leaders — and all these arrestswere, according to the ordinary meaning of the words used, part of theplan. 3rd defendant has denied in evidence that it was intended toarrest the D.I.G., C.I.D., and the reason given by him was that 4thdefendant said that this officer was not a man who could command anysupport; and it was only necessary to watch his movements.
4*a
With regard to the other arrests of Leftists and Communists, 3rddefendant has said that these arrests were not part of their plan butwere to be made only when an order came from the Government tothat effect — a fact which he has studiously omitted to mention in hisstatement. He has attributed the wording of this part of the statementto bad recording, but this explanation will not account for the particularnames of those to be arrested. If, as 3rd defendant has sxid, he onlymentioned Philip Gunawardena’s name and said “ Yes ” to the othernames that were suggested, why did he say w Yes it ii ne end not knowin fact that those were names appearing in any Government order ?And why did he not say, what he now says, that there was a tentativeproposal known to the I.G.P. which related to the arrest of at least someof these persons, and which he intended to adopt ? Why did he not men-tion that there was a list of Leftists to be arrested which the I.G.P. hadshown 4th defendant and which 4th defendant had shown him ? Ithas nowhere been stated by 3rd defendant or 4th defendant thxt anyaction was taken by either of them to arrest these seven persons throughStanley Senanayake or any other particular Police officers mentioned byname.
The statement proceeds : “ I conceived of this plan about a monthago. Last night could have been one of the nights it could have beenattempted. The plan has been abandoned now. It was not part ofthe plan to arrest the Governor-General. Had the arrests been madesuccessfully it was my intention to make a request to the Governor-General almost immediately to take over the Government.” Thelast sentence has already been commented upon. 3rd defendant has
eta ted that if he used those words it was only with reference to theGovernor-General taking over the immediate situation. The reference tothe plan having been conceived about a month previously is explained by3rd defendant as an indirect reference to Mr. Bandaranaike having let downthe Prime Minister and the Government over the C.T.B. strike early inDecember 1961 by a speech he made in Parliament, thereby causingseveral subsequent strikes. There is absolutely no evidence to suggestthat Mr. Bandaranaike could have been suspected at that time of actingin that matter against the views of the Government.
There follows the sentence : “ The reason the Parliamentary Secretaryand the Permanent Secretary were considered dangerous was that theycould issue lawful orders to the Services.” Obviouslv this is a referenceto the earlier passage where 3rd defendant has stated that these twopersons “ could issue lawful orders to prevent the plan.” Hence it isclear that they were to be arrested in order that this plan could be carriedout.
The next sentence is “ I did not think that the Prime Minister will bein a position to effectively prevent the plan and I hoped she shouldacquiesce.” 3rd defendant has said in evidence that he was here referringto his plan, and the words can only mean that he hoped the Prime Ministerwould acquiesce in the plan which he had already explained. There isa significant passage later in the statement, which runs thus: “ Byacquiescence on the part of Mrs. Bandaranaike if our Coup succeededI mean that I had hoped that Mrs. Bandaranaike would agree to acceptSir Oliver as a Constitutional Dictator. I had heard that she frequentlythreatened to dissolve Parliament owing to difficulties within her party.”3rd defendant has by using these words ” Constitutional Dictator ”,which he has admitted he used, thrown a flood of light (1) on the earlier“cnt^nces regarding the action he i "tended to take with reference to theGovernor-General, and (2) on his contemplated attitude to the PrimeMinister. It is idle for him to say, as he did in evidence, that he onlymeant that the Governor-General would consult and speak to the PrimeMinister about taking charge of “ the situation ” after the arrest ofMr. Bandaranaike and Mr. N. Q. Dias. It is not possible for us to over-look the significance of the expression “ Constitutional Dictator ”.3rd defendant surely did not think that consultations between theGovernor-General and the Prime Minister — even after the arrest ofher Parliamentary Secretary — would convert the Governor-Generalinto a Constitutional Dictator.
The statement goes on : '* It was I who determined the timing andplanning of this operation. It was about 2 or 3 days ago that I deridedthat last night should be the night. It was not essential to our plan thatthe Communists should be arrested before the request was made to theGovernor-General. It was intended that after Sir. N. Q. Dias and theParliamentary Secretary were arrested and while the arrests of theLeftists were proceeding, a request be made to the Governor-General
to take over the Government.” The last sentence contains the fifthreference to the intention to request the Governor-General to take overthe Government. It cannot reasonably be argued that there were asmany as five instances when 3rd defendant was misunderstood on thispoint by Mr. Selvaratnam who, according to 3rd defendant, has written" Government ” when he should have written " situation”. Not oneof these alleged mistakes in recording has been corrected by 3rd defendantwhen the statement was read over before it was signed by him. 3rddefendant has conceded, quite rightly, that if he did in fact say that theGovernor-General was to be requested to take over the Government,that is a position quite inconsistent with his defence.
The passage quoted also makes it clear that 3rd defendant has admittedto the night of 27 th January being the night chosen by him for theoperation—whatever it was—to be launched. Evidence given by manyprosecution witnesses has pointed clearly to their having been informed •that the 27 th night was to be an eventful night.
In this passage, as in an earlier one, 3rd defendant has referred to thearrest of Leftists which was to be a preliminary step. Though he haseaid in evidence that such arrests were not part of his plan but was part ofa Government order which was expected, his words do not bear this out,fpr in this passage and in the earlier one the arrest of Leftists is madepart of his plan, though not a part which had to be completely carriedout before the request was made of the Governor-General.
3rd defendant’s evidence that the time of putting his plan into operationdepended entirely on Mr. Bandaranaike acting is not borne out by hiswords “ It was about 2 or 3 days ago that I decided that last night shouldbe the night ”, coming as they do immediately after the words “ It was Iwho determined the timing and planning of this operation. ” 3rd defend-ant has a good command of the English language, and these wordscannot possibly be given the meaning he now asks us to give them : nordo we accept his explanation that the word “ should ” is a mistake for“ would ”.
This view is confirmed by the next sentences in the statement: “ Itwas not possible to arrest Mr. Dias or the Parliamentary Secretarybecause the plan was called off. It was considered the best time for theoperation was some time after midnight. The stage of putting the planinto operation was not reached because the plan was called off.
Q. Why was it called off ?
A. I rather not answer it.
Is it because the Prime Minister had become aware of yourplan 1
A. r I rather not answer it.
Q. At what time did you decide to call off the operation ?
A. T rather not answer it. ”
According to 3rd defendant, the reference to the “ best time for theoperation ” is merely a reference to 4th defendant having said that thearrests he would have to carry out on the orders of the I.G.P. would bemade after midnight, as political arrests are normally made after thecinemas have closed down. The word “ best ” would not have been usedif that had been intended. Apart from the two references in this passageto the plan being called off, there was the earlier one where 3rd defendantsaid “ The plan has been abandoned now ” and there is a later one wherehe has said “ Up to the time I called off this plan I did not doubt theloyalty of the participants.” Yet we are asked to accept 3rd defendant’sevidence that there was really no question of his calling off a plan, andthat the true position was that his plan was dependent on Mr. Bandara-naike moving to seize power. The general tenor of the statement isagainst this position. It can only mean that 3rd defendant thoughtthat the “ best ” time from his point of view was after midnight. More-over, we have had no independent testimony to support the suggestionthat “ political arrests ” are usually made after midnight.
The next passage reads : “ I was not in a house at Frances Road,Wellawatte, or in any other place at We II a watte at any time last night.I do not think I was in any place at Wellawatte last night. I was not inMr. Maurice de Mel’s brother’s house at Wellawatte last night. ” 3rddefendant has also denied in evidence that he went to Frances Road thatnight. He has also explained that although he was doubtful about it atone stage, in his Opinion Kinross Avenue is not in Wellawatte. Wehave dealt with the meeting at Frances Road in another part of thisjudgment, where we reject the 3rd defendant’s denial of that meeting.
Then follows this passage : “ I did inspect the ammunition magazineat Army Headquarters about 10 days ago. My inspection was in con-nection with this plan. I intended that Mr. N. Q. Dias the PermanentSecretary and the Parliamentary Secretary should be temporarilyaccommodated in the ammunition Magazine. The Leftists were alsogoing to be kept there. The Magazine has a room outside it. Theroom is provided with fans. ” 3rd defendant’s evidence is that heinspected the Magazine only because he was searching, at 4th defendant’srequest, for a safe place in which the Opposition leaders could be kept ifthey were arrested on orders given by Mr. Bandaranaike. The statementis different, because instead of keeping Opposition leaders there he hasadmitted that he intended to keep Mr. Bandaranaike, N. Q. Dias andLeftists there. While the statement mentions that his inspection wasconnected with this plan, 3rd defendant has said in evidence that heactually had nothing in mind about his plan when he made either his 1stor 2nd inspection of the magazine. His explanation is that he hadexpressed himself loosely in this part of his statement.
The next passage is : “I realize the seriousness of what I was doing tothe Government. I think I broke my oath. I think I have committeda very serious crime. ” 3rd defendant said in evidence that instead of“ doing ” he used the word “ saying ”, but in fact Mr. Selvaratnam
first wrote ** saying ” and corrected it to “ doing ”, and 3rd defendantadmitted that he saw that correction: yet he did not alter it. 3rddefendant has also denied in cross-examination that he said that hethought he had broken hi3 oath. His position is that when Mr. Bandara-naike said “ You have broken your oath ” he replied ** Zf you say so Isuppose so. ” Yet in examination-in-chief, 3rd defendant gave the follow-ing explanation of this sentence, viz., that Mr. Bandaranaike asked him” Do you realize that you have broken an oath ” ? and he replied ** I-think so His explanation of this answer is that he had not taken theArmy Commander into his confidence. With regard to the words*' I think I have committed a very serious crime ”, 3rd defendantsaid in examination-in-chief: “ I think he (Mr. Bandaranaike) saidwhen he was questioning me, by breaking your oath you have committeda serious crime or some such thing ”, but he has not denied that he saidwhat appears in the statement.
There follow the following words in the statement: ** I do not wish todisclose the names of any persons who took any part in the plan or itsexecution. I say I am the leader of this whole business.
Q. Why do you say you are the leader ?
A. . Because I give the orders and direct the operation. ”
3rd defendant has here admitted that there were others involved withhim in this plan, but he had resolved that he would not disclose thenames of any of them at the questioning.
The statement goes on : “ The plan was that the Army Commandershould not hear of the plan at all till it was carried out. But if he didhear of it, he was to be restrained. ” Under cross-examination 3rddefendant has admitted that it was his intention that even if the ArmyCommander was sent for by the authorities he was going to be restrained.In examination-in-chief his position was tnat the plan was to havecertain Police personnel guarding the houses of the Army Commander,the Navy Commander and the Air Force Commander; if they tried toleave their houses they were to be informed that 3rd defendant had givenorders and they could contact either the 3rd defendant or 4th defendant;if they left their houses, the Police officers were to watch their movements.Later in the statement 3rd defendant is recorded as having stated : " Ithink as in the case of the Army Commander arrangements had been laidon to restrain the Navy Commander and the Air Force Commander if theneed arose. ” It seems reasonable to conclude that when 3rd defendantused the word “ restrain ” he meant what he said.
The next passage is: ” I felt that my forces were a bit thin on theground. I realise that what I state now can result in my being placedunder restraint. ”
Yet 3rd defendant said in evidence that they had no forces, and thatis what he meant to say when he used these words. He has also said inevidence that they made a definite decision that they were not going to use
troops in action, as that would create chaos with troops fighting eachother. He denied a suggestion put to him in cross-examination that hesummoned the Commanding Officers of various Regiments to ElibankRoad and Kinross Avenue because he wanted to use their units. Heexplained that he merely wished to forewarn them of any deployment byMr. Bandaranaike. It is difficult to reconcile these statements in hisevidence with his express reference to “ my forces
The next passage is : ** There is no religious basis behind this plan ofmine. Up to the time I called off this plan I did hot doubt the loyaltyof the participants.
Q. Are you a U. N. P. man ?
A. I vote U. N. P. as a rule.
s I have not discussed this plan either with Sir John Kotelawa’a orMr. Dudley Senanayake. The operation is entirely non-political. Ido not know whether any of my participants put this plan to Sir JohnKotelawala or Mr. Dudley Senanayake. As I was the leader, I certainlycould not have asked either of them/* These statements, which musthave been answers to questions, call for no comment by us.
The next sentence is: “ I hoped that the Governor-General wouldsee reason and accept the position that the coup was a fait accompli.”The statement for the first time has the word “ coup ” where the wordpreviously used was “plan’*. 3rd defendant’s explanation in evidenceis that Mr. Bandaranaike used the word coup ” and asked him thequestion ** Did you expect the Governor-General would accept thepo ition that the coup was a fait accompli ? ” to which he probablyanswered “ I hoped he would consent.” Under cross-examination hewas asked why he did not tell Mr. Bandaranaike that there was no coup,and his answer was that if he was given time to answer he might havesaid something like that. It should have been easy for him to say theobvious thing, and the thing which he should have been anxious to say ifthere was no coup contemplated. In t he course of the next 4 paragraphsof the statement the word “ coup ” appears eight times. 3rd defendant’sposition in evidence was that Mr. Bandaranaike was trying to involvehim, and had at a very early stage tried to pin him to the position thathe was going to run the country, which is something he had never contem-plated. It is therefore all the more surprising that he should have allowedthe word “ coup ” to occur nine times in his statement, and also implicatedhimself as a participant in it. In his evidence 3rd defendant said thathis plan was merely to arrest Mr. Bandaranaike and Mr. N. Q. Dias andreport immediately to the Governor-General and place the evidencebefore him. The language of this sentence certainly connotes somethingmore than this.
The next passage is: “ It would have been bad tactics to inform Sir01-ver beforehand. I considered it would have been bad tactics to inform
the Prime Minister beforehand. I think as in the case of the ArmyCommander arrangements had been laid on to restrain the NavyCommander and Air Force Commander if the need arose.’*
• There followed a question "'Did your plan envisage taking of anykeypoints ? ’* to which 3rd defendant answered " I rather not answer thisquestion.** He could well have answered " No ” if he did not in factintend to take any key points. He has made certain denials in differentparts of his .statement and he could have done the same here if there wasno plan to take any key points.
There follows the following passage which is of considerable signifi-cance. " If the Governor-General did not accept our proposal we werein a doubt as to what we should do. If the G. G. did not react favourablyto our proposal we certainly did not intend to shoot him nor did weintend to dismantle our coup and pack up nor did I see myself as a personacceptable to the country. In that case we would come and askMrs. Bandaranaike to agree to serve in the changed circumstances. Ifshe refused I would not have asked any political leader but by then Iwould have expected my coup to be. a failure. If Mrs. Bandaranaikerefused I would not have suggested offering to the U. N. P. because
they are pot the party in power, (6) I did not think that they hadthe men to do it. If Mrs. Bandaranaike had refused, I had not thoughtof offering to any other Minister in the present Government.**
We can only relate the word " proposal ** here to the repeated state-ments appearing earlier that the plan was to request the Governor-General to take over the Government and run the country. It surelymeans something more than merely offering some evidence or informationto the Gov**™or-General against Mr. Bandaranaike, to the effect that hehad ordered the arrest of his political opponents, and asking the Governor-General to check upon it. The word proposal ” would be quite incon-gruous in such a context. And if that was all that 3rd defendantintended to do on going to Queen’s House, and the Governor-General didnot accept the evidence or information, there was nothing more to bedone. Why did 3rd defendant go on to say " If the Governor-Generaldid not react favourably to our p oposal we did not intend to shoot himnor did we intend to dismantle our coup ? ** And what was the necessityto " ask Mrs. Bandaranaike to agree to serve in the changed circums-tances ** which 3rd defendant said meant only “ without Mr. Bandara-naike ”? The intended invitation to Mrs. Bandaranaike, which wasonly to be made if the Governor-General did not react favourably, canonly mean that she was to be asked to run the country as a substitutefor the Governor-General who was the first choice. We think that “ thechanged circumstances ” was only a euphemism for " under the aegis ofthe conspirators who had brought about a fait accompli.** Although3rd defendant has said in evidence that he did not dream of ousting thePrime Minister, the idea of ousting her is implicit here, because it is plain
that the Government of the country was to be entrusted to the Governor-General and Mrs. Bandaranaike was to be brought in to serve only if theGovernor-General refused to accept the new set-up.
We have already expressed our view that the words " If the Governor-General did not accept our proposal **; cannot possibly mean “ If theGovernor-General did not accept the evidence or information which wewould have had against Mr. Bandaranaike. M The sentence in thestatement actually reads “ If the Governor-General did not acceptour proposal we were in a doubt as to what we should do. ” Yet inthe examination-in-chief, after an explanation of the arrangementstaken to restrain the Service Commanders if the need arose, there occursthe following passage:—
Q. In regard to the rest of the arrangements, your plan was to reportimmediately after the arrest of those two individuals (i. e. Mr. Bandara-naike and Mr N. Q. Dias) to the Governor-General ?
A. Yes.
,Q. And place evidence before him 1
A. Yes.
Q. Were you asked any question as to what you would do if theGovernor-General rejected your evidence ?
A. I knew what we were going to do. I heard various versions ofit. They all indicated what I intended to do.
Q. Which was ?
A. If we cany swords, we hand the swords over.
Q. As a token of surrender ?
A. Yes.
Q. The expression used in the language of the Army Commanderwas that you felt you would be in a spot ?
A. I must have said that.
Q. That is if the Governor-General would not accept 1
A. As far as we were concerned it was all up.
This is hardly the same as saying “ we were in a doubt as to what weshould do.**
There followed this question and answer;—
. Q. Then were any questions addressed to you on the hypothesis, uponthe possibility of the Governor-General accepting ?
A. Yes.
We can find nothing in the recorded statement to justify this questionbeing put. The questioning of 3rd defendant by his Counsel up to thisstage proceeded on the basis that the words “ accept our proposal ”
meant “ accept our evidence ”, bnt we have rejected that interpretation*of the statement.
Then followed these questions put by Counsel and the answers givenby 3rd defendant:—
Q. Colonel de Saram, what reasons did you have to expect theGovernor-General to accept your evidence on that action you took ?
A. I was pretty sure that this was not a Government plan. Hadit been a Government plan he would have known about it in which casewe were on the mat for a grave error of judgment.
There followed more questions and answers and then—
Q. On the hypothesis that the Governor-General would accept yourrepresentation, he asked what you expected to do in regard to the PrimeMinister and what was your answer ?
A. I thought he would send for the Prime Minister.
Q. And what did you expect her to do ?
A. I thought she would continue to serve in the changed circumstanoee.I indicated to him that she would be without Mr. Bandaranaike.
Q. You expected her to serve in the changed circumstances I
t*
A. Yes.
Q. The changed circumstances would be the deprivation of theservices of Mr. Bandaranaike on whom to your knowledge she leantvery heavily ?
A. I did not know whether she leant on him very heavily at that time.
. This last answer must have taken 3rd defendant’s Counsel by surprise,for it waters down considerably the interpretation of “ changedcircumstances ” which 3rd defendant had already given.
A reading of the statement also shows that these questions put by3rd defendant’s Counsel were put on a false premise. The statementclearly proceeds on the footing (1) that Mrs. Bandaranaike was to beasked to serve not by the Governor-General but by 3rd defendant andhis followers, and (2) she was to be asked by them to serve only if theGovernor-General did not react favourably to their proposal, (whichwas clearly a proposal to take over the Government, and not merelythe placing of information or evidence).
This is made clearer still by the next passage in the statement:—
" I had staked the entire success of this coup on the entire chancethat Sir Oliver would fall in line with the coup. It was my ownthinking that led me to this belief. I could not have trusted SirOliver far enough to have taken the risk of ascertaining his viewBbeforehand, although I staked the entire chance of our success uponthe certainty that Sir Oliver would accept our proposal. I do notknow Sir Oliver personally very well. ”
' In his evidence 3rd defendant did not dispute that he had said this,bnt he ag^in explained that this referred to the Governor-General accept*ing the evidence he. intended to produce. It is impossible to acceptthis explanation which ignores the use of the word “ coup ” twice inthis passage. The passage is in fact an elaboration of the earlier sentence“ I hoped that the Governor-General would see reason and accept theposition that the coup was a fait accompli. It would have been badtactics to inform Sir Oliver beforehand. ” But here again we find itnecessary to comment on certain questions and answers which appearedin the examination-in-chief of the 3rd defendant. They read:—
Q. I took you on to the questions addressed to you of various alter-natives presented to yon in the event of the Prime Minister refusing toserve under the changed circumstances ?
A. Yes.
Q. When those alternatives were exhausted, then, Mr. Bandaranaikepresented yon with the alternative that you would be left with theGovernor-General in sole charge ?
A. Yes.
After a few more questions and answers, we have
Q. Then yon appreciate this, in the event of the Prime Ministerrefusing to serve under the changed circumstances, that you are leftwith the position of the Governor-General being in charge ?
A. He drove me to that position.
These questions are based on a misunderstanding of the statement.It is impossible to see how the Governor-General could have been leftin sole charge after the Prime Minister had refused to serve, when accord-ing to the statement the Prime Minister herself was to be asked to serveonly in the event of the Governor-General not reacting favourablyto 3rd defendant’s proposal. It is quite unfair to say that Mr. Bandara-naike drove 3rd defendant into any such position; from the commence-ment of his statement 3rd defendant has made it plain that his intentionwas to put the Governor-General in sole charge of the Government.
There follows the passage : “By acquiescence on the part of Mrs.Bandaranaike if our coup succeeded, I mean that I had hoped thatMrs. Bandaranaike would agree to accept Sir Oliver as a ConstitutionalDictator. I had heard that she frequently threatened to dissolve Parlia-ment owing to difficulties within her party. This has been a currentrumour. I believe that all the ills of our country at the present momentare due to the Parliamentary system of Government. Sir Oliver asa Dictator could have had the advantage of being able to come to decisionswithout having the necessity to placate voters.”
Mr. Ponnambalam at one stage argued that the reference to the PrimeMinister acquiescing was a reference to the Prime Minister acquiescingin the arrest of Mr. Bandaranaike. 3rd defendant has said in evidence
that he might have used the words “Constitutional Dictator”. :3rddefendant has also admitted that he did express the views appearinghere regarding the parliamentary system of Government and the advanfc*-^age of Sir Oliver being a dictator. But his explanation is that he merelyagreed with what Mr. Bandaranaike suggested to him on these lines.1Why did he agree if they were not his views % This complaint of the3rd defendant against Mr. Bandaranaike hardly squares with the followingquestions and answers.
Q. Having read the statement, would you say that your entirestatement reflected the truth subject to one limitation ?
A. I think it is a fair summary of the statement.
Q. What was the limitation that you had in mind ?
A. I did not tell him the reason why I was moving against him.
The statement proceeds :—
“The decision to stage the coup started from the commencementof the Harbour Strike, it might have been the C. T. B. strike. I admitthat I am the principal participant in this coup. I take full responsibilityfor the consequences.
Q.. Were any of the participants other than the present membersof. the Armed Services or the Police ?
A. No."
“I thought my persuasion would ensure the obedience of these partici-pants in the coup who were from the Army and the Police withoutdirectives from the Service Commanders.” The word " coup ” occursthree times here, and 3rd defendant has admitted that he was the principalparticipant and that he takes full responsibility.
Finally, there is this passage :— “ It was my idea that Communistsand Leftists should be arrested although the proposal to the Governor-General need not have awaited the completion of these arrests. Iappreciate that notwithstanding my statement, the Government wiUhave to proceed with this inquiry, with regard to other participants.I am satisfied that I have been fairly questioned.” There is here theadmission that 3rd defendant wanted the Communis', s and Leftiststo be arrested, but he has not even hinted at what he said in evidence,viz. that the real position was that the Inspector-General of Police wasactually going to carry out such arrests on the orders of the Governmentwithout any hindrance from 3rd defendant and his collaborators.
Major General Wijekoon in his evidence mentioned as much as hecould recall of the 3rd defendant’s statement. One significant factwhich he remembered was that 3rd defendant said he was going toQueen’s House to interview the Governor-General, after the arrest ofMr. Bandaranaike and Mr. N. Q. Dias, and to request him to take overthe Government; also that 3rd defendant said he thought the PrimeMinister would adhere to that.
We have considered this statement in the light of 3rd defendant’sevidence and his explanations. We see no reason to .think, thatMr. Selvaratnam’s record is faulty on any material point, though theremay undoubtedly be omissions in it. 3rd defendant has’1 sighed thestatement after it was read over, and Mr. Selvaratnam said that heread it over to 3rd defendant. 3rd defendant made more' than onerequest of Mr. Bandaranaike and Selvaratnam, that he be given a copyof it. We do not understand why he should have been so anxious tohave a copy of it if it was not in his view a substantially correct recordof what he had stated, most of it consisting of answers to questionsput by Mr. Bandaranaike. We should have expected 3rd defendant,if there had been any major errors of recording, to concern himselfmore with getting the record corrected before he signed it. He doesnot say that he had no time to make corrections; and Mr. Bandaranaikewas not present when the statement was read over and signed, so thathe could not have hindered any action 3rd defendant wished to take inthis regard. Mr. Ponnambalam said at the commencement of this trialthat he welcomed the production of this statement, and the Attorney.-;General read the whole of it out in the course of his opening speech.We are satisfied beyond any reasonable doubt that the statement re-presented the truth as 3rd defendant knew it at the time it was made.
The statement itself is proof that 3rd defendant was party to muchmore than a plan to thwart a possible seizure of power by Mr. Bandara-naike. It discloses that 3rd defendant had planned to establish whathe termed a “ constitutional ” dictatorship, and for that purpose torequest Sir. Oliver Goonetilleke to take over the Government of thecountry. It involved the overthrow of the established Governmentand the parliamentary system, and the substitution for that of a “ Consti-tutional Dictator ” who could make decisions on his own. Such a plancould not, of course, be effected without the participation of others also.
The inspection of the ammunition magazines by 3rd defendant on the19th and 22nd January was not because they were to be put to theinnocent or merciful purpose that he and 4th defendant have pretended.There followed the orders given to Abeysinghe, by 2nd and 3rd defendantsjointly. 3rd defendant has given the date of this interview as the 25thmorning, a date of great significance in the history of this plot. Theyordered him to put the prisoners, who were to be brought to the gatesof Army Headquarters, into these magazines. It is now clear thatthose persons—and they were not expected to be Opposition leadersof all parties but Leftist leaders—were going to be brought by the Police;and Lieut. Col. Abeysinghe was expected to work at the gates in liaisonwith Superintendent of Police Arndt.
We reject the 3rd defendant’s evidence as to (1) why he and 4thdefendant planned to provide accommodation in those magazines;
who were the persons to be arrested and put into them ; and (3) whathe and those whom he was leading intended to do, at or about the timethese steps were being taken.
0It 7431 (7/05)
We accept Rajapakse’s evidence as to what 3rd defendant told himOn the 26th night. This evidence of Rajapakse the accomplice proveswhat the conspiracy was for ; and it receives the amplest corroborationfrom the statement (P159) made by 3rd defendant. No better corro-boration could have been found. Abeysinghe, in his evidence as towhat the 2nd and 3rd defendants told him at Ceylon Volunteer ForceHeadquarters about their intended operation, has dishonestly attemptedto support the 3rd and 4th defendants’ story about countering a coupby Mr. Bandaranaike—a defence belatedly concocted to meet the prosecu-tion case.. His statement at Temple Trees is in direct conflict withhis evidence. He made an effort to do the same thing when speakingabout the 3rd defendant’s talk at Kinross Avenue, but here again weaocept Rajapakse’s evidence as to what was said there, in preferenceto that of Abeysinghe or Ah vis.
We might in this connection also refer to Mr. L. D. S. Gunasekera’s.evidence that when he met 3rd defendant in the Magazine Prison onMarch 13th and asked him what happened, 3rd defendant replied :“ Felix (meaning Mr. Bandaranaike) had planned a coup to try andbecome a Dictator. Jungle and I planned to prevent it, but nothinghappened.” We do not understand why 3rd defendant did not say,when'he was giving evidence, that he had made such a remark to his4 Proctor if*he did in fact make it. He was surely the proper person tospeak to the making of such a remark, if it was in fact made.
3rd defendant has said in evidence that, after obtaining 4th defendant’spermission on 23rd January, he discussed with 2nd defendant on 24thJanuary the plan which he and 4.th defendant had formed to thwartMr. Bandaranaike. He said that he and 2nd defendant also discussedwhat sort of a person Abeysinghe was, as the Magazine, being underthe latter’s control, was necessary for the custody of the arrested persons.That is how Abeysinghe came to be summoned on the 25th and toldof the plan which 2nd and 3rd defendants had decided to conceal fromthe Army Commander. It is plain that thereafter 2nd, 3rd and 4thdefendants became joint conspirators working together with othersto achieve their purpose.
There was no thought or idea of preventing Mr. Bandaranaike seizingpower, because there never was any fear of such a move by him. Whatthen was their plan, and what did they want to achieve ? We holdthat the plan was, in one word, to overthrow the Government thenin power. If necessary, force and the show of force were going to beused, both to overcome and to overawe those in power if they stood intheir way. In place of the lawful Government then exercising authorityunder the Constitution, they intended to substitute some unconstitutionalruler or rulers.
It was in pursuance of this conspiracy that action was taken by 2ndand 3rd defendants to meet at different times and places the officerscommanding certain Regiments, and other Army officers; it was for
this reason that 2nd defendant ordered a co-ordinated Recce, whichtook place on the 25th afternoon ; and 2nd defendant initiated', the.unusually quick procedure to obtain 12 Stirling guns for Alwis’s Regimenton the 27th.
.; Although 3rd defendant has said that he and 2nd defendant decided;that there would be no deployment of troops on their part which mightcause fighting between opposing forces, they and those working withthem would surely have known that a Government in power cannot beexpected to submit tamely to those who, unlawfully and by the use ofunconstitutional methods, try to dislodge it from the seat of power.Opposition by it even to the extent of using the Armed forces underits command must have been anticipated by these conspirators. Andwe do not for a moment suppose that the conspirators intended, if therewas such opposition, to surrender immediately. What did happedon the 27th was an unexpected disclosure of the plot by StanleySenanayake which ultimately caused the conspirators to disband, andto abandon their objective.
The meeting of 2nd, 3rd, 4th, 5th and 6th defendants at PrancesRoad, between the Elibank Road and Kinross Avenue meetings, hasbeen proved to be a fact by the evidence of Stanley Senanayake. Hisaccount of what took place there goes to prove (1) that those who metwere members of this conspiracy; (2) that they had become awarethat the D.I.G., C.I.D. had been informed of the plot- and was makinginquiries into it; and (3) that they were trying to devise measures toundo the damage that had been done to their 'cause by StanleySenanayake’s disclosure to the Inspector-General of Police of whichhe had informed 4th defendant.
2nd defendant’s complicity as a conspirator is established by the evi-dence of 3rd defendant once we reject, as we do., 3rd defendant’s versionas to the object they intended to achieve by the various steps they took. •3rd defendant’s evidence shows that from the 24th January, whenhe brought 2nd defendant into the conspiracy, he was in constant consul Ttation with 2nd defendant and kept him informed of what was being doneand received 2nd defendant’s co-operation in the steps taken. On the27th, according to 3rd defendant, they alerted Army officers andarranged a meeting at 15th defendant’s house in Elibank Road, which theyboth attended. They both attended and gave orders at the KinrossAvenue meeting. In between they were both present at the FrancesRoad meeting.
At Temple Trees on the 28th morning 2nd defendant told GeneralWijekoon (according to the latter’s evidence), after he was confrontedwith Stanley Senanayake and asked to be allowed to speak to the Generalalone, “ Deryck de Saram brought me into this. I want to speak toCol. de Saram. ”
Rut what strikes us as a glaring omission, which would not haveoccurred if there had been any truth in the defence now put forward, is
24JUDGMENT OF COURT—The Queen v. Liyanage and other a
■-— – — — – . – — – ■■ —■ — — ' – ■ . . ,
she non-disclosure by 2nd defendant to the General of the allied reason
'or the action taken by him and 3rd defendant from the 24th morning to
the 27th night.
The ordering by 2nd defendant of the co-ordinated Recce which washeld on the 25th, and to which we shall presently refer, is apother cir-cumstance that tells against 2nd defendant. It was held in orderto discover how to disrupt the working of the three Exchanges which wereVisited in the course of that Recce, and had nothing to do with themaintenance of telecommunication traffic during a strike.
Though 3rd defendant pretended that he did not know that this Reccehad been ordered, we are sure that he knew all about it and the necessityfor carrying it out in order that the conspirators may be in a position toparalyze the means of communication on which their opponents wouldhave normally relied.
Many of the matters telling against 3rd defendant have been referredto already. But the most damning piece of evidence produced by theprosecution against him—and we stress that it can be used in evidenceagainst him only—is his statement at Temple Trees which he have dis-cussed in detail. We are surprised that in the face of that statementhe should' have asked us to act on his evidence in Court. Whenthe4 two are tompared, any effort however great cannot possiblyreconcile them. His inspections of the Army magazines, which GeneralWijekoon said were quite outside his powers as Deputy Commandant;his enlistment of the services of Abeysinghe to act as a Jailor in respect ofpersons whom he intended unlawfully to confine in those magazines ;his improper summoning of Army officers holding the rank of Lieutenant-Colonel, and other officers of lower rank, to the house of 15th defendantand later to Kinross Avenue behind the back of the Army Commander ;his orders to those officers to do what could only be characterised as com-pletely irregular and even unlawful acts—all this he has sought in evidenceto justify on the ground that Mr. Bandaranaike would attempt a seizureof power which would bring down the lawfully constituted Government.
In truth and in fact, as his statement demonstrates, it was he himselfwho plotted with others to do that very thing, and to set up a new Govern- -ment of his own devising, for which there was not a scrap of legaljustification. He has falsely denied in his evidence what he confessed inhis statement. We can attach no credit whatever to his sworn evidence..
The case against the 13th and 15th defendants can conveniently bediscussed at this stage.
•• An operational order called Operation Pronto (19D2) was drawn up on7th January 1962 for the maintenance of Telecommunication and WirelessTraffic, as information had been received that a strike by certain employeesof the Post and Telegraph Department was possible. But the orderitself states that the Government was confident that the engineers ofthe Department would not join the strike. Tasks were in fact allottedto the engineers of the Department in the order itself.
■ On the 26th*January a jomt Reccewasheld by Major-G unasekara (16thdefendant), Capt. – Poulier and ' Capt. Meurling—all of. the* ti. 'A. ARegiment; l?th defendant who was a Staff Officer attached: to C. V.' F.Headquarters ; Capt. Seneviratne and 16th defendant—both-of5theVolunteer Signals Regiment; and 13th defendant, Officer Commandingthe Ceylon Electrical and Mechanical Engineers.' Major.Chapman said
that 2nd defendant found fault with him because the Volunteer L.-A. A.
– – *r,
Regiment had not carried out a Recce over operation Pronto.; y. 2nddefendant ordered Chapman to co-ordinate a Recce between that Regiment'and the Volunteer Signals, and he also ordered that 13th defendant shouldgo on the Recce as Technical Adviser because it was found during theToken Strike that the signals were weak.
..Chapman said he handed over the task of • co-ordination to 17thdefendant.
General Wijekoon said that when Operation Pronto was drawn up thePost & Telegraph Department engineers were not expected to strike,and although 13th defendant's unit was included in the distributionlist, 13th defendant had no need to go on a Recce in connection withPronto. He also said that Col. Brohier of the Regular Signals Regimentwas the chief adviser on telecommunication matters, and if the engineersstruck, the Security and Defence Committee would have had to givefresh orders in such a situation. He said that it was not necessary for theVolunteer Signals to go on the Recce either, except to help those down.for guarding the Exchanges to find out what the vital spots were.Obviously on the evidence before us, the officers of the Volunteer Signalsdid not think this was their duty, as nobody in the Signals who went onit had any knowledge of the working of the Exchanges, and nobody saysthat information of such vital spots was given to the L>. A. A. Regimentwhich was to be on guard. 17th.defendant as an officer of C. V. F..Headquarters may have gone in order – to – ensure – admission to theExchanges, according to the General.
The General had no recollection of any plan for the Volunteer Signalshaving to man the C. T. O., nor did he tell 15th defendant that theywould have to do so. Their only task under Pronto was . to operatethe Manual Exchanges at the outstations. Hence they had no need to.-do a Recce at the C. T. O. or anywhere else in Colombo.
The defence suggested that 2nd defendant considered that the VolunteerSignals might be called upon to perform some functions in connectionwith Pronto, outside those specified in the order. But the General saidhe would have expected 2nd defendant to bring that aspect of the matterto his notice. General Wijekoon did not concede that he had told 2nddefendant or 15th defendant that should there be a general strike, themain task of keeping civilian communications operating would devolveon 15th defendant’s unit owing to the Regular Signal Regiment beingbusy in Operation Marconi. No evidence was given by 2nd defendant or16th defendant to support any theory to the contrary.
/ To sum up General Wijekoon’s view, 13th defendant and 15th defendantbad hot done anything irregular by obeying a direction from C. V.Headquarters to do a joint Recce, but their going was unnecessary.!Certainly it would appear that 2nd defendant had no justification forordering it to be held, so far as it involved the Volunteer Signals and
13th defendant. It is a circumstance against him.• ' t
* «
i
It is necessary to see what happened on that Recce. We have not gotany evidence from either 13th or 16th defendant as to what either of them.,did. Capt. Seneviratne was ordered by 15th defendant to accompany.him, but he was not told what he was to do on it. This is certainly a.curious fact. The Exchanges visited were the Central Telegraph Office,the Maradana Exchange and the Havelock Town Exchange. Althoughquestions were asked from those working at these three Exchanges, Senevi-ratne has said—and we have no reason to doubt the truth of his evidence—that neither he nor 15th defendant had any experience in telecommuni-cation matters. The officer who had technical knowledge was Capt.Gurusinghe, but he was not taken on the Recce. What possible purposethen, could 16th defendant have hoped to achieve in regard to Operation.Pronto by going on it or taking Capt. Seneviratne on it ?
With regard to 13th defendant, he was not the Army expert on tele-communication* matters. Judging by what happened on the Recce,he seems to have asked questions himself. But if the Recce was for thepurpose of maintaining the Telephone Exchanges if the engineers of thePost & Telegraph Department struck, it is preposterous to expect thatthis brief visit which he paid to the Exchanges that afternoon couldpossibly have equipped him with the necessary knowledge for that purpose.We should have expected these two Lieutenant Colonels to meet theengineers and get any technical or other information they wanted fromthem, instead of meeting a minor employee at each Exchange and aoW"g.a few questions. Nobody in charge of any of the Exchanges was met by.this visiting party. It is more than likely that no prior permission hadbeen obtained from those in charge before they walked into the Exchanges,questioned the workmen, and examined the equipment. If the partyhad not gone in uniform, in Army vehicles, and with Capt. Seneviratnetwho was known to be an official of the Department, it is doubtful whetherhey would even have been admitted within the doors of any Exchange:
4
They met only some minor workmen who were in the Battery andGenerator Rooms, and by questioning them, particularly the witnessde Costa, they probably ascertained some superficial knowledge of theworking of the Exchanges ; and, more important still, how they could bedisrupted. It is our view that one purpose certainly of this Recce wasto find out how they could be put out of action. 13th defendant showedclearly that he was equipped with that knowledge when the question wasraised at Kinross Avenue : 15th defendant gave no indication either waybecause he did not answer the question.
According to Major Rajapakse, after 2nd and 3rd defendants came toKinross Avenue, 13th defendant was allotted a task at the C. T. O. andwas asked by 3rd defendant how long it would take. 13th defendantreplied, “ Everything is all right. You can perform it within 2 or 3minutes. ” Rajapakse lent force to this answer of 13th defendant bysaying that a little earlier he heard 13th defendant and de Alwis talkingabout putting Exchanges out of action. 13th defendant seems to haveanticipated 3rd defendant’s question. Indeed it had been put toRajapakse in cross-examination by Mr. Ponnambalam in this way:“ I put it to you that 3rd defendant asked 13 th defendant ' How longwill it take to immobilize the Exchange at the C. T. 0. * and 13th defend-ant said : * Pulling out the fuses won’t take more than 2-3 minutes.* ”
Rajapakse said that 15th defendant was detailed to go to anotherExchange.
: According to the evidence given by de Alwis, a witness who was byno means inclined to favour the prosecution, 3rd defendant referredto the C. T. O. and the Havelock Town and Maradana Exchanges, andasked 13 th defendant how long it would take to disrupt communica-tions at the C. T. O.
3rd defendant in evidence said he asked 15th defendant how theExchange could be immobilized,but the latter had no idea; 13th defend-ant then said it could be done in a matter of minutes. 3rd defendantalso said that he told 13th defendant there about manning the C. T. O.
' i. ,y
Although 3rd defendant pretended that the only knowledge he obtainedabout the Recce was that 2nd defendant had, prior to it being carriedput, told Major Gunasekera (16th defendant) that it should have beencarried out, we do not believe him. We think that 3rd defendantwould have made sure that the knowledge as to how an Exchange couldbe immobilized was avail a,hie to him or his supporters. He admittedin cross-examination that the C. T. O. was a key point, and its immobili-zation could not have been overlooked. The Recce would have servedthis purpose well. There was a significant connection between theRecce and the tasks he allotted to, and the one question he addressedto, the 13th and 15th defendants. He demonstrated that he knew whatthey were there for. They raised no protest, nor did they ask any-questions, although the assignments would have struck them as abnormalif they had no prior knowledge. No question, be it noted, was askedof them as to how the Exchanges were to be maintained.
What possible object could 3rd defendant and his supporters have hadin putting the Exchanges out of action, except to have control of thesituat’on and disorganize the forces supporting the Government ? Theunderground telephone system would have been available to 3rd defend-ant and 4th defendant if Stanley Senanayake was supporting them-as they hoped, or if they obtained control of his office. The WirelesRoom at the Secretariat, on top of the C. I. D. Building, was to be guarded
on 4th defendant’s orders by A. S. P. Percy Seneviratne; that was,in,' 4th defendant’s own words, “ because it is one of the nerve centresof Ceylon. From it one could transmit messages to the whole of Ceylon.”
It is impossible to resist the conclusion that both 13th and 15th defend-ants, who were Iieut. Colonels, know that the Recce was connectedwith 3rd defendant’s question at Kinross Avenue. We have to consideralso the other matters spoken of by 3rd defendant, including ref-rences to the Code word “ Holdfast ” and the Pass word ” Yathurathe giving of other tasks as spoken to by Rajapakse, such as the sendingof troops to Queen’s House, the guarding of Lake House and the Timesbuilding, de Alwis going to Army Headquarters to answer the telephone ;the Army Commander not being a party to the conference at this unusualplace at that unusual time ; the previous extraordinary meeting at 15thdefendant’s house only two hours earlier. All these circumstancesmust surely have struck these two Lieut. Colonels, 13th and 15thdefendants, as very odd. Yet by their conduct (silence on the part of16th defendant and words indicative of agreement on the part of the13th defendant) they showed that they were not unaware of what wasafoot and that they were willing to further 3rd defendant’s plan that. night. They have been present at Elibank Road and at Kinross Avenue,but they did not ask, for all we know from the evidence, what 2ndand 3rd defendants were expecting to do. Any Lieut. Colonel wouldsurely have asked. We are sure that they did not ask because they alreadyknew, and that they knew because they had already been told by 2ndor 3rd defendant or both of them, just as we are sure that Abeysinghe andde Alwis and Rajapakse had been told, of their objects.
What is more, General Wijekoon had earlier in January talked tothese Commanders of units, including 13th and 15th defendants, aboutrumours of coups and warned -They must surely have been
on their guard. Yet 15th defendant made his house available for thestrange meeting of officers held that evening, and far from objecting tothe use to which his house had been put he was present at 9 p.m. atKinross Avenue as instructed by 3rd defendant. The 3rd defendant’sparting words to the officers at Kinross Avenue, according to him, were“to be on the telephone line and to keep him informed. ”
As regards 13th defendant, we have it also from Major Weerasinghe,his 2nd in Command, that 3rd defendant visited the 13th defendant ohthe 24th and again on the 25th or 26th. Neither of them has told theCourt what the visits were for. Major Weerasinghe has also spokento the orders he received from 13th defendant at noon on the 27th, viz.two 3 tonners to be standing by from- that time onwards, and the mento be in Camp. Although Major Weerasinghe in his statement of 6thFebruary did not use the same language as he used in evidence, whenhe referred to what 13th defendant had told him, we accept his evidenceas bsing a correct reproduction of the orders he received. The ordershe himself passed on to his subordinate officers support that view.
We hold upon the evidence against the 3rd defendant that he prepareda plan which included inter alia the following objects :—
the arrest of Mr. Bandaranaike and Mr. N. Q. Dias, the restraint
of Service Commanders and the arrest of Leftists includingMembers of Parliament;
the utilisation of arms and personnel of military units, particu-
larly of the Armoured Corps, the 3rd Field Regiment, theVolunteer Signals and the Electrical and Mechanical Engineers,for the purpose of controlling strategic positions in Colomboand of a show or threat of force ;
the coercion of the Govemer-General, by the means set out in
paragraphs (1) and (2) above, to accept a proposal for theGovernor-General to take over the Government of the countryand to run the country ;
the acquiescence of the Prime Minister in a situation in which
the Governor- General would carry on the Government as adictator without the existence of Parliament elected by thevoters.
the actual use of force for securing any or all of the objects set
out above if any of them could not be otherwise achieved.
We hold on the evidence against the 2nd defendant that he collaboratedwith the 3rd Defendant in the preparation of the latter’s plan and ingiving orders for the execution of that plan, and that he did so withfull knowledge of the objects of the plan..
On the evidence of the 3rd and 4th defendants they acted in concertwith a common purpose in preparing their plans. The 4th defendantreferred to the 3rd defendant as the “ Captain ”. Although each of_ them did not know of many orders given and preparations made bythe other, each knew that such orders and preparations would be for thecommon purpose. Thus, for instance, the orders given by the 4th defend-ant for arrests, for the testing of the Police underground telephonesystem, for the arrest of the Navy Commander and the “ restraint ” ofthe Army and Air Force Commanders, for taking charge of the RadioControl Room at Police Headquarters, the Information Room and theC. I. D. office must be held as against the 3rd defendant (and as againstthe 2nd his collaborator) to have been part of the common plan. Theultimate object of all the planning was to overthrow the Government.But the mode by which the object was to be achieved was by overawingthe Governor-General and the Cabinet, who were expected to yield inthe face of the show or threat of force which the planned military andPolice action would constitute.
In our consideration of the law applicable to the charge in the firstcount of the Information, we have shown why in our opinion the objectsof the conspiracy which are set out above constitute in law waging waragainst the Queen.
Upon the evidence against them to which we have already referred,we hold that the 13th and 15th defendants, with full knowledge of theconspiracy in which the 3rd and 2nd Defendants were engaged, themselvesbecame members of that conspiracy when they participated in the Recceon the afternoon of 26th January 1962.
. At the close of the case for the prosecution, and after hearing theAttorney-General and Defence Counsel, we made order acquitting the11th, 16th and 17th defendants, and we shall now state our reasonsfor that order.
The evidence against the 11th defendant, Capt. Anghie of the 3rdField Regiment, was —
’(a) that he had been present at the meetings at Elibank Road and
Kinross Avenue on the evening of the 27th January,
that he was given an order at Kinross Avenue to be at ArmyHeadquarters that night,
that a few days prior to 27th January he had come down to Colombofrom his station at Mannar.
The Attorney-General strenuously argued that attendance at themeetings at Elibank Road and Kinross Avenue by itself constitutedevidence of agreement with other members of the alleged conspiracy to over-throw the Government; -or in other words, that the 11th defendantwould not have attended these meetings unless he probably knew before-hand the alleged illegal purpose for which the meetings were summonedand had himself been in agreement with that purpose. We were unableto accept this argument. There was no evidence of any prior contactbetween the 11th defendant and either the 2nd defendant or the 3rddefendant, who according to the prosecution were the leaders of the'Army 'participants in the alleged conspiracy. ' According to ‘ GeneralWijekoon, a junior officer such as the 11th defendant was, would beexpected to obey an order given by a superior officer, even if it be toattend at some place other than an Army Establishment. There mustmanifestly have been orders in this instance for the meeting at ElibankRoad, either from the 2nd defendant or the 3rd defendant or the de-ceased 7th defendant who was the Commanding Officer of the 3rd FieldRegiment, for how otherwise could the meeting have been convened ?and according to Major Rajapakse, the order to meet at Kinross Avenueand thereafter was in fact given by the 3rd defendant. In the absenceof evidence of any single circumstance which might indicate that the11th defendant had prior knowledge of any illegal purpose contemplatedby his superior officers, his attendance at these meetings in obedienceto orders did not in our opinion call for any further explanation.
Even if we assume at the worst, upon the basis of the evidence ofMajor -Rajapakse, that any officer present at Kinross Avenue shouldhave suspected from what was said there that some unlawful action wasin contemplation by the 2nd and 3rd defendants, an agreement on the
part of the 11th defendant to join in the alleged conspiracy cannot therebybe implied. Major Rajapakse did not state that the precise nature ofthe alleged conspiracy was mentioned at Kinross Avenue ; nor was thereproof of any subsequent conduct of the 11th defendant from whichit may be inferred that he became a consenting party to any such unlawfuladdon as might have been contemplated. It was suggested by the prose-cution that the order from Regimental Headquarters, for the 11thdefendant to return to Colombo from Mannar was a step in theunlawful plans of the 2nd and 3rd defendants. Even if that be correct,it would be quite unreasonable to suppose that the 11th defendant’scompliance with that order was an indication of his knowledge of oragreement with such plans. The simple explanation of obedience to anorder is inherent in the circumstances, and there was no evidence fromwhich to infer that the 11th defendant was subsequently informed ofthe unlawful purpose for which he was allegedly recalled to Colombo.On the contrary, there were at least two perfectly lawful purposes towhich he himself should reasonably have attributed his recall—to sitbn an Army Board, and to prepare for the contingency that he mightshortly be sent to the Congo on duty.
The evidence against the 17th defendant Capt. Felix related to —
(a) the fact that he organised a co-ordinated Reconnaissance of . theC. T. O. and the Maradana and Havelock Town Exchangeson the 26th January, which was conducted by officers of the2nd Volunteer Light A. A. Regiment and the Volunteer Signals,and by Colonel Mathysz of the C. E. M. E. ;
{b) his presence at Elibank Road and at Kinross Avenue and the ordergiven him to guard Lake House with the 16 th defendant; and
his presence about midnight in the Mess of the Light A. A. Regi-ment in the company of the 3rd defendant.
It was clear from the evidence of Major Chapman, a Staff Officer atVolunteer Force Headquarters, that the order for the “ Recce ” andthe choice of the units to participate in it was directed by the 2nd defend-ant who was the Commandant of the Volunteer Force. The choiceof the two Volunteer units was explained, in the one case by the instruc-tions for Operation Pronto which provided for the guarding of the C. T. O.and the two Exchanges by troops of the Light A. A. Regiment, and in..the other by the 2nd defendant’s statement to Major Chapman that theVolunteer Signals might have to take over the manning of the TelephoneServices. Even if suspicion might have attached to the choice of ColonelMathysz, the order had been made by the 2nd defendant. In arrangingthe “ Recce ”, Capt. Felix merely carried out an order communicatedto him by Major Chapman, and not by the 2nd defendant himself.In our opinion, there was no reason why Capt. Felix should have regardedwith suspicion an order which to all appearances was normal and lawful,and this opinion was confirmed by the evidence of General Wijekoon..
. Accordingly, there was no evidence upon which to base even a suspicionthat prior to 27th January Capt. Felix had knowledge of any allegedunlawful plan contemplated by the 2nd and 3rd defendants. As inthe case of Capt. Anghie therefore, the presence of Capt. Felix atthe two meetings of the 27th evening is sufficiently explained as havingbeen in compliance with orders given by his superior officers.
. In this instance also no subsequent conduct was proved to justify aninference that Capt. Felix did actually agree to participate in action■known to be unlawful. The mere fact that he was in the companyof 3rd defendant in the Light A. A. Mess about midnight was not suspi-cious in the circumstances. According to Lieutenant Colonel Jilla andCapt. Meurling, Capt. Felix regularly attended that Mess and often hadhis dinner there. The prosecution could only point to his presence in theMess about midnight, but could not even suggest that he had arrivedin the company of the 3rd defendant. Indeed all appearances are to thecontrary, for what is definitely known is that Capt. Felix and the 3rddefendant left Kinross Avenue not together but separately, and thatCapt. Felix was supposed to go later to Army Headquarters.
The evidence elicited during the course of the prosecution case didnot for‘'these reasons establish a prima facie case against the 17thdefendant. *
One item of evidence concerning Capt. Felix was relied on also againstthe 16th defendant, Major Gunesekeraof the 2nd Volunteer Light A. A.Regiment, namely that he participated in the “ Recce ” on the 26thJanuary. The explanation that this was ordered by the 2nd defendantis also available to the 16th defendant, but the defence establishedin addition that he informed his Commanding Officer Lieutenant ColonelJilla of the proposed “ Recce ”, and reported to him thereafter that theguard duties devolving 'oii'viie Regiment under the Operation Prontoinstructions required a larger number of troops than the instructionscontemplated. His participation in the “ Recce ” appeared to us to bereasonably referable to the performance of normal duty.
On 26th January, Major Emmanuel gave orders for a special internalsecurity platoon of twenty-four men to be on stand-by duty from noonof the 27th until the morning of the 28th, and there was evidence thatthe 16th defendant who was the second-in-command of the Regimentordered the number of the men to be increased to thirty. No suspicioncan attach to the 16th defendant on this score for Lieutenant ColonelJilla admitted that he had himself ordered that during this period thereshould be a stand-by platoon of thirty men. There was ample evidenceto indicate that on earlier occasions the troops of this unit had not beenin a due state of readiness when ordered to be on stand-by duty, andspecial security orders were in the circumstances only to be expected.
e£ The 16th defendant did not attend either the meeting at ElibankRoad or that at Kinross Avenue. But it was argued as a ground of
suspicion against him that he was seen in the company of the 3rd defend-ant about midnight on the 27th January in the Mess of the Light A. A,Regiment. The explanation for this was self-evident, for that was hisown Mess and he was at the time under orders to sleep in camp. Wefeel bound to express our surprise that Major Gunesekera was chargedwith grave offences on quite flimsy grounds.
. The evidence affecting the 10th defendant Capt. Jayakody was similar,to that affecting the 11th defendant Capt. Anghie. Jayakody’s .wasthe third Field Regiment, biit there was no evidence that he had anythingto do with the wireless exercise ordered for 27th January. Accordingto Major Rajapakse he was present at both gatherings of officers atElibank Road and at Kinross Avenue. But, as we have stated in othercontexts, orders from his superiors satisfactorily explain his presenceon those occasions. Rajapakse said that at Kinross Avenue Jayakodywas one officer who received an order to guard the Times building;but no subsequent conduct was proved to justify an inference that heagreed in fact to participate in action known by him to be unlawful. Hereturned from Kinross Avenue to his Mess in the company of the 12th‘defendant Capt. Weerasinghe and thereafter both these officers took theirbedding to Army Headquarters, presumably with the intention of sleepingthere. But one cannot accede to the prosecution argument that thisevidence indicated an intention to carry out any illegal order. Weaccept Jayakody’s statement that he and Weerasinghe subsequentlyreturned to their Mess when told to do so by their Commanding OfficerCol. Abraham. This implies that even the earlier intention of thesetwo officers to sleep at Headquarters had been in pursuance of ordersfrom their Colonel.
The chief difficulty which we felt with regard to both Jayakody andWeerasinghe at the close of the prosecution’s case arose out of the evidence,of Major Rajapakse concerning an incident alleged to have taken placeon the morning of 28th January. Rajapakse said that these two officers,,together with Capt. Harendran, visited Rockhouse and spoke to him,there. According to Rajapakse, Jayakody on that occasion mentionedan idea of rescuing from Welikada the two Police officers, Dissanayakeand Johnpulle, who had been taken into detention a few hours earlier,and inquired what the attitude of the Armoured Corps would be to suchan attempt. We accept the evidence of Col. Attygalle that he wasinformed of this incident by Rajapakse on the 28th, and that he tookearly steps to report the matter to the Army Commander. In factthe Army Commander stated that he in turn reported the incident toMr. Dissanayake D.I.G., C.I.D. Jayakody and Weerasinghe were thenquestioned at Temple Trees by the D.I.G. who, according to the Generaldid not regard the incident as being of any importance. Indeed the
I.G. and the General did not even think it necessary to questionRajapakse himself on this matter.
Now that we have held that Rajapakse must be treated as an accomplicein the alleged conspiracy, the evidence of this incident loses much ofits. significance. Rajapakse was not corroborated on this point, and on
the contrary Capt. Harendran contradicted him by the evidence thatJayakody only spoke to Rajapakse in Harendran’s presence and madeho remark of the kind mentioned by Rajapakse. In none of the numerousstatements elicited from Rajapakse and volunteered by him during theinvestigation did he once refer to this incident. In fact the DeputySolicitor-General conceded that he himself was taken by surprise whenRajapakse for the first time spoke about this matter at the trial. Mr.Kannangara has commented on the prejudice to the defence arisingout of this surprise. In our opinion Raiapakse’s failure to mentionthis incident in any statement to the investigators at the least indicatesthat, even if Jayakody made the reported remark, Rajapakse himselfquite soon realised, that it was not made in earnest. Nor can we confi-dently reject the defence suggestion that Rajapakse, because of hisneed to protect himself against involvement, thought fit to make toCol. Attygalle a report which was either false or grossly exaggerated.
10th defendant in his statement of February 28th, after mentioningthe Kinross Avenue conference, said: " After the conference I realisedthat we were really on the verge of a very important operation and Ithought that the Army was going to take over the Government of thecountry. I did not hear Col. de Saram and Col. de Mel tell the officers
at Kinross'Avenue anything about the Army taking over the Government
*
butt from the orders issued to the officers, it left no doubt in my mind asto the purpose of this conference ”. Taken by itself, this passage couldbe damning to the 10th defendant. But it is followed immediatelyby 10th defendant’s account of how he and 12th defendant receivedmessages from the Orderly officer who was at Echelon Square to the effectthat the Army Commander was trying to get at Col. Abraham (7thdefendant). They tried to telephone 7th defendant but failed to getat him, so they went to his house at Wellawatte and gave him the ArmyCommander’s message.. This indicates, to our minds, that 10th defendantdid not think that he was participating in any operation which did nothave the approval of the Army Commander. No doubt, he took his beddingand his uniform and went to Echelon Square as ordered by his Colonel:he could not do otherwise unless he was sure that he was tak:ng partin an illegal activity, for he had to obey the order given by his Colonel.But we are not satisfied that he entered into the illegal conspiracy himselfby going to his Regimental Headquarters. That act alone would notshow that he became a conspirator, for it is an equivocal act which anyjunior officer would have felt bound to do in obedience to an order fromhis Colonel. It must also be noted in this connection that 10th defendantrefused to accept a conditional pardon which was offered to him on16th February and 16th June, as A. S. P. Selvaratnam has said in evidence.The refusal appears to us to have been on the ground that 10th defendantdisclaimed any suggestion of guilt which accompanied the offer of such apardon. The drawing of the revolver from the Armoury is easilyexplained. 10th defendant was the Pay Officer on that day and he had
gone to the Bank to draw the money required to pay the salaries of theRegimental personnel. It was a normal precaution which any officer'would take during this time.
For these reasons we hold that the prosecution has failed to establishthe charges as against the 10th defendant. ‘ We reach the same findingin regard to the 12th defendant, against whom suspicion only arosebecause Jayakody was alleged to have made the remark in the former’spresence. What we have stated in regard to the evidence against the10th defendant applies even with greater force to the case against the12th defendant.
The case against 8th defendant, apart from his attendance at thisElibank Road and Kinross Avenue meetings on the 27th night, is thathe and 7th defendant had ordered a wireless exercise to be carried outby their Regiment on the 27th night. The defence admitted that thisexercise was ordered by 7 th defendant, and 8th defendant did his dutywith regard to carrying out that order, but submitted that it was a matter'of ord nary military routine and was quite innocent.
General Wijekoon has said that the carrying out of such an exercisewas well within 7th defendant’s duty, if for the purpose of training themen of his Regiment. He described 7th defendant as “ a very cautiousofficer ”. He said that a certain amount of suspicion was created thatnight in his mind by the choice of the seven points, to which the sevenvehicles chosen to take part in the exercise, were to be sent. They were
and (2) the two Kelaniya bridges (3) the Dehiwe’a bridge (4) theKirillapone bridge (5) the Harbour (6) Welikada and (7) the Town Ha]].-The suggestion made by th.3 prosecution was that C lombo was to beringed round, and these seven strategic points were chosen to close entry-into Colombo from outside. On the other hand, previous exercises ofthis nature had been carried out, and Staff Sgt. Perera has said in evidencethat a wireless set tested on the 26th night by him was found to beunsatisfactory and he so reported to 8th defendant.
Capt. Wanasinghe said that it was he and not 7th or 8th defendantwho chose the seven points to which the seven vehicles were to be sent.Therefore no adverse inference can be drawn from that circumstance.
The only evidence as to the day on which the exercise was decidedupon is that of Capt. Wanasinghe who said that on the 27th morning7th and 8th defendants spoke to him about the exercise that was to beheld that night, and told him that though he could leave Camp thatmorning he should return by 7 p.m. At abont 7 p.m. Lieut. Gajendranreceived a telephone call from 8th defendant asking him to cancel theexercise, as some men of the Regiment were going to the Port on duty-on the 28th morning. This message was conveyed to Capt. Wcnasinghe,and in consequence the equipment which had been drawn for the exercisewas returned to the Stores, and the men were dismissed.• v.
. Major Rajapakse has said that while he was in 8th defendant’s houseafter the Elibank Hoad meeting, prior to going to Kinross Avenue,7th defendant instructed 8th defendant to telephone to the Adjutantto remove the wireless sets from the vehicles. 8th defendant later told7th‘ defendant that he had done so. Thus it is dear that the wirelessexercise was cancelled before it had begun and, what is also important,it was cancelled before the Kinross Avenue meeting. If it had anyconnection with the alleged conspiracy, its cancellation at that particulartime is difficult to understand.
The two meetings which 8th defendant attended that night do not bythemselves point to his having any criminal intention or being partyto any criminal agreement. We are satisfied that he attended thosemeetings at the request of 2nd or 3rd defendant, but there is no evidencethat he had any prior knowledge of the purpose of these meetings. Mereevidence of association, it is clear, is not sufficient for the inference ofconspiracy to be drawn. 8th defendant, according to Major Rajapakse,was told by 3rd defendant to be in charge of, or look after, Echelon Square.This is an item of evidence which he had failed to mention in his statementat Temple Trees. The evidence, however, does not disclose that 8thdefendant did anything thereafter, in furtherance of the conspiracy orintobediencs to this order, which might indicate that he joined in theconspiracy.
Against 8th defendant there is also some evidence of his having visitedthe Armoured Corps Mess earlier in January and meeting 14th defendant,but we attach no significance to this. Major Rajapakse’s and Col.Attygalle’s evidence in regard to this matter cannot be put higher thanthis—that it shows that Major Rajapakse had some suspicions whichhe conveyed to Col. Attygalle after January 12th.
Col. Attygalle also referred to an incident where 8th defendant in hispresence told 2nd defendant that he had felt like squeezing Mr. S. W. R. D.Bandaranaike’s mouth because the latter had given him a telling off.An outburst of this sort must not be taken too seriously.
We are satisfied that none of the charges has been established against8th defendant.
In considering the case of 9th defendant, we have first the suspicionsof Major Rajapakse who said he saw 9th defendant meeting 14thdefendant at the Armoured Corps Mess, and conveyed those suspicions toLieut. Col. Attygalle on January 12th and to younger officers like CaptainsSigera, C.H. Fernando and M. D. Fernando. When it is rememberedthat 9th defendant and 14th defendant are brothers-in-law, havingmarried two sisters, it becomes difficult to attach any importance tothese meetings. They would surely have met in the privacy of theirhomes, rather than an Officers’ Mess, if .they were planning anythingoriminal.
We next had the evidence of Corporal Congreve of the Ordnance Corpswho said he was given a lift by 9th defendant-from the Galle Face Hoteljunction to the Bullers Hoad-Galle Road junction on*. January 10,1962. In the course of that journey 9th defendant, while driving hiscar, is said to have attacked the Government and told Congreve “ It
would not be long before we teach these f.s a lesson. ** From the
cross-examination of Congreve it appeared that the 9th defendant didnot deny giving him a lift, but only conceded having asked him how hewas getting on in the Army.
. Congreve said that he reported this conversation to Abeysinghe onthe next day, but the latter only laughed ; and he also reported it toSigera after January 27th. Sigera said that Congreve drove him fromthe Panagoda Headquarters to the Kendalanda married quarters abouta week or two after January 27th. On a still later day, Congreve drovehim again, and on that occasion spoke about 9th defendant having toldhim that the country was going to the dogs and “ very soon we will
teach these a very good lesson ”. Sigera said that he conveyed
this information to Major Perera. Major Perera confirmed that Sigerahad told him that Congreve made a statement to him in regard to thealleged coup, and he in turn reported that to Lieut. Col. Udugama.Eventually Sigera made a statement about this matter to the Policeonly on April 7th. Major Perera’s statement was recorded on April 12th,but it contains no reference to the 9th defendant. The delay in conveyingthis information to the Police, coupled with the omission of 9th defendant’sname, reduce the weight of Congreve’s evidence considerably.
The prosecution relied on the two extra unofficial Internal Securityplatoons which were standing by from the morning of January 27thin the 3rd Field Regiment as a circumstance against him. By that dayArmy Headquarters had issued orders that only one Internal Securityplatoon should be available, and General Wijekoon said that in thatsituation it would be very unusual for a Commanding Officer to providetwo unless he had some specific reason.
The official platoon on the 27th had to be provided by RegimentalHeadquarters. Lieut. Cadiramen’s evidence that on the 27th morning9th defendant ordered him to have another platoon ready from hisTroop is contrary to his statement of February 6th where he said thathe received no such orders. It is clear, however, from Lieut. Gajendran’sevidence that in addition to the official platoon there had been twounofficial platoons available from December 1961 until January 27th.In view of this, the availability of two unofficial platoons on January27th loses any significance which .might otherwise have been attachedto it.
The prosecution relied heavily on Rajapakse’s evidence about 9thdefendant’s conduct on the night of January 26th which we have alreadyset out in detail. We have given the respective versions of Rajapakse
and 3rd defendant as to what happened and what was said. We takethe view that the meeting of Rajapakse and 3rd defendant that nightwas not at Rajapakse’s but at 3rd defendant’s instance. The invitationgiven to Rajapakse by. 14th defendant was most probably a preliminarymove to enable such a meeting to take place. 9th defendant also playeda part in bringing about this meeting. Since 3rd defendant came fromthe S. S. C. to Bambalapitiya, he appears to have been keen to meetRajapakse.
But the crucial question still remains. Did 9th defendant know whythe meeting between 3rd defendant and Rajapakse was arranged, evenif he did help in bringing it about ? It is here that we are met with acomplete absence of evidence connecting 9th defendant with the con-spiracy at any earlier point of time. It would therefore be wrong toassume that he had any knowledge that 3rd defendant wanted to meetRajapakse in connection with the conspiracy. Rajapakse’s version ofwhat happened after he met 3rd defendant is more than sufficient tobring 9th defendant into the conspiracy at that stage, but it isuncorroborated and we feel it would be unsafe to act on it to the extentof holding that 9th defendant or 14th defendant was present when 3rd- defendant and Rajapakse were speaking to each other. Particularly so,because Rajajpakse’s evidence is in conflict with Vandendriesen’s inregard to some of the incidents of Rajapakse's visit. While Rajapaksehas said that he never left the flat until he went downstairs to meet3rd defendant, Vandendriesen has said that 9th defendant and Rajapakseleft the flat for some time and returned. He was definite that theyleft together and 9th defendant returned before Rajapakse. Even asregards the manner of their leaving the flat, Vandendriesen contradictedRajapakse to the extent of saying that he, Rajapakse, 9th and 14thdefendants came downstairs together, and when he went home to dine theother three went off in another direction to dine. In the face of thesedifferent versions we cannot act on Rajapakse’s evidence alone.
We are left with the meetings at Elibank Road and Kinross Avenue.Presence at those meetings and the receipt of orders from 2nd and 3rddefendants will not convert 9th defendant from a listener to a conspiratorin the absence of words or conduct which prove that he also entered intothe conspiracy.
Some of the observations we have made regarding 9th defendantapply also to 14th defendant. Rajapakse had his suspicions about him ;he invited Rajapakse to his flat on the 27th night very probably in orderthat he might meet 3rd defendant later that night; he attended thetwo meetings of officers on the 27th. But there is no evidence which-satisfies us that 14th defendant ever became a conspirator or even knewof the conspiracy.
Rajapakse has added certain details as to what 14th defendant issaid to have told him at various times. If these things were actually
said by 14th defendant his complicity is established, but Rajapakse’sevidence on these points is again uncorroborated, and we consider thatit would not be prudent to hold those matters proved.u
We revert now to evidence affecting the 4th defendant.
In considering 4th defendant’s defence and evidence, which we havealready discussed, we have also to take into consideration the letter P 181which he wrote to the Chairman, Advisory Committee, on 30th January1962 and which we have not hitherto referred to. It purports to be hisappeal against his detention.
The letter is as follows :—
** The Chairman,
Advisory Committee on Detenus –
Solicitor-General’s Office,
Hulftsdorp, Colombo 12.
Sir,
Reference intimation sent me last night 29.1.1962, by the S. D. & E. A.,
I am hereby appealing to you under Regulation 23 (4) EmergencyRegulations No. 1 of 1962 against my detention.
On Monday 22.1.62 or Tuesday 23.1.62 the I. G. P. Mr. M. W.P. Abeykoon told me that serious trouble was anticipated from about29.1.62 Monday. I asked him what the Information was. He told methat a sudden strike by all the unions, without notice was anticipated ;he told me that there would be violence and then other serious repercus-sions by political leaders. • He ordered me to take all possible pre-cautions—particularly in Colombo. I got up the Supt. of Police ColomboMr. Stanley Senanayake and ordered him to personally instruct his A. S. PPand they in turn their O. I. CC and men. I further told S. P. C. that Iwould personally brief the Gazetted Officers concerned on Saturday27.1.62. The instructions to S. P. C. were (1) To check on all his riotsquads and vehicles (2) ammunition (3) check that all ranks knew theirFiring Orders and how to act correctly, (4) have a list of potential troublemakers. I also asked S. P. Colombo to restrict leave from Thursday24.1. I believe S. P. C. attended to my orders on 24.1.62. Similarinstructions were given to the Superintendents W. P. (C) & W. P. (N).
I believe SP.WP.C. instructed his officers on 26 or 27.1.62. I do not knowwhat S. P., W. P. (N) did because he was very worried about his wife whohad to be rushed down to Colombo Castle St. Hospital on 23 or 24/1 foran operation. I had granted him permission to come up and downbetween Gampaha and Colombo till he took back his wife to Gampaha.
know the X G. spoke to S. P. C. about the anticipated distur-bances because S. P. C. told me so, subsequently, on 25 or 26/1. The I. G.repeated these same fears to S. P., W. P. (C) and A. S. P., Homagama on27/1 at 11.30 a.m. when I produced these 2 officers before him. These
officers had arranged a Nadagama at the Lionel Wendt Theatre in mid
February and requested the I. G. to contact the Governor-General tolend his patronage to their show. The I. G. told these 2* officers that itwould be quite impossible for him to do so because he expected serioustrouble during the whole of February and wanted S. P. W. P. 0. to be inreadiness. S. P. W. P. C. told him promptly that he was ready for anyeventuality. I then suggested that the Nadagama be held in conjunctionwith the Sinhalese New Year celebrations. This was accepted. It willbe seen from the above that I have promptly, diligently, and personally,carried out the I. G.’s orders to me. I now find I am in Welikada ConvictJail for doing my duty. I was brought to Welikade Convict Jail underfalse pretences. On 28.1.62 Sunday I was sleeping peacefully at homewith my wife and children. At about 1.30 a.m. or so I heard a rumblingnoise, the thud of boots and my call bell ringing persistently. I got upand walked to the balcony. I saw 200-300 service personnel surroundingmy house and the whole area. Bren gun carriers were aimed at mybalcony and hundreds of stenguns. Lanchesters and revolvers werepointed at my house. I asked them what all this was about. Someonetold me that I was wanted at Temple Trees by the Prime Minister. I toldhim that I had been hundreds of times to Temple Trees at all hoursboth by day and by night but never before had I been given the honour ofa Service escort. I came downstairs, got into uniform, and opened thedoor. The Servicemen told me that they had orders to search my house.I asked them whether they had a search warrant. They replied in thenegative. As I did not want to alarm my wife and daughters who were bythis time scared to death, I allowed them to search my house. No oneelse excepting my wife, son, 2 daughters and 3 servants were found in myhouse. Nothing incriminating was found. My house was searched byabout 40 Service personnel armed with the most deadly weapons. I wasasked to walk on to the road and then to get into an army vehicle. WhenI was safely in, I was told I was under arrest. I asked to see the warrantof arrest. They said that they had no warrant but that I was arrested onthe personal orders of the Prime Minister. They told me I was beingtaken to Welikade Jail. I asked them what offence I had committed.One officer said “ Sir, please don’t ask us; we don’t know. We are sorryabout this whole show ”. I said “ Right, obey your orders and let’s go. ”
I do not think that a Policeman in any part of the world ever had such anarmed escort from my home to Welikade Jail as I had, mercifully in thesmall hours of 28.1.1962. If I knew I was to be arrested like a commoncriminal I would never have stepped out in uniform to disgrace the Forcethat I have loved for 28 years.
And now, Sir, I am in a convict jail in solitary confinement. I wrote to theI. G. P. on 28.1 morning itself asking him to see me. I heard this morning30.1 through the Jail authorities that the I. G. refuses to see me. I donot know why I was arrested or why I am detained or what the charges areagainst me. No one knows. I can see no one and no one can see me, noteven my wife or son or a lawyer. I was officially told so today by thePrison Authorities. Even a murderer on remand is entitled to and given
c**^- *
many privileges all of which are demedme.'.J ask for justice, and beg thatyou order my release forthwith. Prom' wKat- I "can gather from thenewspapers, and reading between the lines it sterns to me that I have beenvery cleverly made the victim of a carefully planned diabolical' plot.
(Sgd.) Cyril Cy Dissanayaka,Deputy Inspector-General of Police.30.1.1962.
P.8.
I beg that I be allowed to appear before your honour in uniform.
Intld. C. C. D. 30.1.62 ”
The following comments may be made on the statments in the letter :—
Nothing has been said about any disturbances which mightoccur on 27th January, although in his evidence 4th defendant saidthat the Inspector-General of Police on the morning of 26th Januaryasked him the significant question “ Are you ready for tomorrow ? ”On the contrary, he has said in it that the I. G. P. told him on the 22ndor 23rd January that serious trouble was anticipated from about the29th.
Nothing has been said about any talks with the I. G. P. duringthe week prior to the 22nd, when he claimed in evidence that he hadbeen receiving information from the I. G. P. about contemplated arrestsand a house.
The reference to 4th defendant telling Stanley Senanayakethat he “ would personally brief the gazetted officers concerned onSaturday, 27.1.62 ” is presumably a reference to the two conferenceswhich 4th defendant had summoned for the morning and evening of thatday respectively. We are aware now that the briefing at the morningconference was solely directed to the giving of instructions for the arrestof certain Leftists and a Government Party Member of Parliament.But the briefing at the evening conference had nothing that could bejsaid to pertain to the quelling of anticipated disturbances or the arrestof Leftists or trouble makers. It is not difficult to draw the inferencethat the evening conference, and we think also his interviews of thatmorning, were used by 4th defendant solely for furthering the aims ofthe conspirators who plotted to overthrow the Government. 4thdefendant has not said in his letter what he did on the 27th ; nor hashe explained in it how his conduct on the 27th and the day preceding itcould be considered action taken to prevent trouble caused by TradeUnions.
Although he has claimed that he was sleeping peacefullyon Sunday, 28th January, he has omitted to mention the activities inwhich he played a part until nearly midnight on 27th January.
He has further omitted to say a word about any lists of persons tobe arrested having been given to him by the I. G. P. and that one suchlist was put by him in his steel cabinet. The action he had taken toarrest Leftists, the instructions given by him to watch Lieut. Col.Udugama’s house, to guard the houses of the Army and Air ForceCommanders, to trail the Navy Commander, the alleged plan whichhe and 3rd defendant had devised to thwart Mr. Bandaranaike—noneof these matters is mentioned or even hinted at in the letter.
Even if he did not wish to give details of the steps he had taken upto the 27th night for action to be taken by him on that very night, hecould not have failed, by the time he wrote this letter, to realize theimportance of making an early statement of his alleged fears aboutMr. Bandaranaike. He has not said anything on that point, which isthe foundation on which his entire defence has been raised. He couldhave done so, without mentioning by name anybody who was withhim in the alleged counter-plan. He has admitted that he did notdisclose the alleged counter-plan to anybody, after his arrest, until hedisclosed it to his Counsel Mr. Wikramanayake on 20th February.
He has said in evidence that in this letter he stated the facts“ except this counter-plan thing, about thwarting Mr. Felix Dias. ”It is very difficult to reconcile this letter with his evidence.
The Crown relies on the evidence of a number of witnesses from the'Police Training School, Katukurunda, to establish the charges against the1st defendant Douglas Liyanage, the 4th defendant C. C. Dissanayake, the•6 th defendant Sidney de Zoysa, the 19th defendant T. V. Wijesinghe apartfrom the other evidence led in the case against them. The evidence ofsome of these witnesses tends to support the case against the 21stdefendant.
H. Brohier A. S. P. was the Director of the Police Training School.
S. Orr was the Deputy Director and V. K. Arumugam was the A S PAdministration under Brohier. The 5th defendant had been the Directorof the Training School for a number of years. He subsequently became a
I. G. of Police and was thereafter appointed as Permanent Secretary toa newly created Ministry of Security, and the police department was placedunder this Ministry. Brohier had served under the 5th defendant both atthe Training School and at Panadura. At the relevant time, the 5thdefendant had been retired from the public service and was running aprivate agency called the Sidney de Zoysa Agency which did privatedetective work and other business.
He had filed an application in the Supreme Court challenging thevalidity of his retirement and had appealed to the Privy Council fromthe decision against him in the Supreme Court. He was, at the re’evanttime, hoping to succeed in his appeal and to get back his position in thepublic service. He had expressed this hope to Arumugam when thelatter sought his assistance to obtain an extension of service in the PoliceForce &nd a deferment of his retirement. Arumugam’s retirement hadihen been recommended by the I. G. P.
Stanley Senanayake S. P. had succeeded the 5th defendant as theDirector of the Training School and had held this post for 4 or 5 years.He was transferred &sj3. P. C. I. D. a few months before the alleged coup,and after a very short period in that post, he was appointed S. P.Colombo, under the 4th defendant who was then D. I. G. Range 1.Brohier succeeded Senanayake as the Director of Training.
Brohier has testified that the 6th defendant and his wife visited himat his bungalow at the Training School on 25.1/62 about 9.45 p.m. The5th defendant requested him to get him four telephone calls to Wcera-singha, A. S. P. Bandarawela, K. S. Perera, S. P. Uva of Badulla, Wera-pitiya, S. P. N. C. D. of Anuradhapura and Van Sanden, A. S. P. 1ST. P.of Jaffna. Brohier obtained these calls, under his own name, for the5th defendant through the Training School telephone exchange.
The 5th defendant also requested him to get up Orr and Arumugamas he wanted to speak to them. Brohier telephoned to one of them andgot them down. Orr has not given evidence in this case as he was deadat the time of this trial. Arumugam has testified to the fact that onreceipt of a telephone message from Brohier, he came to Brohier’s housewith Orr and met Mr. & Mrs. Sidney de Zoysa there.
The Counsel for the 5th defendant has not challenged the evidencefor the Crown that the 5th defendant visited Mr. & Mrs. Brohier on thenight of 25.1/62 and requested Brohier to obtain the four telephonecalls referred to nor the fact that the 6th defendant had met Orr andArumugam at Brohier’s house that night.
With reference to the telephone calls, Weerasingha was not at home.The call to Van Sanden was not audible. Brohier spoke to K. S. Pereraand handed the receiver to the 5th defendant. The 5th defendant spoketo K. S. Perera about some difficulty he had about the transport of cashto estates in that area, and arranged to meet Perera at Welimada inthe Uva district the following morning.-
Brohier says that after they failed to contact Weerasingha and beforethe call to K. S. Perera came through, the 5th defendant told him that
K.S. Perera would be able to get round Mr. Jayatilleke of the SinhaRegiment. According to Brohier, the Sinha Regiment was stationedat Diyatalawa in the Uva Province and Jayatilleke was one of the officersof that Regiment.
The 3rd call to come through was to Mr. Werapitiya. Brohier receivedthat call and gave it over to the 5th defendant. The 5th defendantreminded Werapitiya of a conversation they had about a month earlierand said that he wished to enter the timber trade. He arranged to meetWerapitiya at the latter’s bungalow late the next day. The last callto come through was the ineffective call to Mr. Van Sanden of Jaffna.
Apart from the remark alleged to have been made by the 5th defendantabout Mr. Jayatilleke and the Sinha Regiment, the subject of the tele-phone conversations with K. S. Perera and Werapitiya was apparentlyinnocuous. The transport of cash to estates was a service undertaken
by the 5th defendant's Agency. The relevancy of these telephone calls isto support other evidence in the case that the 5th defendant was goinground tbe Provinces to solicit the support of high-ranking police officersto a plan to overthrow the government, the execution of which was thenvery imminent. By these calls the 5th defendant had arranged to meetthe S. P. Uva and the S. P. N. C. D. on the following day.
Brohier stated in evidence that the 5th defendant took him to thecorridor leading to the annexe just as Orr and Arumugam came to hishouse, and spoke to him about a plan to overthrow the government. Theywere alone at the timel While the 5th defendant was telling him theparticulars of this plan, the telephone calls came through and theyattended to them and continued this conversation.
The 5th defendant has not given evidence in this case, but the defencechallenges the veracity of the testimony of Brohier and Arumugam withregard to the conversations that the 5th defendant is alleged to have hadwith them separately on this occasion about a plan to overthrow thegovernment.
According to Brohier, the 5th defendant told him that he was comingfrom Galle and had come to see Brohier on behalf of C. C. Dissanayake(4th* defendant). The Training School did not come under the 4thdefendant’s range. It was under the control of Mr. Wambeek, D. I. G.,Administration at the time. The 5th defendant told him that he had aletter from the 4th defendant to two police officers to give him allassistance and offered to show him this letter, but he accepted the 5thdefendant’s word for it.
Brohier stated that the 5th defendant told him that the 4th defendant,Army officers, 6tli defendant who was formerly the Gap tain of the Navyand the 5th defendant had planned a coup. The plans had been finalizedto be put into effect on 27.1.62. His Excellency the Governor-Generalwas in the know and would come in. They were to arrest Ministers,Leaders of Opposition Parties and Leftists, Colonel Udugama, ColonelAttygalle and Commodore Raj an Kadirgamar. The houses of the ArmyCommander General Wijekoon and the Air Force Commander Air ViceMarshal Barker were to be surrounded and they were to be kept underhouse-arrest. Groups were formed to arrest the I. G. P. Mr. Abeykoon,the D.I. G., C. I. D. Mr. S. A. Dissanayake and the S. P., C.I. D.Mr. JohnAttygalle. Orr would be in the group to arrest Mr. S. A. Dissanayakeand Arumugam in the group to arrest the I. G. P. The 6th defendantwould be the Captain of the Navy as he had the support of these men.
The4thand 5th defendants would takeover the Police Headquartersabout 10 p.m. on 27.1/62 and later that night they would go with Armyofficers-to Queen’s House. The Governor-General would dissolve Parlia-ment and would ask the 5th defendant to take over the governmentwith the assistance of the Army and the Police.
. The 5th defendant also told him that 4th defendant and he had madefriends but it was not shown outwardly. It is an accepted fact in thiscase that the feelings between the 4th and 5th defendants were bitterlystrained for several years prior to these events, though, they had beenveiy close friends during their earlier years in the police force.
According to Arumugam, as he went up with Orr, the 5th defendant’sear was being attended to, as he had some ear trouble. After that the5th defendant called Orr and him to the corridor and spoke to them abouta coup. Before this conversation and in the course of it, some telephonecalls came through and Brohier and 5th defendant attended to them.Brohier was walking up and down the corridor between the bungalowand the annexe at this time. The telephone was in the annexe. Hedid not see the 5th defendant having a conversation with Brohier in thecorridor before 5th defendant spoke to them.- •
He says that 5th defendant told them (Orr and Arumugam) that actionhas to be taken 48 hours from that time and that they had been chosen todo two important jobs. Arumugam had to arrest the I. G. P. and Orrhad to arrest Mr. S. A. Dissanayake D. I. G., C. I. D. They were to betaken to the armoury at Army Headquarters after their arrest. Thepass word was “ Yathura ”. 4th defendant was responsible for the policearrangements and the army officers for the army arrangements.
Arumugam says that he was alarmed that he had to arrest the I. G. P.He took 5th defendant to a side and told him that he was not tempera-mentally suited for this and would like to be excused. He would beconsidered ungrateful to the government if he did anything against them.6th defendant then told him, “ don’t panic, don’t show cold feet. Ifyou let us down at this time, the bullet will be the answer.” 5th defendantthen asked them to come to his bungalow at 3 p.m. the next day, andwanted them to find men from tJio.School for their assignments.
Soon after the conversation, 5th defendant and his wife left the bunglow.Brohier says that he had a short conversation with Orr in the garden afterthe Zoysas left. Arumugam was also present but took no part in thistalk. He told them “ this is a most dangerous thing. We should try toget out of it ”. Orr said something in reply. Brohier said “ it is ratherlate now, let us discuss this to-morrow ”. Thereafter Orr and Arumugamleft. Arumugam says he does not remember any conversation betweenthem after the Zoysas left.
Brohier says that this was the first information he had of any attemptto overthrow the government. Arumugam says that he had certainearlier conversations with 1st defendant and 5th defendant about thissubject. He was friendly with the 1st defendant. He was A. S. P.Mannar when 1st defendant was the Government Agent there and theyhad come into close association at that time. Arumugam had reached hisoptional age of retirement in 1961, and on the recommendation of the
G. P., the government proposed to retire him from service.
Arumugam was making every effort to obtain an extension of service.He obtained the assistance of the 1st and 5th defendants to draft his.petition of appeal to the P. S. C. for this purpose. He also sought their,assistance to use their influence with certain persons in authority to*obtain this extension. He even obtained the assistance of Mr. Monne-kulame, M. P. for Kurunegala and a member of the S. L. F. P., which wasthe government party, to place his case before the Prime Minister.Mr! Monnekulame was also a friend of his. A temporary extensionof service was granted to him towards the end of 1961, and finallyabout the 23rd of January, 1962 he was granted the extension of servicewhich he was seeking.
. In this connection, Arumugam says he met the 1st defendant at thelatter’s bungalow on the 7th or 8th of December, 1961 when he came toColombo in connection with the Police Inter-District Swimming Competi-tion. 1st defendant was at this time the Deputy Director, Land Develop-ment, Colombo. On this occasion 1st defendant asked him if the 4thor 5th defendant was more popular in the Police Force. He said that the4th defendant was more popular, and inquired from the 1st defendant whyhe asked about this. 1st defendant then told him that he had some armyofficers, and was trying to contact a police officer to fix police officers tostage an overthrow of the government. He asked 1st defendant whyhe was contemplating such a move. 1st defendant spoke about theeconomic situation of the country and the deterioration of our foreignassets, and said that he would be meeting 4th defendant soon on thismatter.
He stated at ‘ Temple Trees * on 2nd February, that he knew the 1stdefendant was in this plot as he had asked him about three weeks earlierwhether the 4th or the 5th defendant was more popular in the policeservice. On 23rd March, he fixed the date of this conversation as on the7th or 8th. December, 1961 by reference to the Officers’ MovementsRegister, which showed that he had come to Colombo on those dates forthe Police Swimming Competition. His statement on 23rd March wasin accord with his evidence in this case about this conversation.
Both the 1st and 4th defendants admitted that the 1st defendant metthe 4th defendant at Police Headquarters a day or two before the tokenstrike of 5th January. They and the 19th defendant stated that the1st defendant came there to discuss an official matter concerning thestorage of ammunition belonging to the Land Department.
Arumugam stated that he met the 5th defendant at the Police Messabout 6.45 p.m. on 7th January. This was the day that the body ofS. I. Banda was being taken from KalUtara to Kandy. He heard that thehearse taking this body had given some trouble at Kalutara North andthe body had been transferred to another hearse. He came up to VictoriaBridge, Colombo, in his car in search of this hearse but could not catchup with it. Then he went to the Police Mess in Colombo. The 5thdefendant took him fora drive on this occasion and discussed with liim
the loyalty of various police officers to the 5th defendant. Arunrugaxntold the 5th defendantthat 21st defendant S.P.,Galle, and K. S. PereraS. P., Uva, would be loyal, to him. 5th defendant said that WerapitiyaS. P., N. C. D., will be loyal and that the 4th defendant wouldlook afterThambiah, S. P., Matara, and the Colombo Division officers and thatJilla S. P., N. W. P., was jittery.
Aromngam then told the 5th defendant that the 1st defendant haddiscussed about the overthrow of the government and asked the 5thdefendant what this was all about. The 5th defendant told him, “ Don’tworry, plans are going ahead. You will be informed when everything isfinalized”. The 5th defendant also told him that efforts were beingmade to get the 4th defendant and him together.
In Arumugam *s statement to the C. I. D. on 23rd March, he fixed thedate of this conversation with the 5th defendant as 8th January, whichhe said was the 2nd day of the Police Swimming Competition. This wasobviously a mistake, as he had in that very statement fixed the datesof the Swimming Competition as the 7th and 8th December by referenceto the Officers’ Movements Register. On 26th March, he corrected thismistake and stated that he went out for a drive with the 5th defendanton 8th December, the 2nd day of the Swimming Competition, but noconversation of this subject took place on that day. He said that theconversation about the loyally of the police officers took place on 7thJanuary when he came to Colombo in search of the hearse. He met the6th defendant on that day at the Police Mess and went for a drive withhim when this conversation took place.
The defence alleged that Arumugam was influenced by the C. I. D.officers to put back the date of his conversation with the 1st defendantto the 7th or 8th December as it did not tally with his statement abouthis conversation with the 5th defendant on 8th January, which he subse-quently fixed as 7th January. We see no substance in this allegation asArumugam first mentioned about this conversation with the 5th defendanton 23rd March and he could quite easily have said that it took place ona later date without correcting his earlier statement, if he was coachedby the C. I. D. officers to avoid a discrepancy in the two conversations.Even if the conversation with the 5 th defendant took place on the dayafter Arumugam *s talk with the 1st defendant, there was no inconsistencyin the evidence.
Arumugam stated that he visited the 1st defendant before the tokenstrike, probably on 2nd January, at his bungalow in the evening. 1stdefendant told him that he had met the 4th defendant and had discussedthe overthrow of the government with him. 4th defendant had promisedto look after the police side of it. 1st defendant also told him that hecould not get at the Army Commander, Colonel Attygalle of the Armyand Rajan Kadirgamar of the Navy. The 14th defendant was to be theChief of Staff and he was expected to give orders to the Army. In the
2nd part of his statement on 23rd March, Arumugam had mentioned thatthe 1st defendant told him that the Army Commander, Colonel Attygalleand Rajan Kadirgamar could not be got at..'
Arumugam was at Kurunegala from the 22nd to the 24th January inconnection with a Supreme Court case. During this period, he receivedinformation unofficially that his application for an extension of servicehad been granted. The case was concluded about 4 p.m. on 24th January,and he returned to the Training School that night. On his way home, hevisited the 1st defendant to thank him for helping him to obtain anextension of service. On this visit, he says that the 1st defendant toldhim that the plans had been finalized and action would be taken at anytime now. The 5th defendant would be coming down south the followingday to meet them and to give the details.
Arumugam was beholden to 1st and 5th defendants for the assistancethey gave him to obtain an extension of service. He was quite friendlywith them at the time of these incidents. He had no reason to falselyimplicate them, except as a price to obtain his own pardon. One canwell understand an attempt on his part to shield them as far as possiblewithout grave danger to himself. The 4th defendant had taken certainaction against him in the course of his duties, and had recommended to*the I. G. Pf that he should be retired on his reaching the optional age ofretirement, without any extension of his term being granted. When5th defendant was in the Police Force he had always shielded Arumugamwhen the 4th defendant took any action against him. He even remittedpunishments imposed on Arumugam when he came into power.Arumugam has not given evidence against the 4th defendant in thiscase, except to say that Brohier asked him to send the ammunitionthrough S. I. Siri Chandra as D. I. G. Range 1 wanted them.
Arumugam stated that he withheld information against 1st and 5thdefendants as much as possible and only disclosed such informationas he knew had come to the knowledge of the investigators. On 2ndFebruary, at ‘Temple Trees*, he was confronted with Orr. Orr wasquestioned in his presence about the visit to the 1st defendant on 26thJanuary, and what transpired there. He then realized that Orr haddisclosed the evidence which Brohier, Orr and he had decided to suppress.He then disclosed the evidence which Orr was aware of but suppressedthe other evidence against the 1st and 5th defendants.
Though Arumugam may be speaking the truth when he said that hetried to suppress the evidence against the 1st and 5th defendants asmuch as possible when he made his statements, we do not propose torely on his evidence of the conversations he had with the 1st defendanton the 2nd and 24th January, or with the 5th defendant on 7th January.
Efe also did not mention on that occasion that the 1st defendant toldhim that he had some Army Officers and was trying to contact a PoliceOfficer to fix Police Officers to overthrow the government, when he
asked him about the popularityof the 4th and 5th defendants in thePolice Service. However, he did mention that he was aware that the. 1st defendant was in this plot as a result of that talk. In view of this:disclosure on 2nd February, coupled with the circumstances set outearlier, we are accepting Arumugam’s evidence of this conversation.
Arumugam’s evidence is that he introduced Orr to the 1st defendantas a person who had been detailed a job for the coup on Saturday night.1st defendant then said that he was glad to know it and the coup wasgoing to be a 100% success and if it fails, it will be the Act of God. Thisevidence too indicates that the 1st defendant knew of the coup andthat Arumugam was in it.
On 26.1.62 about 6 a.m. Arumugam telephoned to the 1st defendantat his bungalow and told him of the 5th defendant’s visit and that hetad given them the details of the plan and that they were coming to seethe 5th defendant at 3 p.m. that day. The telephone register (P4) of theTraining School shows that A.S.P. Administration has made a telephonecall to the 1st defendant's bungalow at that time. 1st defendant saysthat Arumugam telephoned to him on the 26th morning to thank himfor his help as Arumugam had been granted an extension of his service.
Brohier has stated that on 26.1.'62 at 6.30 a.m. there was a telephonecall from the 19th defendant through police headquarters. 19thdefendant wanted S.I. Siri Chandra urgently, and requested him tooblige him by sending Siri Chandra to Colombo to meet him. Brohieragreed to do so.
* • i
Brohier informed Siri Chandra accordingly that morning. He alsoasked Siri Chandra to obtain some official information from the CentralGarage, Narahenpita, Colombo. This was mainly to give an official coverfor this trip. He also directed Sgt. Subramaniam of the Training Schooltraffic branch to take Siri Chandra to Colombo on a motor-bicycle.
In view of a previous telephone call from the 4th defendant in hisabsence, Brohier telephoned to him about 7 a.m. on 26th January. 4thdefendant asked him to bring some packs of cards when he came topolice headquarters that afternoon for the Police Sports Club committeemeeting.
; At a committee meeting of the senior staff mess held on 25.1.'62 atthe Training School, it was decided to hold a passing out dinner on 27thJanuary. This decision was confirmed at the general meeting of themess held on 26.1.’62 about 8 or 9 a.m. Brohier stated that beforethis decision was made at the general meeting, Orr, Arumugam and hehad decided to postpone this dinner in view of the information givenby 5th defendant on the 25th night that the coup will be staged on the27th night and Orr and Arumugam will not be available as they hadassignments in Colombo for that night. About 10 a.m. on 26.1.'62 acircular was sent round signed by Orr, the newly elected President of
the mess, postponing the passing out dinner. There is ample evidencein the case to prove these facts, supported by the minute-book of themess.
Brohier says that Sin Chandra reported to him about 9 or 9.30 a.m.that day at his office and said that he met the 19th defendant at hisbungalow. 19th defendant informed him that a coup had been plannedby the 4th and 5th defendants for the following day and asked him tocome to 19th defendant’s bungalow on the 27th afternoon with a set ofuniforms as he had a job to do. It may be noted that Siri Chandra .had worked under the 19th defendant when he was an A.S.P. attachedto the Training School.
. It has been suggested in cross-examination that the decision to post-pone the dinner was taken after, and therefore, because of the informationbrought by Siri Chandra on the 26th morning. It is immaterial tothis ca~e whether Brohier, Orr and Arumugam had already decided topostpone the dinner when the date was fixed for it at the mess meetingor they took this decision after Brohier received the confirmatoryinformation given by the 19th defendant through Siri Chandra.
Tiie postponement of the passing out dinner fixed for the 27th at thecommittee meeting held on 25.1.’62 by a notice sent round on the 26thmorning, confirms the evidence of Brohier and Arumugam that the 6thdefendant brought them information on the 25th night that the coupwas fixed for the 27th night and Orr and Arumugam were wanted inColombo to carry out their assignments. If Siri Chandra had returnedfrom Colombo on the 26th morning with the information from 19thdefendant, before this notice was sent out, it would have been an addedreason for the postponement of the dinner, as this information confirmedthat the coup was to take place on the 27th night. On the evidencehowever, it is doubtful if Siri Chandra returned to the Training Schoolbefore the notice was sent out.
On the 26th afternoon, before the Sports Committee meeting, Brohierhanded the packs of cards to the 4th defendant. The packs were for thePolice Mess and 4th defendant directed a cheque to be given to Brohierfor them. The 19th defendant was also present. Then 4th defendantasked him “ did that mad beggar come to meet you ? ”. He asked “Who ? ”and 4th defendant said “ That fellow. Where the hell is he ? He hasto be at a meeting at 4 o’clock ”. Brohier says that he understoodthat the 4th defendant was referring to Sidney de Zoysa as Zoyea hadtold Lim the previous night that he had a meeting in Colombo that dayand that in all probability he will come. So he told the 4th defendantthat Zoysa was going to Uva and knew about the meeting.
The 19th defendant reminded the 4th defendant about the TrainingSchool ladders and ammunition. Then the 4th defendant asked Brohierto send the ladders he had in the school the following afternoon to theFort Police Station to Johnpulle, A.S.P. Traffic, Colombo. The 4th
defendant also asked him to send some sterling gun ammunition onreceipt of an order from the Depot. 19th defendant told Brohier thatit could be sent by Siri. Chandra when he came to Colombo.
. Brohier says that he made an entry in his diary (P5) after this con-versation at the office of the 4th defendant, under date 27.1.’62. Theentry in P5b now reads, * 3 p.m. ladders. Traffic office Colombo ’. Hesays he also wrote under that entry c sterling gun ammunition Hewrote the entry to remind him to send the ladders and ammunition. on the 27th. On 31.1/62 when the C.I.D. officers had come to theTraining School to investigate, he scrubbed off the entry * sterling gunammunition ’ and entered over it ‘ 4 p.m. to 6.30 p.m. tennis'.
This conversation about the ladders and ammunition is partly admittedby the 4th defendant with certain variations. The 4th defendantdenies the conversation about the mad beggar and the meeting whichhe was expected to attend. He says that Stanley Senanayake, S.P.Colombo had asked him if he could get men and equipment from theTraining School. Senanayake who was the Director of Training beforeBrohier, told him that he could rely on the Training School men morethan the officers of the Colombo Division. The 4th defendant toldSenanayake to get anything he wanted from the Training School andthat he would inform the C.I.D. Administration about it.
. The 4th defendant says that on the 26th afternoon, Brohier told himthat Senanayake wanted some officers, men and ladders from the TrainingSchool and Vanden Driesen A.S.P. Depot, wanted some ammunition.He told Brohier to give them anything they wanted as these weretroublous times and that he had informed Mr. Wambeek, D.I.G., Admi-nistration, who was in charge of the Training School. The 19th defendantdenies that he either reminded 4th defendant about getting down ladders°nd.ammunition from the Training School or asked Brohier to sendthe ammunition by Siri Chandra.
Arumugam stated that on 26.1/62 about 1 p.m. Orr and he left theTraining School in his car and went to 5th defendant’s flat about 3 p.m.The 5th defendant asked them if their plans were ready. Hs asked the5 th defendant for some clarification of what they had to do. He askedhim where they were to assemble, what kind of attack they shouldmake. He said that he was not familier with the place where the I.G.P.lived. The 5th defendant then told them that he lived at No. 85, BarnesPlace and asked them to study the location. He also told them to keeptheir men at a convenient spot away from his bungalow. He askedthem to come again at 6 p.m. as he had to see a doctor re his ear trouble.Arumugam asked him if they could see the 1st defendant in the intervaland the 5th defendant said ‘ Yes, go along and come back at 6 p.m/
About 4.15 p.m., they went to the 1st defendant’s house. Arumugamintroduced Orr to the 1st defendant as one having an assignment in thecoup. He inquired from the 1st defendant how things were. The 1st
defendant told him, ** It is going to be a 100% success. If it fails, at•will be tbe Act of God ”, The 1st defendant was worried about the 14thdefendant. He said that the 14th defendant was jittery and would notbe able to give out the orders as expected of him. Arumugam toldthe 1st defendant that he was feeling sick and would not be able toparticipate. The 1st defendant told him, “do not panic”.
They witnessed a football match at Echelon Square and went to 5thdefendant’s flat about 6 p.m. The 5th defendant handed a closedenvelope to Orr to be given to Brohier. He signed two letters andgave one to Orr and one to Arumugam, and told them they were Detention*Orders. He wrote an unsigned note in their presence and gave it toOrr, and told them to go down south and show the note to V. E. Perera,21st defendant, at Galle and David Thambyah (the discharged 22nddefendant) at Matara. The 5th defendant then asked them to go awayand come back the following day at 8 p.m. ready to do the job. Theyreturned to the Training School.
Brohier states that he returned to the Training School on the 26thevening and attended a film show there. After the show, Orr gave him aletter, which he destroyed on 29th January. He went with Orr toArumugam’s bungalow, and told him the instructions given by the 4th( defendant and asked him to send the ammunition and the laddersthrough Siri Chandra.
On 27.1/62 about 7.30 a.m., Arumugam came to his bungalow anddiscussed about the sending of ammunition and told him that he wouldnot go through with this and that one of them should inform the 5thdefendant. He told Arumugam that he was not prepared to send men;and asked Arumugam to go with Orr and inform the 5th defendantthat Brohier will not be coming that night and that he would not sendmen.
Arumugam says that Brohier came to his bungalow with Orr about8 p.m. on 26.1/62 and asked him to send 10 magazine loads of sterlingammunition through Siri Chandra the folio-wing morning as D.I.G.Range 1 wanted them. Either that night or the next morning, Brohiertold him to send the ladders.
About 8 a.m. on the 27th, Arumugam went to Broliier’s bungalow1.He says that he informed Brohier that he was not prepared to participatein this and Brohier told him, “ If I knew that Orr and you were givenassignments, I would not have allowed this ” and that he would notsend men from the Training School at any cost. He asked Brohierto inform the 5th defendant that he would not participate, and Brohiersaid that he would send Orr to inform the 5th defendant.
On 27.1/62 about 9 a.m. Arumugam ordered the armourer Sgt. Jamesto load 10 Sterling, 1 Lanchester and 1 Sten magazines and send themto his office, as he wanted to test them. The Sgt. sent the loaded maga-zines as ordered, and made an entry in the Armoury Inventory Book.Arumugam says he ordered the Lanchester and Sten magazines to
avoid suspicion and told the Sgt. that he wanted to test them, to hidethe real purpose for which they were taken. He ordered P.C. Anthonyto pack the magazines and to deliver the parcel to S.I. Siri Chandra.P.C. Anthony packed them and delivered the parcel at Siri Chandra'shouse that morning as Siri Chandra was not at home. Arumugamordered Sgt. Subramaniam, O.I.C. Transport, to send as many laddersas possible to the Traffic Office, Colombo. Arumugam says that hemade an entry in the Officers’ Visiting Book that he ordered the armourerto send the loaded magazines for testing.
Arumugam says that he was not feeling well on the 27th evening andhe went to see his doctor. He was advised to rest. He had some heartailment for some years before this. Thereafter he went to a friend’shouse at Kalutara and waited there. He sent his car and driver to Orr,and asked his driver to inform him that he would meet Orr in Colombothat night and that Orr could use his car to go to Colombo if he wantedit. His object was to avoid going to Colombo as directed by the 5thdefendant and to avoid meeting Orr. In fact, he did not go to Colombothat night.
Brohier did not release any men from the Training School for theassignments given to Orr and Arumugam by the 5th defendant. He or Jyallowed S.I. Siri Chandra to go to the 19th defendant as directed by thelatter and he allowed Orr and Arumugam to do as they pleased. Arumu-gam kept back, but Orr proceeded to Colombo with the men that hegot down from Galle through the 21st defendant. As the action con-templated by the 4th, 5th and 3rd defendants did not take place, Orrand his men were not called upon to carry out any assignment. Theconnection between Orr and 21st defendant and the action ti ken bythem in furtherance of the alleged conspiracy will be dealt with laterwhen we consider the case against the 21st defendant.
Siri Chandra has stated in evidence that on the mor. mg of the 26th,Brohier informed him that the 19th defendant wanted him at his bur ga-low. He was asked by Brohier to go there and also to attend to someofficial business at the Central Garage, Narahenpita. Sgt. Subramaniamwas ordered by Brohier to take Siri Chandra to Colombo on a motor-cycle.Siri Chandra made an entry in the routine I.B. at 7.30 a.m. on 26.1.62that he was leaving to Colombo on the orders of the Director of Training.There was no reference in this entry about his going to meet the 19thdefendant. This visit was being kept secret. Siri Chandra did notknow the 19th defendant’s house. On the way to Colombo, he askedSgt. Subramaniam to take him to the 19th defendant’s house. TheSgt. knew thi3 bungalow and took him there. This bungalow wasat MacCarthy Hoad. He met the 19fch defendant at his bungalow.He occupied the upstair portion of this bungalow. The 19th defendanttold him that the 4th and 5th defendants had planned a coup for thefollowing day. He was asked to inform Brohier of this. He was toldto come the following afternoon to 19th defendant’s bungalow as he
7R 7431 (7/65)
354JUDGMENT"OF COURT—T/ic Queen v. Liyanage and othira
.—■n-nnif-l ; i: a_—<- …..
had a job to do there to attend to the telephone. He wae asked tocome in civils, but to* bring a set of uniforms. Thereafter he went to the'Central Garage and'attended to the work given to him and returnedto the Training School about 11.30-a.m. He reported immediately toBrohier and told him'what the 19tii defendant had told him and alsogave him the information he obtained from the Central Garage. There-after he made a return entry at 12.30 p.m. about his trip to the CentralGarage but made no entry about the visit to the 19th defendant.
Sgt. Subramaniam stated that he was ordered by Brohier to takeS.I. Siri Chandra to Colombo on his motor-cycle. He did so. SiriChandra asked him to take him to the 19th defendant's bungalow.He did so and told Siri Chandra that 19th defendant lived in the upstairsof the bungalow.
Siri Chandra went upstairs and after some time came down with the19th defendant and his daughter. 19th defendant and his daughterwent out in 19th defendant's car. He took Siri Chandra to the CentralGarage. The motor-cycle was giving a little trouble and he got it attendedto while Siri Chandra attended to his work there. Thereafter he broughtback Siri Chandra to the Training Sohool and made an entry in theR.I.B. of the Traffic Branch.
‘in that entry (P39 B) made at 1.10 p.m., he has stated ‘Visited HeadQuarters with S.I. Siri Chandra, Narahenpita Central Garage… .andback to School*. There is no reference here to the visit to 19th defend-ant's house at MacCarthy Road. He stated that the entry * visitedHeadquarters ’ was wrong and due to a mistake. A Daily RunningChart (P40) is maintained for this motor-cycle in which they travelled.An entry (P40 A) has been made in that book for this trip—by P.C.Kasthuriratna and it is initialled by this witness. According to thisentry, this trip is described as follows:—“26.1.62—on orders of the Directortc go to Colombo with Sub-Inspector Siri Chandra—Out 6.55 a.m.—In
10 p.m.—Prom the School to go to MacCarthy Road, Central Garageand return—65 miles.” . There is a reference in this entry to the visitto MacCarthy Road. The 19th defendant lives on MacCarthy Road.There is no reference in this to a visit to Police Headquarters. Thisentry if genuine, strongly corroborates the evidence of Sgt. Subramaniamand S.I. Siri Chandra about the trip to 19th defendant's house and theevidence of Brohier relating to that trip.
The 19th defendant denies that he asked Brohier to send S.I. SiriChandra to him or that Siri Chandra visited him on the 26th morning orthat he told him of a coup planned by the 4th and 5th defendants.
Mr. Kannangara addressed us at length on toe contradictions inthe evidence of Siri Chandra and Subramaniam when they gave thedetails of their departure from the Training School, their journey to19th defendant’s house, and their return to the Training School onJanuary 26th. It would take many pages if we were to recount his
arguments and examine them in detail. He suggested that pages hadbeen fraudulently extracted from the book P40 and new entries maderelating to the journeys of that morning; that the different versionsof Siri Chandra and Subramaniam could not possibly be consistentwith journeys they actually made ; that the services of P.C. Kasturiratnehad been obtained to fabricate entries; and that Kasturiratne couldnot possibly have made the entries produced at the time he claimedto have made them in view of the inoculation he had received thatmorning. He asked us to believe 19th defendant in preference to SiriChandra and Subramaniam on this part of the case.
We have considered his arguments, and are satisfied that his chargeof dishonest conduct against these officers is groundless. We alsohold that there has been no dishonest conduct in regard to the book P40.There i3 no evidence that every book like P40 has 31 pages, even thoughthe two books 19D25 and 19D26 have 31 pages each. The contents ofthe books, in regard to the printed matter, is certainly different as may beseen when the number of pages containing monthly summaries areexamined. We accept the evidence of Siri Chandra and Subramaniamabout this visit. Subramaniam was sent to provide a means of transportand not because Siri Chandra could not otherwise find his way to 19thdefendant’s house. Siri Chandra took the parcel of ammunition to 19thdefendant’s house on the 27th because 19th defendant had asked Brohierto send it there.
With regard to the telephone call which Brohier said he received from
19th defendant earlier on the 26th morning, in consequence of which
he sent Siri Chandra to meet him, it is the prosecution case that the call
was actually booked through Police Headquarters although the Trunk
Call Ticket (P136) has the number ‘ 79861 * altered to ‘ 79821 ’ (the
latter being the telephone number of Police Headquarters). No.
79861 is the telephone number of the Labour Office. The curious fact is
that Deither the Telephone Register of Police Headquarters nor the
Telephone Register of the Labour Office has a booking of this call entered
in respect of 26th January, although it is beyond doubt that such a call
went through at 5.58 a.m. to the Police Training School. We think that the
call originated from * 79821 ’ to Kalutara 365 .and the alteration in the
Trunk Call Ticket was a genuine one. It was in respect of a call made
by 19th defendant to Brohier that morning, in consequence of which
Brohier sent Siri Chandra to 19th defendant. The witness Javaratnam
*
who wrote out the ticket P136 has. given evidence about it which we accept.
Siri Chandra says that when he reported to Brohier on the 26th afterhis return from Colombo, Brohier gave him leave for the 27th and a kedhim to report to him the next day and that he would give Siri Chandraa small parcel to be given to the 19th defendant. This does not conformto Brohier’s evidence, as he was only told about 3 p.m. that day to sendthe ammunition.
As ordered, S'ri Chandra says that he reported to Brohier on the 27thmorning and he was told that the parcel would be sent to bis bungalow.P.C. Anthony delivered the parcel of ammunition at Siri Chandra’? bousein his absence, on the orders of Aromugam. Siri Chandra left the Train-ing School about 9.15 aon. on the 27th for Colombo, having made anout entry in P7 (page 37). He took this parcel with him in a suit case andtravelled to Colombo by bus. He reached Colombo about 1 p.m. andwent to the 19th defendant’s bungalow and handed the parcel to him.The 19th defendant asked him what it contained. He said he did notknow. The 19th defendant took the parcel inside and asked him to sitin the verandah and wait. He was there till 7 p.m.
About 6.30 p.m. 19th defendant left in his car. About 7 p.m. the4th defendant came there in his car, with a police driver. After inquiringfrom Mrs. Wi jesingha about his identity, 19th defendant took Siri Chandrain his car to his residence about 7.20 p.m. About 10 minutes later, the4th defendant asked him to go to Johnpulle’s bungalow next door. Hewent there and stayed in the verandah. The 20th defendant was down-stairs. Siri Chandra told him who he was, that he wap sent by Brohier,and that the 4th defendant had asked him to come there. The 20th. defendant then asked him to sit in the verandah. About 40 minuteslater, Johiipulle came there and ho gave him the same information.
4*
While he was there, 4th defendant came there on two or three occasionsand the 19th defendant too came there later. About 11.30 p.m. the4th, 19th and 20th defendants and Johnpullo dispersed. 19th defendantdrove Siri Chandra in his car to his bungalow and asked him to sleepthere. He dozed on a settee till about '2 a.m. Then the 19th defendantspoke to him and told him that there had been trouble and that the 4thdefendant had been taken into custody. 19tb defendant asked him toget baok to the Training School, and said that his house may also besearched. When he came downstairs to go away, the 19th defendantgave him 3 Sterling guns wrapped in paper and asked him to give them toBrohier. He put the guns into his suitcase and went to the junction.He got into a taxi there and went to Mt. Lavinia and took bus to Kalutara.From there he took a taxi to the Training School and reached there about
a.m. He left the guns in his house and rested till about 7 a.m.About 8 a .m. he went to Brohier’s bungalow and informed him that therehad been trouble in Colombo, the 4th defendant had been arrested andthat the 19th defendant had given him 3 Sterling guns to be given toBrohier. Brohier told him that he had nothing to do with the guns andasked him to hide them. So he hid them under som« firewood near hishouse.
The 19th defendant admitted that Siri Chandra brought him a parcelcontaining loaded magazines of ammunition from Brohier. He says hedid not know anything about the ammunition till Siri Chandra gave himthe parcel saying it was sent by Brohier to the 4th defendant. He phoned
up 4th defendant on receipt of this parcel. 4th defendant told him thatthis should have been sent to Vanden Driesen and he would askVanden Driesen to collect it.
vir
i
If, as the 4th defendant says, Brohier told him on the 26th thatSenanayake wanted men and equipment from the Training School andVanden Driesen wanted Sterling gun ammunition and he asked Brohierto send them anything they wanted as these were troublesome times,it is very strange that Brohier should send this ammunition tc 19thdefendant by Siri Chandra, instead of sending it to Vanden Driesen.
The 19th defendant admits that in the early hours of 28th January,he sent the guns by Siri Chandra to Brohier. He said that he did notknow anything about the guns. Mrs. C. C. Dissanayake and her childrencame to his house just before that in great distress and informed himof the arrest of Mr. Dissanayake by the military. She brought these gunsin her car and said that they were in the house, and she did not knowwhat to do with them. He took charge of them to help her out of herdifficulty. As he did not wish to keep them in his house, he sent themby Siri Chandra to Brohier.
Vanden Driesen has given evidence that the 19th defendant drove upto his flat on the 28th about 7.30 a.m. and asked him if he would sendback a parcel of ammunition for him to the Training School. He askedthe 19th defendant what he did with bis guns. He replied that they hadbeen sent to the Training School by error and asked him to fix it up.This evidence is admitted by 19th defendant.
Vanden Driesen agreed to send the ammunition to Brohier and getback the guns from him. He realised the danger of keeping the ammuni-tion with him in his house. So he took the ammunition immediatelyto the house of Mr. Saravanamuttu, a friend of his at Debiwela, andrequested him to keep it. Saravanamuttu agreed to do so. Thereafterhe arranged with Inspector Taylor of the Depot to take the ammunitionto Brohier and bring back the guns. Taylor did so on the 29th. Thatevening when Brohier returned from the cinema, he found Taylor waitingfor him in a car near his house. Taylor told him that he had brought theammunition and had come to collect the guns. Taylor put the ammuni-tion into Brohier’s car and Brohier drove up to Orr’s bungalow and gavehim the ammunition and asked him to replace it. He told On* thatTaylor had come for the guns. Both of them went in search of SiriChandra. They picked him up near the Charge Boom. Then Brohierwent back to his bungalow with Orr and returned the guns to Taylorwho left in his car. That night Taylor went back to the Depot andreturned the guns to P. C. Aron Singho who replaced them.
In the meantime,- Arumugam had become aware of the arrest “of the4th defendant and others on the 28th. He was getting anxious aboutthe ammunition which had been removed by him from the Armouryand was still not returned. He told Brohier and Orr that he must closethe entry in the O. V. B. re the removal of the ammunition. He says
that on the 29th he made an entry in the O. V. B. (p6i that the ammuni-tion was destroyed after testing. Sgt. James says that after he saw thisentry, he too made an entry in the A. I. B. to the like effect. Thisentry appears at page 11 in the A. I. B. (p8). He has made this entryat page 11 instead of page 12 where the entry about the issue of thisammunition has been entered.
The ammunition was returned to the Armoury on the 30th morningby Orr or Arumugam or both of them. Arumugam was greatly relievedthat the ammunition had come back. However the entry in the O. V. B.that the ammunition had been destroyed after testing was in his way.Arumugam says that Orr tore off the pages 69 and 70 in the O. V. B.where the relevant entries appeared re the removal and destruction ofthe ammunition. Thereafter both of them fabricated the book to showthat somebody else had tom off these pages. They got Sgt. James andInspector Rosairo of the Administration Branch also to make false entriesin the subsequent pages to prove that Arumugam had discovered on13.1.62 that these pages were missing. Arumugam too made a falseentry on page 71 under date 13.1.62 about the missing pages. There-after Arumugam made an entry under date 27.1.62 that he removedthis ammunition for testing and a return entry was under the same daythat he returned the ammunition after testing. Sgt. James too madean^ entry at p^age 12 in the A. I. B. against the issue entry that theammunition was returned on the 27th by A. S. P. Administration aftertesting.
The fact that false entries were made by Arumugam in the O. V. B.about the removal and return of the ammunition, that Arumugam and Orrhad to tear off pages in this book and fabricate entries in it and inducetheir subordinates too, to make false entries in this book and the ArmouryInventry Book, clearly show that Arumugam was aware that the ammu-nition had been sent to Colombo for an illegal purpose.
After 28.1.62, Brohier, Orr and Arumugam realised that investigationswill be made at the Training School about the part played by the Officersand men of the Training School, in the suspected coup. They discussedthe course of action that they should take if such an investigation tookplace. They decided to suppress all evidence of the part they playedin this drama. A. S. P. Tyrell Gunetilleke of the C. I. D. and his mencame to the Training School on 31.1.62 for investigation. He wantedto examine the books of the Training School and Brohier ordered InspectorRosairo to make the books available to him.
He examined the books and recorded the statements of various witnessesincluding Brohier, Orr and Arumugam-. The last three witnessessuppressed all evidence tending to implicate them. Brohier admitted thevisit of Mr. and Mrs. de Zoysa on 25.1.62 as a purely social visit. Hedid not say that he had put through the telephone calls for the 5thdefendant. He said that the telephone calls were his own and thatMr. Zoysa had spoken to two of the persons he had called. They realised
that A. S. P. GunetiUeka was not impressed with their statements andthat he suspected the books had been tampered with. A. S. P.Gunetilleka took charge of some of the books of the Training Schooland the private diary of Brohier.
On 1.2.62 the D. I. G. Administration Mr. Wambeek ordered Brohier toreport at once to D. I. G., C. I. D. at the C. I. D. Headquarters with Orrand Arumugam. They went there about 1 pan. On the way to theC. I. D. Office too, they decided to stick to their original statements.At the C. I. D. office, they were kept apart. The D. I. G., C. I. D.asked Brohier if it was not a fact that the telephone calls were taken forMr. de Zoysa. Brohier admitted that. Orr*s statement was recorded atthe C. I. D. office and Mr. Felix Dias Bandaranaike came there whileOrr was being questioned. He listened to part of his statement andasked some questions from him. After sometime, Mr. Bandaranaikewas called away. He ordered the D. I. G., C. I. D. to produce thesewitnesses at Temple Trees that night.
When they were produced at Temple Trees on the night of 1.2.62 Orrwas the first to be questioned. Arumugam was thereafter confrontedwith Orr and he realised that Orr had disclosed what he knew of theconspiracy. Arumugam’s statement was recorded in the early hours of2.2.62. He too disclosed what he thought the investigators knew.Brohier was questioned after Arumugam. He too appears to haverealized that Orr and Arumugam had disclosed what they knew of this.incident. He says that he too came out with what he knew, as he wastired and disgusted with the whole thing. He too amplified his story inhis subsequent statements by giving more details and other informationthat he had forgotton.
On their own evidence Brohier and Arumugam were accomplices. Orrwas also an accomplice on the evidence of these witnesses. All three ofthem had suppressed all knowledge of the alleged coup, when they werefirst questioned by A. S. P. Gunetilleke on 31.1.62. It has been suggestedby the defence that Brohier and Arumugam have given false evidence inthis case and made false statements at Temple Trees and the C. I. D.office, at the instigation of Mr. S. A. Dissanayake, D. I. G., C. I. D. andother C. I. D. officers because they were in a panic that they will beinvolved in the alleged coup for carrying out orders legitimately givenby the 4th defendant. The case for the defence is that no coup wasplanned by any of the defendants. The 3rd and 4th defendants admitthat they prepared a plan and took action from about the 24th of January1962 to foil Mr. Bandaranaike if he made any attempt to overthrow thegovernment and become a dictator, as they suspected that he wasattempting to do so on 27th January 1962. According to the 4thdefendant, Brohier only carried out certain legitimate orders given byhim as a senior D. I. G.
S. I. Siri Chandra is also an accomplice on his own evidence, thoughhe got involved in this as he was sent by his Director Mr. Brohier to the19th defendant at the latter’s urgent request. He was not questioned by
Tyrell Gunetilleka at the Training School on the 31at. He was firstquestioned at the 0.1. D. office on 3.2.62 by Mr. Selvaratnam, A. S. P-,C. I. D„?
Brohier had a very high opinion and regard for C. C. Dissanayake. Hosays that no one would have questioned an order of the 4th defendant ortry to argue with him. He considered the 4th defendant a perfectgentleman. Brohier was also on friendly terms with the 5th defendant.5th defendant was the Director of Training when Brohier joined as anA. S. P. and came to the School for training. He had also served underthe 5th defendant when he was a D. I. G. He was also quite friendlywith the 19th defendant. Brohier was the Deputy Director when the19th defendant was an A. S. P. attached to the Training School.
S. I. Siri Chandra had worked for a number of years at the TrainingSchool when the 19th defendant was an A. S. P. there. Brohier had nopersonal reason to falsely implicate the 4th, 5th or 19th defendants norhad Siri Chandra any reason to falsely implicate the 19th defendant.
When Brohier was questioned on the 31st, he tried to shield the 5thdefendant by saying that he had booked the calls on his own. Before hewas questioned on the 31st, he telephoned to K. S. Perera and Werapitiya• to ask them to say that the telephone calls were by him. He could not■ contact K. S. Perera but he told Werapitiya to say so if questioned. Thisaction was no doubt taken to protect both the 5th defendant and himselfbecause Brohier realised that the calls were not quite innocent.
Arumugam actively and willingly participated in the discussions andplans to carry out the conspiracy with the 1st and 5th defendants. Heassisted Brohier to send the ammunition to the 19th defendant. But whenfinal aciion was being taken, his courage failed him. When 5th defendantgave him his assignment on the 25th to arrest the I. G. P. he tried toexcuse himself but he was threatened into submission by. the 5t,h defend-ant. On 26.1.62 when 5th defendant ordered him and Orr to take anunsigned letter to the 21st defendant and Thambiah, he did not carry outthat mission. Orr had to carry out that mission on his own. He gavehis car to Orr for that trip.
Similarly on the 27th, Arumugam did not go to Colombo with Orr asdirected by the 5th defendant, to carry out the assignment given to him.He went to a doctor that night and consulted him about his heart ailment.Probably he was trying to cover himself with an excuse for not going toColombo to carry out his assignment, in case the plan succeeded. Thereis evidence that on the 31st, Brohier had taken Arumugam to consult aspecialist and a cardiograph was taken that day. It may well be thatby that time, his heart condition may have worsened owing to fear andworry that he may be involved as the coup liad failed.
Arumugam and Brohier were both accomplices in the allegedconspiracy and this is a convenient stage at which to consider whetherand how they are corroborated.
There has been sufficient independent corroboration of Brohier’lsevidence concerning the disclosures alleged to have been made to him bythe 5th defendant on his visit to the Training School on 25 h January.Two of the matters alleged to have been then disclosed were firstly,that the 5th defendant was associated with the 4th defendant in a planand had with him a letter from the 4th defendant requesting Policeofficers to give the 5th defendant all assistance, and secondly thatLeftists were to be arrested in furtherance of the plan.
The prosecution proved that on the morning of the 25th the 4thdefendant made an official priority call to the bungalow at Elpitiya ofthe 23rd defendant, Jackson, who is the brother-in-law of the 5thdefendant. In the face of the evidence (considered elsewhere) about. this call the 4th defendant’s denial that he made it was clearly false,and we have had no explanation from the 4th defendant for this call.Jackson told the Ambalangoda A. S. P. later in the day that his sister hadphoned him to say that she was coming from Colombo, and that he hadarranged to meet at the A. S. P.’s house. Thereafter the 5th defendantand his wife arrived at that house, and after meeting Ja<k on, went withJackson to Galle and there visited the 21st defendant, Superintendentof Police, Southern Province, West. In the light of the 4th defendant’sfal e denial of his phone call to Jackson and of his suspicious reluctanceto reveal the object of lhat call, it is reasonable to infer that this (inthe circumstances) extraordinary phone call had reference to the 6thdefendant’s meeting later on the same day with Jackson, the 21stdefendant, and the Training School officers.
The 21st defendant admitted that Orr, A. S. P. of the Training School,came to his house in Galle after midnight of 26th January, and then toldhim of an apparently secret scheme to arrest Leftists and also instructedhim that after midnight of the 27th he would probablythe Leftist Member of Parliament for Baddegama and a former S. L. F. P.Senator. The 21st defendant’s evidence has been that Orr claimed tobe an emissary of the Inspector-General, and that evidence is consideredelsewhere. In the present context the question is whether Orr (whateverhe may have said), was in fact the emissary of the Inspector-General, orelse of the 5th defendant. Orr spent the afternoon of the 26th in Colomboin the company of Arumugam, who was not cross-examined as to thepossibility of any meeting with the Inspector-General that day. Norwas that possibility suggested to the Inspector-General himself or toany of several Police officers whom Orr may have met if he bmd visitedHeadquarters that day. Arumugam’s evidence that he and Orr twicemet the 5th defendant that day was not contradicted. Mr. Ponnambalamsuggested in his address that one visit only was made, but that there wasno meeting because the 5th defendant was out and Orr and Arumugamspoke only to the 5th defendant’s employees. Had those employeestestified and contradicted Arumugam’s story that he and Orr spoke tothe 5th defendant on that first visit, then there would have been goodreason to doubt Arumugam’s evidence as to both meetings. These
employees, on Mr. Ponnambalam’s own submission, could have givenvery favourable evidence to the defence on an important point. This-submission is of little or no value in view of their not being called. Wereproduce in this connection one question put i o Arumugam byMr. Ponnambalam :—
Q. " I put it to you that the reference to those so-called detention
orders is entirely false and your visit, while we admit the earlier visit,
your visit at 6 p.m. is entirely false ? ”.
A. “No
We must note at this stage it was not suggested to Arumugam that hohad met only the 5th defendant’s employees on the afternoon visit.As we are considering corroboration of Brohier, we here take no account ofwhat the accomplice Arumugam says took place at the meetings, but wedo accept Arumugam’s evidence that on the 26th there were two meetingsbetween the 5th defendant and Orr and himself, although we do notregard Arumugam’s evidence on the point as being corroboration ofBrohier.
In tile result, the prosecution succeeded in establishing this table ofevents during a period of about 36 hours :—
25th January at 7.15 a.m. the 4th defendant phones Jackson’s
bungalow for a purpose which we hold he declined to explainto the Court.
25th afternoon, Jackson informs the A. S. P. at Ambalangoda of
his sister’s impending visit to Ambalangoda.
25th afternoon, 5th defendant and his wife arrive and meet Jackson
at Ambalangoda.
25th evening, the 5th defendant visits the 21st defendant at Galle
as admitted by the 21st defendant.
25th night, the 5th defendant visits Brohier at the Training
School, and requests him to send for Orr and Arumugam.Through Brohier, he obtains 4 telephone calls to A. S. P. Bandara-wela, S. P. Uva, S. P. N. C. D. and A. S. P. Jaffna. He onlycontacted S. P. Uva and S. P. N. C. D. and arranged to meetthem the next day.
(/) 26th morning, it was decided that a Mess dinner at the T. S. shouldnot be held on the 27th.
26th afternoon, Orr and Arumugam meet the 5th defendant at
the 5th defendant’s flat in Colombo.
26th night, Orr visits the 21st defendant in Galle at dead of night
in order to instruct him to arrest the Leftist Member of Parlia-ment for Baddegama and an ex-Senator of the (Government)S. L. F. Party after midnight of the 27th, and informs himof an apparently secret scheme to arrest Leftists. Orr proceeded
to Matara -with a gentleman from 21st defendant’s house(most probably the 21st defendant) and returned accordingto Police driver James, whose evidence we accept for reasonsset out later.
We have already referred to the probable connection of the first ofthese events (i.e. the 4th defendant’s unexplained telephone call) andthe four succeeding events. Taken together, they tend to confirmBrohier’s evidence that on the 25th night the 5th defendant spoke ofhaving with him a letter to Police officers from the 4th defendant askingthem to give the 5th defendant all assistance.
In line with Brohier’s statement that the 5th defendant spoke ofsuch a letter was the further statement that the 5th defendant also spokeof a renewal of the friendship between him and the 4th defendant andsaid that this was not being outwardly shown. The fact that the 5thdefendant had not attended the wedding of the 4th defendant’s daughter(on 20th January) was put to Brohier obviously with a view to challengethis bit of evidence. But Brohier’s testimony on this matter is con-firmed by other evidence. For instance, we elsewhere accept the truthof Stanley Senanayake’s evidence of a meeting at Frances Road on the27th night at which both the 4th and 5th defendants were present.Then there are admissions of the 4th defendant that he received theletter P15 from the 5th defendant in an envelope (P15A) bearing thedate stamp 16th December. There the 5th defendant suggested thatthe past be forgotten and that the two meet to have a chat. The 4thdefendant responded at least by sending the 5th defendant a Christmascard, and the 5th defendant did visit the 4th defendant at Christmas"time in December 1961. On 1st January the 5th defendant wrote P16to the 4th defendant, saying among other things, “ May 1962 see an endof persecution and the final triumph of decency of thought and livingagainst the corruption that is tending to decay our very souls
The prosecution suggested that there was here a reference to someactivity connected with the alleged conspiracy.
The 5th defendant sent the greeting card PI 7 to the 4th defendantwith the date 1st January. Although there is no admission of anymeeting in January, the 4th defendant admitted that the 5th defendantand his wife were invited to the wedding of the 4th defendant’s daughterand had sent a present, although they did not attend the wedding.
The evidence just considered points to the feelings between the 4thand 5th defendants being greatly improved about this period and shows-that they were no longer on bad terms. It lends much support toBrohier’s version of the statement made to him by the 5th defendantabout the 4th defendant. We must stress that the documents we havementioned were found by the C. I. D. only on the 9th of February inthe locked steel cabinet of the 4th defendant.
A glance at the table of events we have set out above shows an appa-rent connection between the 5th defendant’s visit to the 21st defendanton the 25th evening, the 5th defendant speaking to Orr and Arumugamon the 25th night, their visits to the 5th defendant on the 26th afternoon,and Orr’s visit to the 21st defendant and to Matara that night. If then,(as the 21st defendant admitted), Orr on the last occasion took a messageto Galle about the arrest of Leftists, these four events strongly corrobo-rate Brohier’s evidence that the 5th defendant spoke on the 25th nightof a scheme which involved the arrest of Leftists. Indeed Orr’s admis-sion to the 21st defendant on the 26th, which was made (as we elsewherehold) on behalf of the 5th defendant, proved that the 5th defendant tooka step in furtherance of the scheme about which Brohier testified.
We have already stated why the decision not to have the Mess dinneron the 27th was connected with the 5th defendant’s request for theservices of Orr and Arumugam in Colombo on that night.
There are other points in Brohier’s evidence which receive independentcorroboration. He said that the 5th defendant told him that Royce deMel would join in the alleged coup and would again become Captain ofthe Navy. We find corroboration for this in Stanley Senanayake’s- evidence, that Boyce de Mel the 6th defendant was also present at themeeting at Prances Road. We must note here, however, that the 5thdefendant’s statement to Brohier about the 6th defendant will not beused as evidence against the latter.
According to Brohier the 5th defendant needed the services of Orrto arrest S. A. Dissanaike, D.I.G. and of Arumugam to arrest the Inspector-General of Police. Although Aiumugam did not go to Colombo onthe 27th, Orr did so according to the »vid nee of S.I. Ratnasingkamand P. C. Amaradasa. Orr travelled in Ratnasingham’s car with thelatter snd S. i. Dissanaike, Orr carrying a shut gun and Dissanaike arevolver. Ratnasingham’s evidence, although it contradicts what hehad said earlier to Mr. Kelaart, S.P., Depot, is that Orr directed himafter dark on the 27th to drive on two occasions and to park near theEmpire Theatre in Colombo. He said that on each occasion Orr got downand walked towards some flats in the vicinity. He subsequently pointedout he flats to C. I. D. officers.
We are satisfied that Ratnasingham did not speak the truth to Kelaartabout these visits for fear that he would be implicated in the matterswhich had led to the arrests of Police officers. This attitude, similarto that of many other Police officers who have admitted that theyconcealed the truth when first questioned, was not unnatural in thecircumstances. Added to the impulse to protect themselves from beingimplicated was the impulse at first not to implicate brother officers. Forthis reason we accept Ratnasingham’s evidence as to the two trips whichOrr made on the 27th to some flats near the Empire Theatre. It wasestablished by other evidence that the 5th defendant had his officeand residence at those flats.
„ The evidence of Orr’s visits to the 5th defendant’s flat on 27th Januarycor.oborates Brohier’s evidence that the 6th defendant required Orr’sservices that day for the purpose of arresting Mr. S. A. Dissanayake. Theevidence of these visits also corroborates the evidence of Arumugamthat he and Orr visited the 5th defendant on 26th January in consequenceof a request which the 5th defendant had made on the 25th. No sugges-tion was made to Arumugam in cross-examination that these contactswith the 5th defendant in Colombo were made by Arumugam and Orrfor some purpose other than the purpose spoken to by both Brohier andArumugam. The prosecution evidence as to the nature of that purposeis confirmed by the fact that Orr and Dissanaike carried arms whenthey went to Colombo on the 27 th evening.
According to the defence version, all that Brohier did before 28thJanuary was to send some ladders, and to sendSiri Chandra with ammuni-tion, to Colombo, upon lawful orders which had the 4th defendant’sapproval. Nevertheless, Brohier panicked on hearing of the 4th defendant’sarrest and agreed to conceal the despatch of ammunitionby means of the fabrication of book entries. Naturally, an experiencedPolice officer would on the 28th or a little later have suspected that therequest from Colombo for ammunition and ladders might have beenconnected with the action on account of which the 4th defendanthad been arrested. But we can see no cause for “ panic ” if Brohierbad in fact only complied with a lawful request for ladders and ammuni-tion. Surely such an officer would have realized that all he had to doin his own interest was to inform the authorities of that now suspiciousrequest, and of the suspicious arrival at the Training School on themorning of the 28th of three Stirling guns sent there for concealmentby the 4th defendant’s Personal Assistant (the evidence on this pointis considered elsewhere). The fact that Brohier decided instead to runthe risk of involving himself deeply by concealing these matters is notconsistent'with* purely innocent conduct on his part earlier in the'week,but is reasonably explained on the basis that he had known earlier ofsome illegal activity in which the 4th defendant was engaged. Hisevidence that he had that knowledge from the 5th defendant’s talkon the 25th, that he acquiesced in Orr and Arumug im having furthercontact with the 5th defendant, and that he sent ammunition to Colomboafter having that knowledge, explains why in fact he panicked on the28th and tried to conceal what he had done. There is, in B ohier’sconduct itself, corroboration of his evidence that he knew of some illegalscheme from the 5th defendant’s talk and from the information broughtby Siri Chandra on the 26th.
If (as we have just held) Brohier ** panicked ” because he had guiltyknowledge of some unlawful scheme, we must also hold that Arumugamand Orr fabricated entries in the Training School books for the identicalreason. Thus the evidence of Arumugan’s conduct in furthering thefabrication corroborates his own evidence that he did have such a guiltyknowledge of the alleged conspiracy.
On Arumugam’s own evidence-concerning the alleged conspiracy, hehimself was more deeply and more clearly an accomplice than wasBrohier. Yet onr decision to accept Brohier’s evidence, particularlyas to the purport of the 6th defendants talk on the 25th night, greatlyminimizes the risk of acting on Arumugam’s evidence implicating the 5thdefendant. In so far as Arumugam’s version of that same talk is in linewith Brohier’s. Arumugam is corroborated equally with Brohier andhis version is obviously true. It also helps to explain his own subsequentconduct. From Brohier’s evidence that the 5th defendant requiredArumugam and Orr for the tasks of arresting the I. G. P. and Mr. S. A.Dissanayake, there is explanation for the visits which Arumugam sayshe and Orr made to the 6th defendant’s flat on the 26th and for Orr’strip to Colombo on the 27th. The finding we have already reached thatOrr’s message to the 21st defendant at Galle on the night of the 26thwas conveyed by Orr as the 6th defendant’s emissary and of Orr’s trip toMatara the same night renders acceptable the additional evidencefurnished by Arumugam that the 5th defendant gave Orr a piece of paperto be shown to the 21st defendant and to Thambiah, S. P., Matara.Arumugam also stated that the. 5th defendant handed to him and toOrr two documents which he said were Detention Orders. Brohier’sevidence of the assignments mentioned by the 5th defendant sufficesfor the purposes of the prosecution’s case on this matter. We havereferred earlier to various points in the evidence of Arumugamimplicating the 5th defendant. In some instances which we have indi-cated, we shall accept the evidence where truth is inherently probablein the light of our belief that the 5th defendant did disclose to Brohierand Arumugam a plan to overthrow the government. In other instanceswe shall not act on Arumugam’s implicatory evidence, either becausehis statements as to the matters in question had been belated or becausewe cannot discount, in some contexts, the natural tendency of anaccomplice to prop up asubstantially true version with some false details.Here again, our disinclination to act upon some items of Arumugam’sevidence does not seriously handicap the prosecution, for there has beenno contradiction or explanation regarding Brohier’s version of what the6th defendant told him on 25th night. No suggestion was made by thedefence that that talk had related to any plan for countering the allegeddictatorial ambitions of Mr. Felix Dias Bandaranaike, nor did the 4thdefendant in his evidence countenance any possibility that the 5thdefendant’s services might have been called in aid of his alleged counter-plan. Nor have we been given any possibly innocent explanation forthe instruction which Orr conveyed from the 5th defendant to the 21stdefendant to arrest a Member of Parliament and a former S. L. F. P.Senator.
Arumugam’s evidence concerning the 1st defendant’s statement aboutthe alleged plans to overthrow the government receives scant corroborationfrom independent sources, except perhaps in regard to onematter. According to Arumugam, the 1st defendant had asked him
early in December, 1961 if the 4th or 5th defendant was more popularin the Police Force. He told the 1st .defendant that 4th defendant wasmore .popular. According to his statement at Temple Trees on 2ndFebruary, 1962, Arumugam. said that he knew that 1st defendant wasaware of the coup because he asked this question. In this Court, hegave farther damaging evidence of- this conversation. Apart from that,he had by his evidence of the conversation with 1st defendant on 26thJanuary, clearly implicated 1st defendant in. the conspiracy to over-throw the government. As indicated earlier, we are not acting on hisadditional evidence in this Court.. .
We have referred elsewhere to the proved visit' of the 1st defendantto the 4th defendant at the latter’s office on the morning of the 27thJanuary, and we accept the evidence that on that occasion the 4thdefendant had earlier directed the Information Room that the 1stdefendant should be shown up to the 4th defendant’s office on arrival.It is at the least a ground for suspicion that the 1st defendant (as wehold earlier) deliberately concealed this visit when he was questionedat Temple Trees, and that the 4th defendant should at the trial havedenied any recollection of that visit. Nor do we accept the 1st defendant’sevidence about the purpose of the proved visit.- If the 1st defendanthad (as he claimed) met the 4th defendant only once before, and that in apurely official capacity, it is doubtful whether he would have felt justifiedin troubling so busy and important an official with a complaint by hislandlord about an illicit liquor booth. The landlord himself was notquestioned in cross-examination about this complaint or about any ideaof making representations in this connection to the 4th defendant.
The 1st defendant admitted that he had known Arumugam when theywere both stationed at Mannar. That they were on friendly terms fromthat time is shown by the fact that Arumugam came to the 1st defendant' for advice in regard to the extension of the" former’s service. In thisconnection Arumugam met and phoned the 1st defendant frequentlyabout September 1961 and in November 1961. While, however,Arumugam spoke of several meetings iii December and January, the 1stdefendant admitted only two meetings during that period, at his parents’house at Christmas and at' his house in Colombo on the afternoon ofJanuary 26th. The 1st defendant stated that Arumugam had phonedthat morning to tell him of his extension and to thank the 1st defendantfor his help in that matter. The admitted visit of the afternoon alsowas only to thank the 1st defendant personally for that help. The1st defendant knew nothing of any conspiracy and never spoke of suchmatter to Arumugam.
If the 1st defendant’s version of the relations be correct, Arumugamwas a man who was in fact grateful to the 1st defendant and who on the26th January, both on the phone and in person expressed that gratitude.Nevertheless, on the night of 2nd February, at Temple Trees, he quitefalsely implicated the 1st defendant in a sensational conspiracy to
'overthrow the government. The only motive which the 1st defendantand we ourselves can ascribe for such base conduct is that Arumugamwas somehow induced to implicate his friend in order to save himself. Wedoubt whether even the 1st defendant would wish us to hold thatArumugam of his own accord thought of this extraordinary piece ofwickedness, and we will consider only the alternative that the induce-ment was devised by some one else. We note in this connection thatin a statement made on the night of 29/30th January Major Rajapaksehad implicated the 1st defendant, though not deeply, in the allegedconspiracy. The theory of inducement had therefore to be that someinvestigator, probably of the C. I. D. was looking around for a personwho could be prevailed upon to implicate the 1st defendant moresubstantially. We think it too much of a coincidence that the choiceshould have fallen on a man who, only as recently as the 26th, had madeit a special point to express his gratitude to the 1st defendant. Therewas a similar theory on inducement to account for Arumugam’s impli-cation of the 5th defendant in the same.statement. On the defencesubmission itself, Arumugam protected himself in large measure byimplicating the 5th defendant in his statement of 2nd February. Butwe have held already that what he said about the 5th defendant wassubstantiallyjrue, and we have therefore to reject the theory that he wasinduced to implicate the 5th defendant falsely. That being so, it wouldbe unreasonable for us to think that a witness, who decided on the 2ndof February to make truthful revelations concerning the 5th defendantand concerning his own part in the alleged conspiracy, was * induced ’on the same occasion to make false statements implicating his closefriend the 1st defendant. This theory of ‘ inducement ’, advanced timeand again by the defence, has been Bhown in our consideration of Stanley- Gcnanayake’s evidence and of Brother's evidence to have been quiteunwarranted. It is equally so in the context of Arumugam’s evidenceimplicating the 1st defendant.
For these reasons we are satisfied that we can safely act on this partof Arumugam’s evidence, except in so far as it was shown to be un-supported by his statement made on 2nd February, or is otherwiseunreliable.
The papers which have been pasted up in the File P 20 were discoveredby the C. I. D. officers in the incinerator at Police Headquarters on 29thJanuary. Having regard to the usual practice with regard to the cleaningof the offices at Headquarters and to the evidence of the 4th defendanthimself, many of these papers were proved to have been taken on themorning of the 29th January from the waste paper basket in the officeof the 4th defendant. The notes in the papers to which we will nowrefer were admitted by the 4th defendant to be in his handwritingand he attempted in cross-examination to explain them as beingconsistent with preparations for the alleged counter-plan.
There was in regard to these numerous notes much common groundbetween the prosecution and the defence, for it was the* case for eachside that they were made with reference to contemplated arrests. The4th defendant admitted that many names or pseudonyms in thesenotes referred to police officers, and others to persons to be arrested orwatched. In the case of many of such notes, they do not by themselvesestablish that they were made in preparation of any illegal plan. Wewill therefore only refer to those notes which in our opinion are notsatisfactorily explained as having reference to the alleged counter-planof the 3rd and 4th defendants, or in regard to which the true explanationswere deliberately withheld by the 4th defendant.
P20 A : item “ 3) Protective custody of Ministers **. The 4th defen-dant’s explanation was that this note must have referred to a discussionhad with the 3rd defendant on the question of protecting Ministers(against potential danger from Mr. Bandaranaike) by requesting themto stay in their homes and guarding their homes. In re-examination,he said that this note referred to an idea of protecting Mini stem against“ liquidation or some such thing ”, if and after Mr. Bandaranaike actuallyseized power, and that he abandoned the idea after discussion withStanley Senanayake. These two explanations are not easily reconcilable,nor does the 3rd defendant support the first explanation. But if indeedall that the 4th defendant had in mind was to protect Ministers againstMr. Bandaranaike, either if he attempted to seize power or after he hadactually succeeded, words like “guarding” or “protecting” would havebeen much more appropriate. Wp-cannot attribute to the 4th defend-ant ignorance of the known meaning of “protective custody” implyinga form of forcible restraint. In fact, the 4th defendant himself admittedthat “ protective custody ” was not a suitable mode of describing whathe says he had in mind. We must infer from this note that the 4thdefendant had at least contemplated a possible need to keep Ministersin ouaiody:' Even the contemplation of such a course was incompatiblewith the alleged counter-plan of the 3rd and 4tli defendants.
P20 A : item “ 6) Satha and Sec”. The 4th defendant explained thatthis item referred firstly to Superintendent Arndt whom he says he called“ Satha”: but there was no confirmation, from Arndt himself or from anyother witness, that Arndt was referred to in police circles as “ Satha ” ;On the contrary, the dozen or so police officers to be employed for thepurposes of the alleged counter-plan are referred to in the 4th defendant’snotes generally by their first or surnames, or else by words which arenot uncomplimentary. Arndt himself is mentioned twice in P20 G byhis surnames. “Sec”, according to the explanation, referred to ColonelAbeysinghe, who was to be with Arndt at Army Headquarters, andthis word was used because Abeysinghe had been the Secretary of theServices’ Quadrangular Sports Committee. We have little doubt thatthis is purely an after-thought of the 4th defendant; to describe oneperson as “ Sec ”, when so many of those mentioned in the notes musthave been Secretaries of various bodies seems almost absurd. Having
regard to the evidence of Stanley Senanayake, we are inclined to the opinionthat the reference in this note was to the Governor-General and his Secre.-tary, the daughter of the Governor-General having recently marriedone Mr. Sathananthan. At the least we must hold that in this instance the4th defendant, for reasons of his own, withheld the true explanation ofthe note.
P2) D: *‘J) Soviet and Chinese Embassies—others?”. The proposedexplanation for this note was that a question considered in the preparationof the alleged counter-plan was whether it would be necessary to guardthese Embassies, particularly those of the U.S.S.R. and China. The 4thdefendant was quite unable to suggest why, if all that was contemplatedwas the arrest of one Minister and one Permanent Secretary and thento leave everything for the decision of the Governor-General and thePrime Minister, any question could arise of a need to protect any foreignEmbassy. We think the true explanation of this note has been withheldfrom the Court.
P20 D : “Question of Abhaya ” and “ News to the World The 4thdefendant sought to explain these notes as one item. It was thought,he said, that if Mir. Felix Dias Bandaranaike tried to seize power, the press,while anxious to obtain information, might be unable to obtain correctinformation : in that event the need might arise for the issue of specialcommuniqueshy the Governor-General and the Prime Minister. The note“ News to the World ”, he explained, referred to such communiques, and“Question of Abhaya ”, he paid referred to the question whether theInspector-General should participate in the matter of issuing them. Theidea that the-igsue of official communiques may be necessary duringa period when Mr. Bandpranaike might be yet striving to seize power is quiteinconsistent with the simple’p^n deposed to by the 3rd defendant, andby the 4th defendant himself in other contexts, namely to arrestMr. Bandaranaike no sooner he'b'{lowed his hand. Moreover, if the 4thdefendant did indeed anticipate that a stage would be reached for theissue of communiques by the Gover.aor'^*en‘era^ and the Prime Ministerin the face of a known, active thread by Mr. Bandaranaike, it is almostludicrous for him to have been concdimed about the duties which theInspector-General would have to perforiPP 6U°b a situation. We werenot however surprised at the inability of ^be 4th defendant to offer aninnocent explanation for so simple but insignificant a note as News tothe World ”. In the absence of any plaS^1® explanation, this notesatisfies us that the 4th defendant conten.<lPbd;ed a possible need forhimself to be concerned in the publication to t:ae°f some information
of quite unusual importance. Information ’°f a successful Coup d Etatin Ceylon would obviously be “ News to World , and the 4thdefendant does not claim that his not? had refers??0® to aRy need by himto publish information of a Coup by Mr. BandaranaikSS*
Apparently connected with the note “ Question of Abhayan°ther
note made by the 4th defendant on F20 A “ Must Abhaya taken ? .This note, explained the 4th defendant, referred to a query in L ^ own mRid
whether, after arresting Mr. Felix Dias Bandaranaike in pursuance of thealleged counter-plan, the Inspector-General should be taken to Queen’sHouse in order to satisfy the Governor-General that Mr. Bandaranaike hadplanned to seize power. Having, as we have just done, rejected the ex-planation offered for the note “ Question of Abhaya ” in P20 D, the leastwe can say is that the note “ Must Abhaya be taken ” has a much moresinister significance than that claimed for it by the 4th defendant. Wefind in it confirmation of the evidence of Brobier and Arumugam thatthe 5th defendant spoke on 25th Januaiy of the arrest of theInspector-General.
P20 B : 1000 " English ”, and P20 E: “ English P ” The 4thdefendant failed to give any explanation of these notes, although in eachdocument these words are preceded by an identical listing of items :—“ Hip Flask, Pills and Oil, Sweets This failure is not by itself important,but it becomes suspicious because of another matter which arose duringthe trial. The 4th defendant denied that he referred to anyone as” P ”, and subsequently he maintained that denial when confronted with aletter (P179) which he had admittedly written from Welikada Prison on31st January 1962. This letter commences with the words “ My dear Pand Y ”, and the 4th defendant was at first positive that, although theletter had been enclosed in an envelope addressed to the 19th defendant ,the letter itself could not have been intended for the 19th defendant.There were references in the letter to certain incidents, from which to ourminds, the 4th defendant should have been able to state to whom hewrote it. On the next day of trial, the 4th defendant stated that, afterdiscussion with the 19th defendant the previous evening at the RemandPrison, he was able from those references to remember that he hadintended the letter for the 19th defendant. On this occasion, he statedthat he must have written to the 19th defendant as “ My dear P ” becausethe 19th defendant was his personal assistant or his P. A. or else becausethe 19th defendant’s nick-name was “ Pencha ”. Nevertheless, he wasforced to admit that he had never before called the 19th defendant either£‘ P ”, or “ P.A. ”, or ** Pencha ”. The 19th defendant himself saidthat the 4th defendant always called him by his surname (Wijesinghe).We think that the 4th defendant’s evidence regarding the persons to whomthe letter P179 was intended was completely false ; the evidence becamealmost farcical when the 4th defendant added that “ Y ” must stand for“ Wife ”, that is Mro. T. V- Wijesinghe, with whos3 names the letter“ Y ” has no connection whatever. It is difficult to resist the conclusionthat the 4th defendant deliberately concealed from the Court the truemeaning of the references to “ P ”, “ Y ”, and “ Z ” in the documentswhich we have here mentioned.
P20J: “ jS. P. C. sign orders ”. The 4th defendant’s version about theproposed arrest of Leftists was that the Inspector-General gave him a listof those to be arrested and that he handed the list to Stanley Senanayake,who (according to him) was given the task of arranging for the arrests.His explanation of this note was that it referred to some question put to
him by Senanayake as to whether “ signed orders ” for these arrestswould be received (presumably from the Inspector-General or somehigher authority). It is scarcely necessary to point out that, if the notewas intended as a reminder to hand over signed orders to theSuperintendent of Police, Colombo, its terms in no way bear out thatintention. The note clearly imports the signing of some orders by theSuperintendent of Police, Colombo, and the 4th defendant’s denial that suchmust be its meaning must be held to be false. Stanley Senanayake’»evidence that the 4th defendant desired to have the seals (or rubberstamps) of the Superintendent of Police, Colombo in order to affix them tosome orders receives support from this note.
On 16th February, C. I. D. officers foirnd certain papers in the officeoccupied ljy the 19fh defendant who was the Personal Assistant to the4th defendant. Among them was the paper P19B and the entries in itto which we now refer are admittedly in the writing of the 19thdefendant:—
leave 94826
Cecil’s House("Reports re: poultry every
Francis’ Housel2brs*Report 12.01a—
Wire-Break 12.40a.-—Bring in roosters 1 a.m.
6. Concubine’s House
6. Typewrit … to all
Arrest parties. How
Co ….
The above reproduces the manuscript as nearly as possible.
The prosecution submission has been that the entry “ leave ” relatedto an order of the 4th defendant cancelling all leave until 29th January,but the 19th defendant has explained that it was a note made to remindhim to apply for leave.
The plain meaning of the second entry, if read as it appears to have beenwritten, is that, to or from a place described as ‘ Cecil’s House *, there areto be reports re poultry at stated times. The nature of the reports ismade apparently clear by the evidence of the 4th defendant, who admitsthat he did dictate the note about “ poultry ” to the 19th defendant,probably on 25th January. The 19th defendant was to remind him ofthis note, because he wished to tell Stanley Senanayake to keep an eye onmovements of persons to be arrested pending the receipt of orders for thearrest of those persons from the Inspector-General. Thus, “ Reports repoultry ” have been proved to be reports regarding persons to be arrested,although the 19th defendant claimed that he was not told what thedictated note meant. But both these defendants denied that the firstpart of the entry “ Cecil’s House ” had any connections with the reports.According to the 19th defendant, this part, as also the third entry“Francis’ House” referred to a private matter: he was proposing to
build a house in Kandy, where also two of his cousins named Cecil andFrancis had also bnilt houses, and he made notes to remind himself tolook at the plans of their houses before planning his own.
The alleged cousins Cecil and Francis were not called to testify totheir names or to the fact that they had recently built houses in Kandy :this at a trial where few stones have been left unturned.
The 19th defendant admitted that the 4th, 5th and 6th entries relatedto official matters ; and the first entry is at the least semi-official, sincean application for leave had to be formally made and granted. In thecontext of a series of numbered notes relating to official matters, theinclusion of personal notes about two houses is strange. The possibilitythat the names Cecil and Francis were mentioned by the 4th defendantis supported by the fact that according to the record, the second namesof the 3rd defendant and the witness Johnpulle are Cecil and Francis.Both these persons had admittedly parts to play in the alleged counter-plan of the 4th defendant. Johnpulle was to watch the NavyCommander, and he stated that he had orders to report on that officer’smovements to the 19th defendant, whose Telephone No. 94826, forsome unexplained reason appears in contiguity to the note about “ reportsre poultry ”. Also unexplained is the fact that the word ‘ Cecil * in P19Bhas obviously been written over the word 'Cyril*; the 19th defendantcould not say why he should have written the name “ Cyril ” in his allegedprivate note, and thereafter corrected it to " Cecil ”. The record showsthat the 4th defendant’s own first name is Cyril. The fondness of the4th defendant for the use of code names, often quite thinly disguised,has been established ; even the 3rd defendant said that “ giving nicknameswas a game with the 4th defendant
On the lower part of the paper P19B, the 19th defendant has written“ bird cage ”. He explained that on his transfer to Colombo from theTraining School at Kalutara he had left behind some poultry runs. Thisnote “bird cage", he said, was made because his wife was constantlyreminding him to get those runs to Colombo. It seems to us quite acoincidence that, the same paper which contains the words “poultry"and “roosters” dictated by the 4th defendant as code words relating toan important matter of State, also contains the words “bird cage”intended by the 19 th defendant to refer to what are commonly calledfowl runs in this country.
We cannot in the circumstances accept the explanation that the notes“Cecil’s House” and “Francis* House" refer to personal matters.
The fourth entry on P19B appears plainly to import a “Wire Break”at 12.40 a.m., followed by the bringing in of “roosters” at 1 a.m. Thedash between the two parts of this entry is also a fair indication thatthere was a connection between the two parts. Again, having regardto the 4th defendant’s admission that he dictated the notes “ Reports
re poultry12.01 a.m.” and “ Bring in roosters 1 a.m.”, there is the
inherent probability that the note relating to the intervening time 12.40
a.m. was also written at his dictation. “Wire Break” could well havebeen his way of referring to the action contemplated by the 3rd defend-ant of a possible immobilisation of Telephone Exchanges. The 19thdefendant’s explanation was that “Wire Break” probably referred tosome duty he had to perform as co-ordinating officer for all reports andcomplaints about theft or sabotage of telephone wires: the time mentionedin the note, he suggested, was probably 12 noon. While it wasestablished that the 19th defendant did have duties of the kind hementioned, we are unable to hold that “Wire Break” in this contextreferred to those duties or that the entry as to time (when comparedwith other such entries on the same paper) referred to noon and not to12.40 a.m. Mr. Kannangara pointed to several telephone messagesregarding thefts and sabotage of telephone wires which the 19thdefendant would have dealt with in his capacity of co-ordinating officer.But in none of these was the word “ break ” or any of its variations employedwith reference to damage or theft of telephone wires. The 19thdefendant could not explain why he should have used so inappropriatea word to refer to such matters. We have to reject as false the evidencethat the term “ Wire Break ” was not dictated by the 4th defendant.
When the 4th defendant was questioned about this entry, he flippantlyspoke of “Tea-break, Coffee-break, lunch-break” with a view (in ouropinion) to divert attention from the significance in the context of theterm “ Wire Break ”. This was not the only instance where he displayedflippancy in answering awkward questions.
There is yet another entry on P19B which is apparently and reasonablyconnected with the 4th defendant’s alleged plot or counter-plan. The19th defendant denied that “ arrest parties how ” related to any ordergiven by the 4th defendant, and claimed that he must have made thatnote because some police officer may have inquired about some arrests.A similar vague explanation was offered for another note “arrest partiesto be notified earlier” which appears on P19C. The connection betweenthese notes and the admitted intention of the 4th defendant that arrestsof Leftists would probably be made on 27th January has not beennegatived by the evidence of the 19th defendant.
There is in P19C a note by the 19th defendant “Sing-Sing TrustedGuards”. The explanation was that this probably referred to thecase of Radio Ceylon technicians detained at Welikade Prison, andto a request for a special police guard for them from the Police Depot.Even if there had been other evidence of such a request, this explanationof the note would be unconvincing. Those technicians were arrestedsuddenly and unexpectedly and were then confined at Welikade, andthere was no reason why any police note concerning them should nothave plainly mentioned Welikade and/or the Depot. While it is clearthat the 4th defendant used what he thought were code words for hissecret plan or counter-plan, we were not given a satisfactory reasonwhy the 19th defendant should, some two weeks earlier, have describedin a kind of code the prison where the Radio men were known to be
already detained. Here also the 19th defendant has withheld thetrue meaning of the note, even though the evidence of the 3rd and 4thdefendants makes its meaning fairly obvious.
Quite clearly discernible on the top left comer of the paper P19Bare the words “Hold fast 27th”. The 19th defendant and the 4thdefendant both denied that either of them wrote these words, and theformer suggested that some unidentified person must have writtenthem. Having regard to the evidence of the 3rd and 4th defendants.that “Hold fast” was a code word for their alleged counter-plan, andthat the only persons to whom they had disclosed the word were StanleySenanayake, Abeysinghe and Arndt, the defence position can only bethat one of these officers wrote those words on P19B. But that possibilitywas not put by the defence to any of them, and we cannot regard itas plausible! We think that at the least the 19tK defendant has declinedto explain to the Court how these words, which undoubtedly had referenceto the 4th defendant’s plan or counter-plan, came to be written ona paper which contains so many notes which he admittedly made.
On the paper P19C the 19th defendant had written the note “Owlto be taken where ? ”. He thought that the word which appears toread “ taken ” may instead have been “ later According to his evidenceAssistant Superintendent of Police Ranasinghe had reported a suspectedcase of gold smuggling early in January, and there had been some sugges-tion that in the investigation or detection of this matter the 19 th defendantshould' himself participate in some way. Ranasinghe’s nickname,he said, was “Owl”, and this note must have referred to Ranasinghebeing taken somewhere or to his being somewhere later. But the 19thdefendant was contradicted as to Ranasinghe’s nickname by TyrellGunatileke and by the 4th defendant, both of whom said that he wascalled “ owlet ”. The 4th defendant also said that everybody knewthat Sir Oliver Goonetileke was referred to as “ owl ”, because some timebefore he had been regularly portrayed as an owl in cartoons by Collette.In the context of a plan or counter-plan to approach the Governor-General, this note is intelligible as a query on a point whether Sir Oliverwas to be or be taken somewhere after an approach had been madeto him. But the construction placed on the note by the 19th defendantdoes not make sense, for we were given no idea as to why it was or whereit was that Ranasinghe was to be later or to be taken. While the omissionto cross-examine Ranasinghe with regard to this case of gold smugglingcould not have been deliberate, it leaves us with no assistance from himin the consideration of the explanation offered for this note. Thisnote was numbered “ 6 ” on a paper in which there follows as No “ 7 ”the note about Sing Sing discussed above. In such a context, we areunable to accept the explanation that the note referred to Ranasinghe.In view of the admission by the 4th defendant that he did dicatatenotes for his unlawful plan or counter-plan, we think it highly probablethat this was such a dictated note concerning some question affectingthe Governor-General.
Although wo have had to consider separately each of the notes madeby the 19th defendant which axe discussed above, the conclusion wereach on this part of the evidence Js based on our consideration of allthe notes and the 19th defendant's explanations of them all. Thatconclusion is that the 19th defendant in fact knew much more aboutthe plans of the 4th defendant, be they lawful or unlawful, than hewas willing to admit. In this way, there is support for the evidenceof witnesses such as Stanley Senanayaka, Brohier and Johnpulle thatthe 4th defendant made certain statements in the presence of the 19thdefendant.
As regards the case against the 4th defendant himself, our considerationof the evidence relating to the notes of the 19th defendant has led us toone important conclusion, namely that in notes which he admittedlydictated on 25th January of a plan to have reports on “poultry ” everytwo hours and finally at 12.01 a.m., he included a note of a “ Wire Break ”at 12.40 am. before his admitted note to bring in “roosters” at 1 a.m.We are thus satisfied that the 4th defendant did on 25th January con-template an operation described by him as a “ Wire Break ” for whichwe have no explanation from him. The true explanation for this notewe see in the evidence of the 3rd defendant and Major Rajapakse thatat Kinross Avenue the 13th defendant had stated that the TelephoneExchange at C.T.O. could be immobilised in a few minutes.
4»
The 19th defendant’s notes “ Bring in roosters ” lends strong confir-mation to Johnpulle’s evidence that the 4th defendant did on the 27thmorning use the word “roost” and its variations with reference to thealleged order to watch and arrest the Navy Commander. The 4thdefendant falsely denied this.
Before stating our findings in respect of the Police officers who aredefendants, we shall repeat briefly some conclusions upon which thosefindings are based.
No order, even of a tentative nature, was given by the Inspector-General to the 4th defendant for the arrest on or about 27th January1962 of Opposition Members of Parliament or of Leftist Members ofParliament and Trade Union Leaders. The orders for some such arrests,which the 4th defendant admittedly gave to the Western Province(Central) officers on the 27th morning were therefore his own orders,and had no official sanction and no connection with any official objectives.The 3rd and 4th defendants admitted their joint decision to arrestMr. Bandaranaike and Mr. N. Q. Dias. We accept in addition theevidence of Johnpulle that he was ordered to arrest the Navy Commander.Ample corroboration of'that evidence is available. There was theevidence of the 3rd defendant that he had contemplated the need to“ restrain ” the Navy Commander. There was Inspector Mendis’sevidence that Johnpulle ordered him to secure a pair of handcuffs ;Mendis secured them and had them available at the Traffic Office. Thehandcuffs were necessary because Johnpulle expected to make an arrest.
Johnpulle was given the pass-word “ Yathura ” to be used, accordingto him, when delivering the arrested Navy Commander to Arndt atArmy Headquarters. There is ample evidence, including the,, admissionof the 3rd defendant, that this was the pass-word which Arndt wouldexpect. Johnpulle could not have known it, unless, as he stated, the 4thdefendant disclosed it to him.
We accept the evidence of Johnpulle that the 4th defendant orderedhim to have Radio cars ready with loud haflers. This order wasadmitted by the 4th defendant. The purpose of the order is provedby the 4th defendant’s note in the document P 20 C “R. T. cars L. H.re curfew ”. The 4th defendant’s explanation for this note was that heexpected that there would be disturbances if Leftists were arrested andthat a curfew might be necessary. Even if that was his expectation,it arose only because of contemplated arrests to be made on his initiative.
We have held that the contemplated arrests were to be made on ajoint decision of the 3rd and 4th defendants. In the case of the 3rddefendant, the explanation that the decision was a part of a plan tooverthrow the Government is to be found in his own statement at TempleTrees. But since we do not propose to use that statement as againstother defendants, we shall refer to evidence that furnishes the sameexplanation for that decision in the case of the 4th defendant also.
We accept without hesitation the evidence of Stanley Senanayakethat on 26th January the 4th defendant informed him of details of aplan to be carried out on the 27th. The impression created in the mindof Senanayake was that the intention was to overthrow the Government,and even if that phrase was not used it is clear from the details disclosedthat such was in fact the intention. We will mention here a few matterswhich confirm the truth of Senanayake’s evidence on this point.
(а)Some of the notes admittedly written by the 4th defendant inthe P 20 documents, particularly “ Protective custody of Ministers ”,“ should Abhaya be taken ”, ** News to the World ”, and “ Curfew ”and at the least three of the notes in P 19 series “ Wire Break 12.40a.m. ”, *' arrest parties to be notified earlier ”, and “ Sing-Sing trustedguards ”, which we hold were dictated by the 4th defendant, havereceived at the trial only specious or frivolous explanations fromthe defence. (One instance of such frivolity was the suggestion madeat an early stage of the trial that the last-mentioned note could read“ Sing Song tired or treated guests ” as a reminder from the 4thdefendant to the 19th defendant to “ organise singing ” after thewedding reception at the 4th defendant’s house on 20th January.)Having rejected as false the explanations offered for these notes,we are satisfied that they in fact related to a plan of the nature deposedto in the evidence of Stanley Senanayake.
(б)The 4th defendant admitted that he asked Vandendriesen on25th January to bring him three Stirling guns from the Depot, andthat he received them that evening. We have elsewhere mentioned
the proved fact that Vandendriesen directed the Depot Armourernot to make an entry about the removal of these guns. There areoniy two possible explanations for such a direction from Vandendriesen:firstly, his own explanation that he had been earlier informed by the4th defendant of a plan to overthrow the Government in which the4th defendant invited him to join; and secondly, that the 4bh defendanttold him that entries should not be made. Even if we do not acton the explanation given by Vandendriesen, the alternative explanationis also adverse to the 4th defendant. If he required the guns in con-nection with official orders for arrests, he had no reason to concealthe fact that they were issued to him from the Depot.
(c) There is the admitted fact that the ammunition, which wouldhave been used by the 4th defendant on 27th January for the gunsprocured from the Depot, was in fact obtained from the TrainingSchool at Katukurunda. We have earlier stated our conclusion thatthe request made to Brohier for ammunition from the Training Schoolwas extraordinary and was made only because ammunition could notbe obtained from the Depot without the knowledge of Mr. Kelaart,then Superintendent of the Depot. We have no explanation from the4th defendant why it was that he was anxious to conceal fromMr’.' Kelaart his need for ammunition.
•
*(d) We have shown already that there is sufficient corroboration of
the evidence of Johnpulle that the 4th defendant ordered him toarrest the Navy Commander. The evidence of the 4th defendant alsoconfirms other items of Johnpulle’s evidence ; the order given to himto have Radio cars available with loud hailers; to have fifteen motorcyclists with pillion riders, all armed, ready at the Traffic Station, apoint which is borne out by a note made by the 4th defendant onP 20 A. Because these orders were in fact given to Johnpulle, thereis good reason to think that the 4tn "deiendant also told Johnpullethe purpose of these orders. Johnpulle’s evidence, that the purposementioned by the 4th defendant was a change or overthrow of theGovernment, is confirmed by the evidence of P. R. de S. Seneviratnethat the 4th defendant told him on the 27th that there would be a“ change ”.
The 3rd defendant has admitted in evidence that all his “ thinkingand planning ” from the 17th January 1962 resulted from a discussionwhich the 4th defendant initiated on that day. Our finding, alreadyreached, that the 3rd defendant thereafter planned in concert withthe 4th defendant to overthrow the Government further confirmsthe evidence of Stanley Senanayake that the 4th defendant informedhim of such a plan.
(/) Having accepted the truth of Johnpulle’s evidence that the 4thdefendant informed him on the 27th of a plan to overthrow theGovernment, and ordered him to arrest the Navy Commander, wesee no reason to disbelieve his evidence that Vandendriesen told him
before the evening conference that his (Vandendriesen’s) job was toarrest Mr. Bandaranaike. We can therefore accept Vandendriesen’sown evidence on this point.
u
(g) During our consideration of the evidence of the 3rd and 4thdefendants we have rejected their defence that Mr. Bandaranaikewas himself planning to take control of the Government unlawfully,and the defence that they apprehended such action on the part ofMr. Bandaranaike. That being so, the orders given by the 4th defendantto various Police officers on the 25th, 26th and 27th January mustbe held to have been given in preparation for some quite extraordinaryaction intended to be taken on the night of the 27th. These orders,especially those given at the evening conference on the 27th at EchelonSquare to guard strategic positions and to restrain the movements ofService Commanders, and the tentative order given to the 18thdefendant about watching the movements of Attygalle, Superintendentof Police, C. I. D., were on the entirety of the evidence consistent onlywith a plan to overthrow the Government on the night of the 27th.
The 4th defendant admittedly acted in concert with the 3rd defendantfrom about 17th January 1962. We hold that the purpose of theseactivities was to prepare plans to overthrow the Government by utilisingMilitary and Police power available to these defendants.
We have accepted as true the evidence of Stanley Senanayake thaton 26th January the 4th defendant disclosed to him many details of aplan intended to overthrow the Government. In so far as these weredetails of steps to be taken in furtherance of the plan, such as arrestsof Leftists, participation of Army and Police officers, the imposition of acurfew, the use of code names, and the announcement of the newGovernment by Radio, the details were quite correctly stated by the4th defendant. There is clear confirmation of such details in the oralevidence and in the documents which have been produced. But therewere also in the details disclosed by the 4th defendant some remarkswhich we might describe as bombast or puff (intended perhaps to impressSenanayake) or as plain false talk. Of this nature were the remarksthat the Governor-General, Mr. Dudley Senanayake and Sir JohnKotelawala had expressly or tacitly approved of the plan, and thatorders were coming “ right from the top * We much prefer to act onthe statement made by the 3rd defendant that the Governor-Generalwas not aware of the plan, and that politicians were not involved.
Although Stanley Senanayake gave truthful evidence that the 4thdefendant made these remarks, the Attorney-General did not acceptthe factual correctness of the remarks—nor do we.
We have now to consider in greater detail the evidence of 19th defendantand the case against him.
19th defendant joined the Police Force in 1942 as a Sub-Inspector.In 1956 he became an A. S. P. He worked in the Training School from1958 to August 1961, first under Stanley Senanayake and then under
Brohier. In August 1961 he was transferred to Colombo as PersonalAssistant to D. I. G. (1), viz., 4th defendant, and from that time he wasin daily contact with 4th defendant.
He has said that there had been no displeasure between him and StanleySenanayake, but there were quarrels between him and 5 th defendantfrom 1957 to 1962. Brohier and 4th defendant have supported 19thdefendant in regard to the ill-feeling which 19th defendant had for 5thdefendant.
A question which kept cropping up during the trial was whether 19thdefendant, in addition to being Personal Assistant to 4th defendant,was also Personal Assistant to the I. G. P. We need not go into thismatter very closely. We are satisfied that even though there was noformal appointment in that capacity, 19th defendant did in fact functionas Personal Assistant to the t. G. P. Numerous documents which showthat have be n produced. Mr. Abeykoon’s evidence was that he hadno Personal Assistant, although his predecessors in the office of I. G. P.had one, and that all he had was a Social Secretary who could be anyPersonal Assistant of the five D. I. G’s. This is not an accurate de scriptionof the situation. If that was the true position, we should have expectedsome documentary evidence of it to be forthcoming to rebut the massof documents produced to support the 19th defendant’s claim in thisconnection. *■
The first allegation in point of time against 19th defendant is thathe was present in 4th defendant’s house on the 25th January eveningwhen 4th defendant received the 3 guns brought by Vandendriesen.19th defendant has denied his presence at that time. According toVandendriesen, 19 th defendant was present and said that he wouldattend to the question of ammunition, because no ammunition hadbeen brought by Vandendriesen. Later that evening 19th defendantadmittedly drove 4th defendant, A. S. P. Sol Gunatiiieke; and A. S. P.■Johnpulle to the Mesa, because a session of bridge had been arrangedfor 6.30 p.m.
It is also relevant that 19th defendant, according to Brohier, telephonedearly on the 26th morning asking Brohier to send Siri Chandra to him, andBrohier did so. Siri Chandra joined the Police Force in 1939. Hebecame a Sub-Inspector in 1956, and from that time till 1962 he workedat the Training School. He would therefore have been well known to19th defendant. We hold that 19th defendant made the telephonecall which is entered in the Trunk Call Ticket {P 136) although he hasdenied it. Siri Chandra said that he met 19th defendant at the latter’sflat, on Brohier’s instructions, and reported back to B ohier on his returnto the Training School; that he told Brohier what 19th defendant hadsaid about a coup which had been arranged for the 27th; and Brohierthen asked him to report to him next day, and also told him that hewould give him a small parcel to be taken to 19th defendant. Is SiriChandra to be believed on this question of the parcel ? Brohier atfirst admitted that he told Siri Chandra this, though he later denied it.
There is, however, the admitted fact th tSiri Chandra did cany a parcelof ammunition to 19th defendant from Brohier on the 27th. Brohierhas spoken to meeting 4th and 19th defendants in 4th defendant’s officeon the 26th afternoon. He said that when 19th defendant reminded4th defendant about ladders and ammunition, 4th defendant asked •Brohier to send some Training School ladders and some Stirling gunammunition on the 27th—the latter to he sent if the Depot required itor called for it. 19th defendant then told Brohier that the ammunitioncould be sent by Siri Chandra on the 27th. This explains why Brohierdid not wait for the Depot to call for the ammunition. He sent it bySiri Chandra to 19th defendant, and what is also important is that 19thdefendant said in evidence that he telephoned 4th defendant and informedhim of its arrival.
19th defendant has denied meeting Siri Chandra on the 26th morning,and we have dealt with this matter elsewhere. We find that they didmeet at 19th defendant’s residence and that 19th defendant then toldSiri Chandra about the plot, which necessitated Siri Chandra returningon the following day and taking with him a parcel of ammunition. Theinformation about the plot which 19th defendant gave Siri Chandrais evidence against 19th defendant, because it implicates him as aconspirator.
19th defendant has contradicted. Brohier’s account of what happenedin 4th defendant’s office on the 26th afternoon. He has admitted thatho was present when Brohier gave 4th defendant some packs of playingcards, but he said that he left the office soon after that and returnedto his own office. He has denied that he suggested to Brohier on thatafternoon that he should send ammunition through Siri Chandra nextday. Brohier contradicted him on this point. It is significant that theparcel of ammunition which was sent through Siri Chandra from theTraining School on the 27th was sent to l'&ch'defendant s fiat. 19thdefendant has stated that Siri Chandra gave him the ammunition on the27th, saying that Brohier had sent it for 4th defendant at the requestof Vandendriesen; and when he telephoned 4th defendant about it, thelatter asked him to keep it till Vandendriesen collected it. Yet Vanden-drie en never collected it, nor did 19th defendant telephone Vandendriesento collect it. Instead, 19 th defendant kept it in his flat. We do notbelieve that Siri Chandra told 19th defendant anything about Vanden-driesen. If 19th defendant was told either by 4th defendant or bySiri Chandra that the ammunition was meant for Vandendriesen, weshould have expected 19th defendant to telephone Vandendriesen or tohand the ammunition to him later that evening—which he obviouslydid not.do.
Nothing can be clearer than that the ammunition which was despatchedfrom the Training School on the 27th morning was not intended for theDepot but for 19th defendant, and ultimately for 4th defendant. Noammunition was called for by the Depot; there is no entry in any of the
books maintained in the Training School Armoury regarding th 'despatchof ammunition to the Depot ; no ammunition ever reached the Depot atthis time. In spite of Mr. Kannangara’s strenuous efforts to argue (1)that the ammunition was sent to the Depot and (2) that if the tornout page of the Officers Visiting Book (P6) and some Register which isnot before us, and which we do not believe to have existed, were to beproduced, the proof of this contention would be forthcoming, we rejectsuch a view. 19th defendant tried to make out that apart from theArmoury Inventory Book (P8) there was another Register in whichstocks of ammunition in the Armoury would be entered. But his ownentries in the books P6 and P8 show that there was no other Register.The ontry made by Armourer P. S. James in the Routine InformationBook (P7) and a corresponding entry in the Inventory Book (P8) showclearly that 378 rounds of h avy automatic ammunition were despatchedthat morning, and they were undoubtedly despatched through SiriChandra to 19th defendant.
19th defendant has denied that he was present on the aftemnoon of20th January at the time when Stanley Senanayake says he was told by4 th defendant about the plan to overthrow the Government, or on the27 th morning when Johnpulle was given similar information by 4thdefendant. Stanley Senanayake said that both 4'h defendant and 19thdefendant, on the 26th afternoon, gave him the names and addresses of
Leftists and asked him to take them down. It was this list, he said,
that was burnt on the 28th after he returned from Temple Trees. Hewas not told what to do about the persons in the list.
Mr. Kannangara marked as 19D14 the following passage which occursat the commencement of Stanley Senanayake’s statement made onFebruary 19th at Temple Trees; “ I destroyed a document subsequentto my making a statement on the first date on the night of 27th/28th .1.62.The document I destroyed -:o- -what I have written down in connectionwith the names of the Leftist leaders. Mr. C. C. Dissanayake askedme where the Ministers lived and I gave the addresses.’* Senanayakewas here referring to what took place on the 26th afternoon. Mr.Karmangara argued that because the word “ Ministers ” was writtenafter the words “ Leftist leaders ” had been scored off, the alterationwas wrongly made. We do not accept this argument. A mistake ofrecording had been made and it was corrected, as A. S. P. Ambalavanar,who recorded the statement and made the correction, has said.
Svsniey Senanayake referred to the same act of destruction in astatement ho made on 16th February at the C. I. D. Office. Th followingpassage was put to him in cross-examination by Mr. Kannangara." At*: r i made my statement at Temple Trees, the paper containing theaddvsses of the Leftist leaders was burnt at my instructions. Theaddresses were given to me on 26.1.62 afternoon by D. I. G. Range 1.”Mr. K.vunansara argued from this passage that since no reference is madeir. i: 😮 19th defendant, it must be held that 19th defendant was not present.Yh:s is a fallacious assumption which underlies several instances of
marking-4 of passages from the statements of witnesses at this trial.There seemed: to be an erroneous impression in the minds of some of theCourts 1 appearing for the defendants that if they marked a passagedealing with a particular matter, the omission of the witness to referin that passage to all the other matters which the witness may havespoken to in an earlier statement would disprove what the witnesssaid in evidence'. But we do not expect a witness to refer to everydetail in every statement he makes during an investigation. Further,a witness may be questioned on a particular point, and he would answeronly that question : it may well he that if he had been questioned morefully he would have given fuller information or more details.
Counsel are presumed to know best how to conduct the case of theirclients, and they were permitted to mark passages from earlier state-ments made by witnesses. But it does not follow that every omissionin a passage which was marked disproves what the witness says in evi-dence ; nor are we prepared to hold that because a particular matterwas left unsaid on a particular occasion, it could not have been saidearlier by the witness, or that the witness would have been unable tospeak to it if he had been questioned.
A further item of evidence which Stanley Senanayake gave in thisconnection was that 19th defendant said, patting him on the back,“ Everything is well planned and will go through, don’t worry.” Itis very probable that 19th defendant saw that Senanayake was astonishedby the information he had just heard, and thought that he could eventake the liberty of patting a superior officer on the back.
It was suggested by Counsel for the defence that there was no needfor 4th defendant or 19th defendant to disclose any plan to StanleySenanayake, who does not claim to have been given any task. Counselwho put forward this argument lost sight of the evidence given by StanleySenanayake that on the 27th morning, 4th defendant spoke to himabout signing orders—a matter which also has been noted by 4thdefendant in his note P20J (*‘ SPC sign orders ”). We do not know, ofcourse, all the plans that had been made for using Stanley Senanayake,but the Superintendent of Police, Colombo, would have been a veryuseful person to have in a conspiracy of this nature.
Mr. Kannangara argued that there could not have been such a meetingof Stanley Senanayake, 4th defendant and 19th defendant cn the 26thafternoon because there was no time. Wfe do not agree. The evidenceshows that there was ample time, and it is not necessary to examineit in detail.
19th defendant has denied that he was present when Johnpulle and20th defendant were being briefed on the 27th morning. Johnpullehas said that he was present, and 19th defendant’s Code name was givento him as “ Mack Johnpulle said further that he was told to shadowCommodore Rajan Kadirgamar and inform 19th defendant ofKadirgamar’s whereabouts by telephone at 3, 6, 11 p.m. and 12.01 a.m.
4th. defendant has said that 19th defendant’s Code name was Mack.In P20° written by 4th defendant the first entry reads: ** Who is totake Mack’s position at 94826 from
1700
Times 1600,1700 ”
94826 is the telephone number of 19th defendant’s house. 4th defendantexplained that 19th defendant wanted to go to Mount Lavinia on the27th, and he was told to be back by 5 p.m. as he was needed for some duty.19th defendant later said that he was not going. 4th defendant wasnot able to explain the meaning of the figures 1500, 1700. On the otherhand there is Johnpulle’s evidence just referred to, regarding the signi-ficance of the figures 1500, 1700, which could stand for 3 p.m. and 6 p.m.4th defendant said that 19th defendant had not been assigned a part,and his only assignment was to go to 4th defendant’s house. This iscontradicted by 19th defendant’s own note Pi9B which again has anentry of his telephone No. 94826 and under that entry the words“ Reports re poultry every 2 hrs. Final Report 12.01 a.m.” There is, inthese items, corroboration of Johnpulle’s evidence which touches 19thdefendant. We hold that 19th defendant was to receive telephonereports regarding certain persons, including Rajan Kadirgamar.
When A.S.P. Percy Seneviratne was being cross-examined it wassuggested to him, and he accepted the suggestion, that 19th defendanthad two brothers, who were interested in poultry and had poultry farms.We think that a far-fetched attempt was made at that time to explainthe entries ** (2) Cecil’s house ” and “ (3) Francis’ house ” in 19thdefendant’s note P19 B by connecting these two items with the entiy justreferred to, beginning “ Reports re poultry”. Another explanationoffered by 4th defendant was that 19 th defendant made the entry at4th defendant’s request on 25th January as he had to remind 4th- defendant about it when Stanley Senanayake came to the office on the26th morning, and it meant that Stanley was to have an eye on Leftistleaders and have their movements checked every two hours.
We cannot overlook the fact that 19th defendant was 4th defendant’sPersonal Assistant. Yet in spite of these entries he claims to havebeen kept in ignorance of everything that was being planned by 4thdefendant, even of the alleged counter-plan, although 4ih defendanthad no reason to distrust him. What makes this so improbable is thatJohnpulle, whose character was attacked mercilessly by the defence,was admittedly entrusted with the very important task of shadowingKadirgamar and reporting any unusual activity at Naval Headquarters,and for this task he was also given the assistance of 20th defendant.
19th defendant has, in our view, falsely attempted to suppress hisknowledge of certain matters. For instance, he said that he knewno hing of the conference fixed for 6 p.m. on January 27th. When shownhis' note P19b which reads ** 6 p.m.—SPC Office—Risk ” he s-. ughtto explain it by saying that it referred to the time at which some stackerswere to assemble near the office of S.P., Colombo before going back towork in the Harbour. To strengthen this position he said that theconference was fixed for 6.30 p.m. This is untrue, because all theofficers, who were summoned to that conference have said that theywere asked to attend at 6 p.m. 19th defendant could not have beentold it was at another time.
19th defendant has denied that he saw or spoke to 5th defendantat the Mess on the 27th evening. He admitted that he saw Samaraweerathere, but he said that he did not see Johnpulle. We have the evidenceof Johnpulle, who said he saw 5 th defendant and 19th defendant togetherand 5th defendant spoke to him at about 7.30 p.m. Johnpulle is corro-borated, as to the presence of these two def ndants, by Samaraweera,though the versions of these two witnesses in respect of certain detailsdo not tally—for example, as to what Samaraweera was doing whenJohnpulle claims to have spoken to 6th defendant, and where Johnpullewas when Samaraweera fir^t saw him. It could well be that Johnpullespoke to 5th defendant and Samaraweera also spoke to 5:h defendant,and by the time Samaraweera spoke to 5th defendant the latter had gotinto his car. We consider 19th defendant’s denial of 5th defendant’spresence at the Mess at that time to be false.
There is the evidence of Brohier which supports the evidenc of 19thdefendant as to the strained relations between 6th defendant and 19thdefendant. But as in the case of 5th defendant and 4th defendant whohad also been-enemies at on time, we think that 5th def ndant and19th defendant had become friends. And just as 4th defendant wasnot prepared to say that he and 5th defendant had made up theirdifferences, so also 19th defendant was not prepared to say that heand 5th defendant had become reconciled.
According to 19th defendant, he reached 4th defendant’s house from-the Mess at about 7.45 p.m. but 4th defendant was not at home. 4thdefendant returned shortly after that, and 19; h defendant said thathe also saw Stanley S nanayake there then. 4th defendant asked 19thdefendant “ to hang around ” because he will be needed. 19th defendantsaid he next saw 4th defendant at about 9 p.m., and as he had beenasked to return home for dinner he asked 4th defendant whether hecould go home. Under cross-examination he said that 4th defendantreplied “ No, there is something serious ”. When he asked 4th defendantif it was the arre t of the Leftist leaders, the latter replied :“ Some-
thing more serious, but the Police are ready for any situation.” Inexamination-in-chief 19th defendant’s account of this talk with 4thdefendant ran :“ Before I went for dinner I spoke to Mr. Dissanayake
and a ked him ‘ Are we to arre t the Leftist 1 aders today ? ’ He said‘ No, the situation was much worse, so you had better hang around *.”19th defendant said he was then asked to go home and come back quickly.
According to 4th defendant, before 9 p.m. he had telephoned Mrs.Abeykoon and “ Temple Trees ” from “ Horn elc a ” and ascertainedthat the I.G.P. was at ** Temple Trees ” where he had gone to meet
8B. 7431 <7/65)
the Prime Minister ; this was the first intimation he had about the PrimeMinister being in Colombo and not at Kataragama ; he also learnt thattheD.I.G;, C.I.D., andS.P.,C.I.D., were at “Temple Trees” at that time.Jle therefore concluded that what they were fearing would not takeplace, since he also learnt that N. Q. D as was in the Chilaw District,Udugama was in Jaffna, and Kadirgamar was at the pictures. Inour view, it was on 1 arning some of these details that 4th defendantrealised that the coup had to be abandoned, and when he describedthe seriousness of the situation to 19th defendant he really describedthe serious position in which the conspirators by then found themselvesto be in.
To sum up our findings in respect of 19th defendant, we hold :—
19th defendant telephoned to Brohier on the morning of January
26th to send Siri Chandra to meet him, and Siri Chandra wastaken to 19th defendant’s residence by P. S. Subramaniamthat same morning.
Siri Chandra was informed by- 19th defendant about the coup
which was to take place on the 27th, and he was asked toreturn on the 27 th to 19th defendant’s residence as he mightbe needed to attend to the telephone.
Siri Chandra obeyed this request by going to 19th defendant’s
‘residence on the 27th afternoon. He took to 19th defendanta parcel containing 378 rounds of ammunition because 19thdefendant had asked Brohier to send it through Siri Chandra.At Brohier’s request, Arumugam had got the Training SchoolArmourer to parcel this ammunition and had sent it to SinChandra’s house that morning.
19th defendant was present when 4th defendant spoke to Stanley
Senanayake on two occasions on January 26th about the planto overthrow the Government.
19th defendant was present when 4th defendant briefed John-
pulle and 20th defendant, on the m rning cf 27th January,about watching and arrest ing Commodore Kadirgamar and theother details to which Johnpulle spoke.
On the afternoon of 27th January, 19th defendant, perhaps on
4th defendant’s instructions, telephoned to Brohier to ascer-tain the whereabouts of Mr. N. Q. Dias.
19;h defendant met 6th defendant at the Officers’ Mess on the
night of 27 th Janua y. The evidence of Johnpulle andSamaraweera establishes th:s.
19th defendant was at 4th defendant’s house from about 7.45 p.m.
on the 27th night.
We are unable to accept 19th defendant's evidence on many points,and W3 hold that he falsely denied his awareness of, and his complicityin, this conspiracy.
..•.Much of the evidence implicating the 20th defendant came fromJohnpulle, who was an accomplice in the alleged conspiracy. Accordingto him, the 20th defendant was present in the 4th defendant’s roomon 27th January, when the latter said to him and to the 20th defendant“ I have selected you chaps for the toughest assignment ” and thatthey had to arrest the Navy Commander about midnight. The 4thdefendant further ordered Johnpulle to have the Navy Commander’s,movements watched until midnight. Despite the 4th defendant’s.denials, we have already held this evidence of Johnpulle to be truebecause there are many items of evidence which confirm it. Those'items we need not recount here. Nor need we recount again the detailsof what the 4th defendant said in the presence of the 20th defendant.
The 4th defendant said that he asked Johnpulle only to have themovements of the Navy Commander watched, and that he told the20th defendant that he may have to assist Johnpulle in that assignment.The facts about this watching of the Navy Commander show how veryunlikely it was that such an order would have been given to the 20thdefendant. Inspector Samaradasa and a constable kept track of theNavy Commander’s movements from about noon until he ultimatelywent to Temple Trees at night. Johnpulle himself did nothing, exceptto give the order for watching to Samaradasa, and to receive reportsfrom him on three or four occasions. The 27th was a day on which the4th defendant assigned important tasks to nearly every Gazetted officerunder him in Colombo. It is absurd to suppose that he would haveutilized the 20th defendant merely to assist another Assistant Superin-tendent of Police in what should have appeared to be, and in fact provedto be, so simple a task. As was to be expected, the task was competentlyperformed by one Inspector and one Constable.
, The 20th defendant’s own conduct confirms the truth of Johnpulle’sevidence that the task' assigned' was to arrest the Navy Commander.He did nothing to assist in watching, but he drew his Luger pistol about
p.m. from the Fort Police Armoury, and he fetched a box ofammunition some time later from the Officers’ Mess. It was provedthat other officers who had orders to make arrests or to guard or takecharge of strategic positions armed themselves that night. Counselcould point only to one instance, that of Assistant Superintendent ofPolice Abeysekere, who carried arms merely as a precaution, and notbecause of the special nature of his assignment. But Abeysekereexplained that he had to come from Mount Lavinia to Police Head-quarters at midnight; no doubt he would not have known whether ornot he would be returning home in day-light. A similar explanationis not available to the 20th defendant, who relied on the 4th defendant’syersion that all he might have to do was to assist in watching the NavyCommander who resided in the heart of the Colombo residential area.
Johnpulle’s evidence was that he went to the 4th defendant’s officeon the 27th morning because earlier the 20th defendant had phoned
his bungalow to inform him that the 4th defendant wanted to see him.Johnpulle furnished the additional detail that in this connection the20th defendant had first spoken on the telephone to Johnpulle’s son.
The 4th defendant, however, said that he had personally asked John-pulle to come to' see him. The defence suggested that this allegedphone call was a false invention by Johnpulle, designed to implicatethe 20th defendant. The call itself, if made by the 20th defendant,is of such little significance that we mention it only because the defencesuggestion of fabrication is typical of hundreds of such suggestionsmade during the trial. Johnpulle’s evidence was that he and the,4th defendant were the only persons in the room when the latter firstspoke to him. At that stage, the 4th defendant told him “ We aretaking over the Government today ”. The 19th and- 20th defendantscame in just after that and the 4th defendant then gave certain orders^Now if Johnpulle wished to implicate the 20th defendant falsely,, hewould surely have said that this very important remark was made inthe hearing of the 20th defendant. Why be satisfied with mention*of a telephone call, to which we refer in this judgment only becausewe hold that the 4th defendant falsely denied it ?
According to the evidence of Brohier, an accomplice, the 19th defendantreminded 4th defendant on the 26th afternoon about the Training♦ School ladders and ammunition. The 4th defendant told him to sendladders from the Training School to Johnpulle of the Traffic Branchon the following day. There is independent evidence from the Trainingschool witnesses that the ladders were sent on the 27th to the TrafficOffice. We have dealt with this evidence elsewhere and have acceptedthe same.
In P 20 E at item 11 there is an entry by the 4th defendant * Laddersat T. S.’ He explains this entry by saying that ladders were requiredin connection with the I. G. P’s Silver Wedding. The fact that ladderswere sent from the Training School to the Traffic Office on the 27thafternoon, tends to corroborate the evidence of Johnpulle on this point.
Constable Zoysa who was on reserve duty at the Traffic Stationstated that on the 27th afternoon, Sgt. Haleem brought the ladders andthey were kept outside the Police Station. Between 7 and 8 p.m. thatnight, 20th defendant came up to the Station in his car and tooted hishorn. He went up and the 20th defendant asked him to accept theladders.
Sgt. Haleem of the Police Training School stated that on the 27thabout 1 p.m., Sgt. Subramaniam of the Training School TransportOffice ordered him to bring the ladders to Echelon Square in Colomboand to give them to A. S. P. Johnpulle. An order to this effect wasgiven by Brohier when Sgt. Subramaniam and he were in the TransportOffice and Sgt. Subramaniam, the O.I.C. of the Transport Office, orderedhim to carry out this order. He brought the ladders to the TrafficOffice, Colombo, about 3 p.m. and inquired for Johnpulle. He was not
there. He then telephoned to Johnpulle that he had come from the■Training School with the ladders. Johnpulle told him to wait andthat he will come over to take charge of the ladders. He waited till itwas dark but Johnpulle did not turn up. About 7.20 p.m. the 20thdefendant came in his car and inquired from him what he was doingthere. When he told him about the ladders, 20th defendant a3kedhim to give charge of the ladders to the Reserve at the Traffic Stationand go away. 20th defendant’s office is close to the Traffic Office.
The fact that the 20th defendant asked Sgt. Haleem to give chargeof the ladders to the Traffic Office and asked the Traffic Office Reserveto accept the ladders, appears to indicate that he was aware of the orderwhich Johnpulle said was given by the 4th defendant to him to acceptthese ladders. The defence explains this action of 20th defendantas a normal order as he found Sgt. Haleem from the Training Schoolwaiting there to give over the ladders to Johnpulle.
4th defendant says that when he asked the 20th defendant to assistJohnpulle in watching the movements of the Naval Commander, 20thdefendant told him that he was the Duty Officer that day from 1 p.m.till 9 p.m. 4th defendant then told him that he will arrange with A.' S. P.Gunatilleka to relieve him of his Duty turn from 4 p.m. and took actionaccordingly. There is an entry by 4th defendant in P 20 C item 6,which he read as * Jirasingha—Gunetilleka at 4 p.m.*.
The 20th defendant has admitted that he owned a private Automaticpistol (P 111) and it was kept at the Fort Police Armoury. He drew this‘pistol about 6.15 p.m. on the 27th January, according to his statement(P 157). He returned this pi tol and ammunition to S. I. Meedin of theFort Police Station about 1.30 a.m. on the 28th, when he came roundwith Johnpulle and Chandra Seneviratne and gave orders that the menwho- were on stand-by at the Station, should stand down. If 4thdefendant had only asked 20th defendant to assist Johnpulle to watchthe movements of Rajan Kadirgamar, there was no necessity for himto draw his pistol. The fact that he has drawn his pistol that day ismore in kerping with Johnpulle’s evidence rhat 4th defendant toldthem that they should watch Kadirgamar and arrest him about midnighton receipt of an order.
Stanley Senanayake, S.P., Colombo, had stated in evidence that hewent to his office for the 6 p.m. conference on th? 27th. As the 4thdefendant was late, he was waiting in the office room of hi? PersonalAssi.tant, while the other officers were in his office. He was wo.riedat the time. Then 20th defendant came up to him and told him ** Iknow about it. If these things go through, the Police Service willcome out on top ”.
Counsel for the 20th defendant has pointed out that Stanley Senanayakehad not mentioned about this statement of 20th defendant in hi3 state-ments on the night of the 27th January, at Temple Trees or at the C.I.D.
Office on 16th February. In the 2nd part of his statement at Temple.Trees after dinner on 19th February, he stated that 20th defendant -said before the 6 p.m. conference that he knew all about it.^j It was.only in his final statement on 3rd March that he came out with the full.statement as subsequently related in Court. He suggested that this.’evidence is unreliable as it was a belated statement and that StanleySenanayake is an accomplice.
We have given our reasons for holding that he is not an accompliceand we are prepared to accept his evidence on this point as truthfulthough it was belated. So far as his statement was concerned, this wasof minor importance. He has no reason whatever to falsely implicatethe 20th defendant. This evidence strongly indi ates that 20th defendantwas aware of the action planned by 4th defendant and the purpose ofthe 6 p.m. conference. When he says that the Police Service will comeon top if these things go through, it means something more than thesuccessful watching of the movements of Rajan Kadirgamar and . evenarresting him or arresting Leftist Leaders. It undoubtedly refers tosome larger action contemplated by the 4th defendant with the assistanceof many Police Officers, the success of which will enhance the well-being'of the Police Service.T
ft■i _■
' * %.
Just after the 4th defendant attended the 6 p.m. conference on the4 27th January, he sent out the 20th defendant to arrange for a receptionofficer to be placed on duty at the entrance to the stairs leading up tothe office of the Superintendent of Police, Colombo, where this conferencewas to be held. This was to prevent unauthorised persons coming tothe conference. Shortly after that, Johnpulle was sent down to fetch4th defendant’s bag from his car.
Johnpulle stated that as hie was going down the stairs, he sawInspector Kandiah of the C.I.D. Kandiah told him that he had beensent by the D.I.G., C.I.D. in search of Stanley Senanayake. Johnpulle^replied that Senanayake had just left. According to Johnpulle andKandiah, the 20th defendant was within hearing distance at the time.Johnpulle said that 20th defendant was then re tinning from the FortPolice Station whilst Kandiah said that 20th defendant was followingJohnpulle and was just behind him. One of them is making a mistakeon this point, but in our view it does not detract from their evidencethat the 20th defendant was close at hand when this inquiry was made.Johnpulle says he quietly asked the 20th defendant to keep talking to
Kandiah.
/
Kandiah stated that Johnpulle told him that Stanley Senanayakeleft office a few minutes before. 20th defendant told him that he willtelephone to Senanayake’s bungalow and find out if he had gone home,and took him to the Fort Inspector’s office. There the 20th defendantdialled a number and told him that Senanayake had not gone homeas yet.
■ After Johnpulle met Kandiah, he returned -with 4th defendant’s bag.1He informed Senanayake that Inspector Kandiah had come therein search of Senanayake and that he had been sent by the D.I.G., C.I.D.-Then 4th defendant told him, “ Send him away He came downstairsand found the 20th defendant and Kandiah in the office of the Inspectorof Police, Fort. The 20th defendant was telephoning to Senanayake’sbungalow and inquiring for him. After this call, Kandiah left. John-pulle went to the Traffic Station and saw Kandiah telephoning to someone from there.
A little later, 20th defendant and Johnpulle returned to the conferenceroom. 4th defendant and Senanayake were then in Senanayake’s office.4th defendant told Senanayake, “ Go home and wait there. If anybodyasks you, say that I restrained you ”. Senanayake threw up his handsand said, “ I cannot go home ”. 4th defendant then told him, “ Thengo along with Johnpulle and stay in his place. I will come and takeyou ”. Johnpulle said that the 20th defendant was also present whenthis conversation took place. The 4th defendant told them, “ I havenothing more to tell you and Jirasingha ” and asked them to go away.After that, Senanayake drove Johnpulle in his car to Johnpulle’s house,taking a devious route. The 20th defendant came' there a little laterin his car.
. Kandiah substantially corroborated Johnpulle about this incident.He said that he went to the Traffic Station and informed the D.I.Q.,C.I.D. after the 20th defendant’s telephone call. Thereafter he leftwith the sergeant who came with him. We accept, the evidence ofJohnpulle and Kandiah about this incident without hesitation.
" It has been suggested for the defence that if he was returning fromthe Fort Police Station when Johnpulle spoke to Kandiah, the 20thdefendant would not have known that Senanayake was still at his officeand the further action that he took was only to assist Inspector Kandiahto locate Senanayake.-
Though it is quite possible that the 20th defendant was returningfrom the Police Station after arranging for a reception officer whenthis conversation started, we hold that the action he took in takingKandiah to the . Fort Inspector’s office, telephoning Senanayake’sbungalow and telling Kandiah that Senanayake had not reached home*was a deception practised on him on Johnpulle’s suggestion to putInspector Kandiah off the trail of Stanley Senanayake. This has beendone by him deliberately to thwart the investigations that the C.I.Diwere carrying out. The conduct of the 20th defendant in this mattershows a guilty knowledge on his part that the action taken by the 4thdefendant in holding this conference and otherwise, was for an unlawfulpurpose.5
The 4th defendant admits that he was informed by Johnpulle thattwo C.I.D. officers had come in search of Stanley Senanayake as he waswanted by the D.I.G., C.I.D. He told Johnpulle to inform them that
Senanayake was at a conference with him and that they could seehim after the conference. But before the conference started Senanayakecomplained of a head-ache and wanted to be excused. The 4th defendantasked him to go home and rest but he was not prepared to do so. OnJohnpulle’s suggestion he asked Senanayake to go with Johnpulle andstay at Johnpulle’s house. This they did.
The action taken by Johnpulle and 20th defendant does not support4th defendant’s version that the C.I.D. officers were to be told thatthey could speak to Senanayake after the conference. We disbelieve4th defendant’s evidence that he gave any such instructions toJohnpulle.
After they reached Johnpulle’s house, Johnpulle left his house fora short while to bring some liquor and to convey a message to Mrs. Senana-yake, leaving Senanayake and the 20th defendant behind. It woi^dappear from the evidence that Senanayake was not left alone that nighttill the 4th defendant called off his operation about II p,m. and theparties dispersed. Senanayake stated that he felt that he was beingguarded that night.
The 4th defendant met Inspector Suraweera of the Fort Police Stationas he was leaving the S. P’s office after this conference. He discoveredkfrom Inspector Suraweera that there was no stand-by party for thatbight at the Fort Police Station and no orders had been received forsuch a party. He ordered Inspector Suraweera to have a stand-byparty for that night. When he went to Johnpulle’s, he ascertainedthat no orders had been given by Stanley Senanayake for stand-byparties at several Police Stations as he had been directed to give. The4th defendant stated that Senanayake told him that he had forgottento issue these orders, and as his Personal Assistant was not available,he wanted 4th defendant’s permission to send the 20th defendant- to-alert these stations. Senanayake denies this and states that 4thdefendant ordered the 20th defendant to go round and alert thesestations.
•to alert their police stations. It may be noted that at the morning•conference, the 4th defendant ordered the gazetted officers of the WesternProvince (Central) Division to have stand-by parties at the variouspolice stations in their area.
It is significant that the 4th defendant who had a high reputationlor his punctuality, was about 45 minutes late for the 6 p.m. conference.This delay was due to the fact that he was discussing with the 3rd■defendant the information which Senanayake had given him that theI.G.P. questioned him on this matter. We accept the evidence ofSenanayake that it was the 4th defendant who ordered the 20th defendantto alert the police stations on his own and not because Senanayake hadforgotten to do so.
On the orders of the 4th defendant, the 20th defendant left Johnpulle’s-about 7.30 p.m. and alerted a number of Police Stations for that night—Cinnamon Gardens, Maradana, Bambalapitiya and Colpetty and askedtlxeir night patrol men to stand-by and not go out.
4th defendant stated that he next met 20th defendant about 9.45 p.m.at his house when he came with Johnpulle. He asked them o go homeand rest and to stay at their houses. He asked the 20th defendant todrop Senanayake at the latter’s bungalow on his way home but about
p.m., after the message from the I. G. P. was received, he learntfrom Johnpulle that Senanayake had refused to go home and 20thdefendant had taken him to his house. Senanayake’s version is different.He said that the 4th defendant tried to put him up. He thought thatthe 4th defendant wanted to take him to the 10.30 p.m. conference.So he pretended to be asleep. Later J hnpulle and' the 20th defendanttook him to the house of the 20th defendant.
On this point, Johnpulle stated that he was at home about 11 p.m.after the receipt of the message from the I. G. P. Then the 20thdefendant came there in a jeep with Stanley Senanayake. The threeof them went to 20th defendant’s house. Johnpulle returned home,leaving Senanayake and the 20th defendant there. He sent driverAriyadasa to be with Senanayake at the house of the 20th defendant.After that the 20th defendant came to Johnpulle’s house and told himthat it was not good enough to keep driver Ariyadasa w th Senanayake.He left saying that he was going to fetch A. S. P. C. Seneviratna.
Shortly after that, the 19th defendant came to Johnpulle’s houseand aft r that the 4th defendant too came there. The 4th def. ndanttold them that the thing has been called off and the Army and the Navyhave been put on a war footing. He also .old the 19th defendant toinform some others that the operation has been called off. The 4thdefendant left after that and Johnpulle went with the 19 th defendantto the house of the 20th defendant. He found the 20th defendantand Chandra Seneviralne there and informed them that this operationhas been called off. Senanayake who was sleeping there was also
informed of this. Senanayake then returned to his house. Johnpulle,Seneviratne and the 20th defendant saw Senanayake to his house:Thereafter they went round, and the 20th defendant ordered the stationsthat he had alerted to stand-down.
They went to the Fort Police Station and the 20 th defendant returnedhis pistol and ammunition to S. I. Meedin. Then they proceeded toPettah, Fore-Shore and Maradana Police Stations and dis-alerted them:Johnpulle and the 20th defendant also visited the house of their friendDalton Wijeratne after that.
Dalton Wijeratne stated that Johnpulle and 20th defendant came tohis house about 2 a.m. on the 28th and Johnpulle told him in the hearingof the 20th defendant that he had got into some trouble and to say thathe was playing bridge with him from evening till late that night. Helooked at the 20th defendant who smiled. He agreed to this. Laterhe telephoned the 20th defendant and asked him to inform Johnpullethat he could not do so.
– This witness admitted that in his statement to the C. I. D. on the8th February, he stated that about 2 a.m. on 28th January, he wasdisturbed by Johnpulle and 20th defendant. They told me that theywere in some trouble and wanted him to say that they were playing^bridge with.him. In his evidence, he was insistent that it was Johnpullewho stated so. He said he was excited at the time and had used theword * they * three times as the C. I. D. read out Johnpulle’s statementto him before his statement was recorded and he may have followedJohnpulle’s statement in using the word * they ’.
According to Johnpulle, both 20th defendant and he spoke to DaltonWijeratne and asked him to say that both of them were playing bridgewith him from about 7 p.m. till late that night.at Wiieratne’s house andWijeratne agreed. Later he went home and found that his house andcar had been searched. He then went back to Wijeratne’s and toldhim that he did not want Wijeratne to say this. He also telephoned to■the 20th defendant from Wijeratne’s house and told him that he wasnot relying on this alibi.
Wijeratne has admitted the second visit of Johnpulle to his houseand that he telephoned to the 20th defendant from his bungalow butdenies that it was Johnpulle who told him to call off the alibi. Wijeratneadmitted that Johnpulle, Moragoda and the 20th defendant playedbridge with him that day from 2.30 p.m. till about 5.30 p.m. at Johnpulle’shouse.
If Johnpulle wanted Wijeratne to support this alibi for him, it iselementary that they would have discussed the essentials of the alibi—where they played bridge, the time of play and who participated inthe game. Johnpulle as a Police officer would have realised that thisalibi will break down if at least these bare essentials were not agreed upon.
– Even i flhtre was no fill] discussion of details, the fact that Wijeratnehad played bridge the previous afternoon with Johnpulle, the 20thdefendant and another shows that what! was probably required ofWijeratne was a statement that the same game had continued till lateat night.
What is important in this evidence is that Johnpulle thought fit toplan a false alibi for himself, although he had done little that was appa-rently wrong between 6 p.m. and midnight. What he wished to concealwas the fact that he had been in the company of the 4th defendant:The 20th defendant was really in a worse situation for he had, on the4th defendant’s instructions, gone to several Police stations with- orders for stand-by parties to be ready. When Johnpulle thought ofan alibi for himself, he must surely have thought of the 20th defendant,who had been in his company during most of the previous eveningand night. The alibi he thought of, a game of Bridge with Wijeratne,also indicates this, for in fact he and the 20th defendant had playedbridge with Wijeratne.
Wijeratne was either mistaken or trying to help the 20th defendantwhen he. said that Johnpulle asked only for an alibi for himself. Thefact that Wijeratne phoned the 20th defendant to say that he couldnot provide the alibi also suggests that the alibi was intended to protectthe 20th defendant. We hold that Johnpulle asked for an alibi forboth.
To summarise our findings affecting the 20th defendant we holdthe following facts proved:—
' (1) On the 27th morning, it was the 20th defendant who askedJohnpulle to contact the 4th defendant.
That morning, the 3rd defendant told Johnpulle and the 20thdefendant that he had selected the two of them for the toughest task.He told Johnpulle to watch the movements of the Naval Commanderfrom that time onwards and asked both of them to proceed with a PoliceForce of two Inspectors, two Sergeants and thirty Constables aboutmidnight and arrest the Naval Commander on receipt of a messagein code * Holdfast—Arrest He also asked them to take the NavalCommander after his arrest to Army Headquarters and gain entranceby giving the code word ** Yathura They were to hand him overto Arndt, Superintendent of Police Headquarters, who would be there.Thereafter they were to report at Queen’s House.
The 20th defendant was present when the 4th defendant allottedseveral other tasks to Johnpulle, to wit—
(a) To telephone to the 19th defendant at 3 p.m. 5 p.m. 11 p.m.and 12.01 a.m. giving the movements of the Naval Commanderusing the code words ‘ Commo ’ for the Commander and‘ Roosting ' for sleeping.
(6) To send 15 motor-cycle patrols with armed pillion riders toTorrington Square at 11 p.m. and that the 19th defendantwould contact them.
To keep Radio Cars with loud-hailers ready at mid-night to
announce a curfew.
That ladders would come from the Training School and to accept
them and keep them at the Traffic Station.
To get a covered lorry to stand-by at the Traffic Station from
9 p.m.
The 20th defendant drew his revolver and ammunition from theFort Police Station about 6 p.m. on the 27th January. He returnedthe revolver with ammunition about 1.30 a.m. His box of ammunitionwas found in the house of JohnpuUe in the early hours of the 28th January.
(6) He told the Superintendent of Police, Colombo, when he appearedto be’ worried before the 6 p.m. conference on the 27th that he knewabout it and the Police Service will come on top if it goes through.
He helped Johnpulle to mislead the C. I. D. officers who camein search of the Superintendent of Police, Colombo, to his office andto send them away. He thus thwarted the investigations by the C.I.D.,
* of the actibn contemplated by the 4th defendant for that night.
He aleried certain Police Stations to have stand-by parties forthat night, on the orders of the 4th defendant.
On the orders of the 4th defendant, he took the Superintendentof Po’ice, Colombo, from the 4th defendant’s house about 10.30 p.m.and kept him at his own house till Johnpulle informed him about
p.m. that the 4th defendant had called off the operation.
After the operation was called off by the 4th defendant, he wentround with Johnpulle and C. Seneviratne about mid-night and informeda number of Police Stations to call off the stand-by parties.
He also ordered Inspector Samaradasa to call off the watchon the Naval Commander near Temple Trees about that time.
He ordered the Reserve Sergeant at the Traffic Station to acceptthe ladders brought from the Training School to Johnpulle.
He acquiesced in the attempt of Johnpulle to create a falsealibi for their joint activities of that night.
A consideration of these activities in conjunction with the criminalconspiracy proved against the 4th defendant drives us irresistibly tothe conclusion that 20th defendant was a guilty participant of thecriminal conspiracy proved against the 4th defendant. The cumulativeeffect of these proved circumstances is inconsistent with his innocenceupon any reasonable hypothesis.
We shall now consider the evidence affecting the 21st defendant V. E.Perera, Superintendent of Police, Galle. Arumugam stated that he hada conversation with the 5th defendant Zoysa on 7 th January about theloyalty of 21st defendant to Zoysa. We have dealt with this conver-sation elsewhere in our judgment and we are not relying on this evidence.
Inspector Cameron stated that on the 23rd or 24th January, 21stdefendant inspected three underground cells in the Galle Rampartsclose to the Police Station. One was used by the Public Works Depart-ment to store dynamite and the key of this cell was kept with the Police.They also had the keys of the other cells. Cameron stated that 21stdefendant was inspecting the cells with a view to accommodate thePolice Canteen as a part of the office was used by the canteen and thePolice office was over-crowded.
The suggestion for the Crown was that 21st defendant was lookingfor a suitable place to detain persons to be arrested by him on the nightof 27th January in connection with the alleged coup. In view of theevidence of Cameron and other Police officers who gave evidence aboutthis matter, we are unable to take an adverse view to the 21st defendantfrom this inspection. There is nothing in the evidence to suggest that21st defendant had received any instructions to arrest Mr. Neale deAlwisor any leftist political or trade union leaders or was even in contact with5th defendant in furtherance of the alleged conspiracy at the time ofthis inspection. It may well be that he was looking for alternate accom-modation for the Police canteen to relieve the congestion in the PoliceOffice, as stated by him at the time of this inspection and in his evidence.
It has been established in this case and admitted by 21st defendantthat Mr. and Mrs. Sidney de Zoysa and Mrs. Zoysa’s brother Jackson,the discharged 23rd defendant, visited him on the evening of 25th January.Jackson came to the house of Sunderalingam, A.S.P., Ambalangodathatafternoon and awaited the arrival of Mr. and Mrs. Zoysa. All of themhad tea there, and Mr. and Mrs. Zoysa and Jackson left in Zoysa’s carto Galle to visit the 21st defendant.
As the telephone line to Galle was out of order, Mr. Zoysa requestedSunderalingam to send a message to 21st defi ndant by the police radiotelephone of their visit. Sunderalingam stated that he asked Zoysaif he was to send a message that Mr. and Mrs. Zoysa and party wirecoming, and Mr. Zoysa told him to send a message that “a party” wascoming to see him. A Police radio telephone message was accordinglysent to 21st defendant through the Galle Police Station. Mr. Sundera-lingam has given evidence of this visit and the request of the 5th defendantto convey this message. Sgt. Kulasingham of the Galle Police stationstated that he received this radio message and conveyed it to the 21stdefendant who admitted the receipt of this message. He says that hedid not know who was coming till Mr. and Mrs. Zoysa and Mr. Jacksoncame to his house shortly after that, when he was getting ready to goto the club for tennis.
– Counsel for 21st defendant suggested that 5th defendant did not wishto disclose his name as it was irregular to send private messages by thepolice radio telephone. The suggestion for the Crown is that the 6thdefendant did not want his name disclosed &3 he was on a secret errandto meet police officers in furtherance of the alleged conspiracy. Thoughthe explanation given by the counsel for 21st defendant may be a possiblereason for the non-disclosure of 5th defendant’s name in this message,this fact and the visit on this day, are proved facts which we mustconsider along with the other evidence against the 21st defendant.
It has also been proved in this case that a telephone call was taken fromthe bungalow of the 4th defendant to the estate bungalow of Mr. Jacksonat 7.25 a.m. on the morning of 25th January. This was an officialpriority call which went through Police Headquarters’ InformationRoom. P. C. Munasinghe who connected this call at the InformationRoom, has stated that it was the 4th defendant who booked this calland who personally took the call when it was connected by him. 4thdefendant has denied any knowledge of this call and has stated that mem-bers of the C.R. & F.C. of which he was a member, and whose club housewas opposite his bungalow, used to drop in and take telephone calls fromhis official bungalow telephone without informing him. We accept theevidence of P. C. Munasinghe that this call was booked and taken by4 4th defendant. Munasinghe does not know what this call was about.
According to the 21st defendant, the visit of Mr. and Mrs. Zoysa waspurely a social call. They spent about half an hour with him and hiswife and left after tea. The Crown has led no evidence as to the natureof this visit. Evidence has been led of a visit by Mr. and Mrs. Zoysa onthe same night to the house of Mr. Brohier at the Training School andthe nature of the conversation that took place there with Brohier andocparately with Arumugam and Orr. This visit, to Mr. Brohier has notbeen challenged by Counsel for the 5th defendant, nor the evidence thatMr. Zoysa asked Brohier to obtain four telephone calls to S.P., Uva,S. P., N. C. JD., A.S.P., Bandarawela and A.S.P., Jaffna, which Brohierobtained for him. We have considered the evidence given by Brohierand Arumugam of this visit and have given our reasons for acceptingtheir evidence. The Crown suggests that the visit to the 21st defendantwas for the same purpose as 5th defendant’s visit to Brohier’s house.Only two of the telephone calls were effective and 5th defendant arrangedto meet S.P., Uva and S.P., N.C.D. on the following day.
Arumugam has given evidence of two visits to 5th defendant on 26thJanuary at 3 p.m. and 6 p.m. at his flat in Colombo with Orr, in pursuanceof instructions given by 5th defendant to them on 25th January atBrohier’s bungalow. Arumugam was cross-examined on the basis thatOrr and he had come to meet 5th defendant only once on that day about3 p.m. The submission by counsel that they did not meet the 5thdefendant but met only his office staff, on that visit, is not supported byany evidence.
: According to Arumugam, at the 6 p.m. visit, 5th defendant gave Orra letter in an envelope to be given to Brohier. He signed two documentsin their presence and gave one each to Orr and Arumugam, saying theywere detention orders. He also wrote out an unsigned note, gave itto Orr and asked both of them to go down south and show it to V. E.'Perera at Galle and Thambiah at Matara.
; Arumugam did not go on this trip to Galle and Matara. Orr’s orderly,police driver James stated that he drove Mr. and Mrs. Orr in Arumugam *scar to a bungalow on a hill at Galle about 3 miles inland from the Colombo- >Galle road. They left the Training School on 26th January after thefilm show and dinner. He drove as directed by Orr and turned left fromthe Colombo-Galle road shortly before they reached the Galle RailwayStation. Mr. and Mrs. Orr got down there and met a gentleman. Jameswas not familiar with the roads in Galle. He had been through Galleonly once before this on his way to Kataragama and back. He did notknow this bungalow nor the gentleman in question.
The 21st defendant admitted that Mr. and Mrs. Orr visited him aboutmidnight on the 26th at his bungalow. He denied that James drovethe car in which they came. He said that it was Orr who drove thatcar. James stated that Mrs. Orr stayed behind at this bungalow andhe drove Mr. Orr and the gentleman who was there to a bungalow atMatara. This bungalow too was some distance inland from the Galle-Matara road. He says he drove inland before reaching the Matara sign-board on the main Galle-Matara road. Mr. Orr and the other gentlemangot down and went to a bungalow. They returned in about 10 minutesand he drove them back to the bungalow at Galle. The gentleman gotdown there and he drove Mr. and Mrs. Orr back to the. Training Schooland reached there about 1 a.m.
21st defendant denied that he travelled in this car to Matara and back.According to him, Orr brought a message from the I.G.P. for the arrest ofMr. Neale de Alwis, M.P. for Baddegama and Mr. M. P. de Zoysa, a formersenator of the S.L.F.P. Counsel for 21st defendant elicited evidencethat the turn off to 21st defendant’s house was near the Galle Hospital,which according to the witnesses is about 2 miles from the Railway Stationand that there is another turn off near the remand jail close to the Gallerailway station where three roads meet which was the junction mentionedby James. There was also evidence that the turn off to Mr. Thambiah’shouse at Matara was past the Matara sign-board.
The house of 21st defendant is on a hill about 3 miles from the Colombo-Galle road. There can be no doubt that if James drove Mr. and Mrs. Orrto a bungalow at Galle, leaving the Training School after dinner on the26th and if Mr. and Mrs. Orr visited 21st defendant at his bungalow aboutmidnight on the same day as stated by 21st defendant, both of themare referring to the same visit.
Counsel has asked us to reject the evidence of James as untrue becauseodf the alleged misdescriptions of the routes to the houses of 21st.dk?fondant and Thambiah. There does not appear to us to be a realmifodeacription of the route to 21st defendant’s house. Considering thatdriver James had travelled up and down the Colombo-Matara road only(mint before this, he was quite unfamiliar with the minor roads at Galleand Matara, this trip was made quite late at night and Mr. Orr directed,him as to the route, one cannot reasonably expect him to give a moreaccurate description of the routes taken to the two bungalows at Gallearid Matara. He may quite well make some mistakes in the description-of those routes.
11 lias been suggested for the defence that James’ evidence has been-procured falsely to corroborate some alleged statement of Orr, who wasan accomplice. We are unable to accept the suggestion of defenceCounsel that all evidence adverse to the defence has been fabricated byHonior officers of the C.I.D., without adequate reasons for doing so.There are other facts to support James’ evidence that Orr usedArumugam’s car for this trip to Galle. Earlier on the same day the tripwhich these two officers made to Colombo was made in Arumugam’s car:When Orr went to Colombo on the 27th evening, he travelled with Ins-poctor' Ratnasingham in Ratnasingham’s car and the two Constables.^Yoiu Galle* whom Orr took to Colombo, travelled in Arumugam’s cardriven by Arumugam’s orderly P.C. Savial. In regard to this trip,them is evidence given by Arumugam, which cannot be false, namelytlm(. when he decided on the 27th evening that he would not go to Colombo,ho (old his orderly to take his car to Orr with a message that Orr coulduko tho car himself. Again on 1st February, when Brohier, Arumugamami Orr were sent for by the C.I.D., they travelled in Brohier’s car.R appears from this evidence that Orr did not during this period havetho use of Ilia-own car. If a borrowed car was thus used by Orr it isquite likely that the Police Driver James was called upon to drive it.Wo accept the evidence of P.C. James as true in spite of the denial ofSJlst defendant.
The case for the Crown is that 21st defendant received instructionstYom 5th defendant, either directly on the 25th when he visited 21stdefendant or on the 26th through Orr, for the arrest of Mr. Neale deAhvte and Mr. M. P. de Zoysa. The Crown seeks to draw this inferencetYom the conduct of the 21st defendant on and after the arrest of Mr. deAh*the evidence given by Arumugam about the instructions givenby >sh defendant on the 26th and Orr’s trip to 21st defendant shortly thereatW at dead of night.
Inspector Fernando stated that he received a telephone call from 21stvh*?©daiit, his S.P. on the morning of the 27th, asking him to come tohis Ytujgalow about 8 or 9 p.m. that night without making an entry.This evidence is accepted by 21st defendant and it shows that hev$*seu this visit kept secret from the other officers at the Baddegama
Police Station and the officers of the Galle Police Station. He says that•he believed that Orr had brought a genuine order from the I.G.P. andconsidered the order of a highly confidential nature as the message hadbeen sent verbally through a gazetted officer.
It was not unusual at this time for Police Officers to give importantorders to their subordinates verbally. 21D6 is a message sent from Police •Headquarters to 21st defendant by telephone. It had been receivedin his absence by A.S.P. Mahendran who has recorded the message andsubmitted it to 21st defendant. By this message, 21st defendant wasdirected to issue the orders given in that message, to his subordinateofficers verbally. We cannot rule out the possibility that the I.G.P.may send a very important and confidential order verbally through agazetted officer, though 21st defendant admitted that it was unusual.He said that Officers from the Training School were employed for variousduties in any part of the Island, in times of emergency.
If the Government had issued orders to the I.G.P. to arrest Leftist
*o
and Trade Union leaders, and these arrests were to be carried out aboutmidnight on the 27th, the I.G.P. should have found no difficulty in send-ing a gazetted officer from Police Headquarters or the Colombo Divisionto 21st defendant with this order, instead of sending a gazetted officerfrom Katukurunda on the 26th. There was no trouble expected inColombo on the 27th which could have prevented the I.G.P. from sendingan officer from Colombo with such a message.
According to 21st defendant, the message that Orr brought from the.I.G.P. was to carry out these two arrests on the 27th after midnight,on receipt of an order from the I.G.P., and that detention orders willbe issued. It would be quite clear to anyone that this was an order tobe ready to carry out the arrest of these two persons after midnight onthe 27th, but the arrests were to be carried out only on receipt of a furtherorder from the I.G.P. to do so, and. that detention orders will follow.
Though it is strictly illegal to arrest any person on a detention order,without the officer carrying out the arrest having the detention order inhis hand, it appears that such arrests have been made after the issue ofthe detention order but before the order was in fact sent to the officercarrying out the arrest. In view of this practice, which we must con-demn, we shall not hold it against 21st defendant if he had ordered thearrest of Neale de Alwis on a verbal order brought to him by Orr, whichhe believed to be a genuine order from the I. G. P.
Inspector Fernando reported to 21st defendant at his bungalow asordered. The latter told him to get a party ready to arrest Mr. Neale deAlwis after midnight and to come to the Galle Police Station with Sub-Inspector Perera of the Poddala Police Station about midnight. Ins-pector Fernando'stated that he asked 21st defendant what he should tellMr. Alwis if he questioned him as to the reasons for his arrest. He saidthat 21st defendant told him, “ Say something, say it is a detentionorder.”
•E7431(7/05)
If this evidence is true, it would appear that 21st defendant had•received no orders from the I. 6. P. as alleged by him, and the reference•to a detention order was merely an excuse, thought of at the spur of themoment.
21st defendant denies that he told Inspector Fernando “ Say something,say it is a detention order.” Counsel suggests that this is one of thePolice touches in the case. A passage from his statement to Mr. Abey-gunawardens, S. P., C. I. D. on 29th January was put to him tocontradict his evidence on this point. He had stated to Mr. Abeyguna-wardene, “ I did ask Mr. Fernando to bring Mr. Alwis somehow and evento go the extent of saying there is a detention order.” 21st defendantadmits that he made this statement but said that it was false. Therewas no reason for him to make a false statement on this point. In viewof this statement, it is quite clear that 21st defendant was not speakingthe truth in this Court. We accept the evidence of Inspector Fernandoon this point without hesitation.
Sub-Inspector Silva of Ratgama Police Station had come on the 27thabout 10 a.m. to the Galle Police Station to collect the pay. 21stdefendant asked him to make careful inquiries about Mr. M.. P. de Zoysaand report to him about 7 p.m. at his bungalow. He also asked him tokeep the Information Book open and S. I. Silva thought that no entrieswhatever should be made in the Information Book from the time he wentto make these enquiries. 21st defendant says that he only meant thatno entries should be made in the Information Book about these inquiries.In this instance too, he wanted the investigations carried out secretly.S. I. Silva made these inquiries secretly and made no entries in theInformation Book from the time he left for inquiry about 6 p.m.Mr. Zoysa was not at his house at Gintota and S. I. Silva was not able tofind out where he had gone. S. I. Silva went to 21st defendant’sbungalow about 7 p.m. and told him so. He asked him to make furtherinquiries about Mr. Zoysa and to report at the Galle Police Station at10 p.m.
He made inquiries again and found out that Mr. Zoysa was residing atDohiwela. He went to the Galle Police Station about 10 p.m. andreported to 21st defendant that Mr. Zoysa was residing at Dehiwela. 21stdefendant said “ Alright ” and asked him to wait. He also told him thathe would have to accompany Inspector Fernando to arrest Neale deAlwis. He thinks that 21st defendant told him that he had instructionsto arrest Mr. Alwis. About 12.30 a.m. Inspector Fernando came withS. I. Perera of Poddala and a police party in two Land Rovers. About
or 2 a.m., they left in three Land Rovers to effect his arrest.
If the arrest of Mr. Zoysa was ordered by the I. G. P. and was so highlyconfidential and important that the I. G. P. sent a gazetted officer as aspecial messenger with verbal orders for this purpose, it is surprising that21st defendant took no steps to inform the I. G. P. that Mr. Zoysa wassaid to be residing at Dehiwela, so that he may take the necessary stepsto effect this arrest.
Mr. Hopman, A. S. P. Coastal, Galle, stated that on the 27th aboutdusk, 21st defendant telephoned to him to his bungalow to come to thePolice Station about midnight. He was not told at the time nor did heask why he was wanted. About noon that day, 21st defendant had told;him in the office to send P. S. Gunasinghe to S. I. Dissanayake, Officer-in-Charge Habaraduwa and S. I. Ratnasingham, Officer-in-Charge Udugamaand direct them to report to 21st defendant. He gave orders to Sgt.Gunasinghe accordingly. Sgt. Gunasinghe admits the receipt of thisorder from Mr. Hopman about noon that day. He says that he wasasked to direct those two officers to report to the 21st defendant.
Mr. Hopman reported at the Police Station about midnight.Mr. Mahmud, A. S. P. (Inland) was already there. Within a few minutes ofhis arrival, 21st defendant came there. They met at the foot of the stepsleading to the Police Station. Hopman says that 21st defendant showedhim a radio message from the I. G. P. stating that no action should betaken on any special orders unless issued personally by him. 21stdefendant asked him if he understood that message. Hopman told himthat he did not know what it was about and suggested to him to telephoneto Colombo and find out what he meant. They were chatting there andthe 21st defendant was expecting the Inspector of Police, Baddegama.Hopman says that he was told by 21st defendant in the course of thi9conversation that he wanted Mr. Neale de Alwis arrested. Hopman sayshe did not a. k any questions about this arrest. He thought that 21st.defendant, being the Superintendent of Police, would tell him the reasonfor the arrest, if he wanted to do so.
Sometime later, the Inspector of Police, Baddegama came there, and21st defendant gave him instructions. The Inspector left soon afterthat. They waited till the Inspector returned. During that time, 21stdefendant told him to prepare a room to keep Mr. de Alwis when he was-brought; – They-inspected the rooms and 21st defendant selected theoffice of one of the Sub-Inspectors. Hopman told Inspector Goonetilleke,Officer-in-Charge to arrange that room for the detention of Mr. Alwis.
21st defendant stated that he informed Mr. Hopman and Mr. Mahamudabout the order for the arrest of Mr. Alwis that morning in the office. Ithas been suggested by Counsel for 21st defendant that Hopman is denyingthis as he does not wish to associate himself with any knowledge of this,impending arrest till the last moment. He also suggested that most of-the witnesses did not wish to admit any fact favourable to 21st defendantthrough fear that the Government or the investigating authorities maytake revenge on them.
We do not see any valid reason for Hopman to suppress this evidenceif he had been told of this arrest in. the morning. He was in no wayresponsible for this arrest or for the order to carry out the arrest. Hewas the A. S. P. (Coastal) and this arrest wa* to be carried out in the areaof the A. S. P. (Inland). If the 21st defendant had told him that he hadn ceived an order from the I. G. P. to carry out this arrest, there is stillless reason for Hopman to suppress this fact.
21sb defendant told Inspector Fernando about the ai rest about 8 p.m.at his bungalow. He told S. I. Silva about it at the Police Station about10 p.m. There was no special reason to tell Hopman about it thatmorning. If this order was a very confidential one or if it was part of thealleged conspiracy, there were good reasons not to disclose it to otherofficers unnecessarily, even though he had the highest confidence in them.Mr. Mahmud has not given evidence in this case. Mr. Hopman stated hecame to the police station about midnight in civil cloth, s but Mr. Mahmudhad come there in uniform. The fact that Hopman had come in civilclothes suggest? that he did not expect to go out on any official duty. Wedo not agree with the defence suggestion that Hopman thought that theinvestigating officers would wish him to conceal the truth about theactual time when the 21st defendant informed him of the impendingarrest.
The 21st defendant has stated that he was in some doubt as to themeaning of the I. G. P’s message. He did not know if it meant that heshould carry out the arrest of Mr. Alwis on the message conveyed by Orr,which he believed to be an order from I. G. P., or if he should await afurther order from the I. G. P. to effect the arrest. We cannot understandhow this message could be considered by 21st defendant as the order tocarry out the arrests referred to in Orr’s message, when it was a verydefinite warning not to carry out unusual orders without the I. G. P’spersonal authority. We cannot accept his explanation that he has madea bona fide mistake as to the meaning of this message. According to themessage conveyed by Orr, the I. G. P. wanted the arrests made on receiptof an order from him, clearly meaning thereby an order to carry out thearrests. How the 21st defendant understood this warning not1 to carryout. unusual orders, in a diametrically opposite sense as an order to carryout the arrests, is beyond our comprehension. We are driven to theconclusion that this explanation is false. The 21st defendant admits thatan order to arrest a Member of Parliament is an unusual order.
21st defendant has taken a telephone call to Police Headquarters thatnight. The Galle Police Station telephone register (P59) shows sucha call booked at 1.10 a.m. on the 28th and connected at 1.15 a.m. 21stdefendant says that the call came through and he tried to contact theI. G. P., his D. I. G. and the Duty officer. He could not get at them andhe spoke to the officer in charge of the Information Room and gatheredthat all the senior police officers had gone to Temple Trees. He was notable to get clarification of the I. G. P’s message from any person inauthority. In his statement to Mr. Abeygunawardene he said he askedthe Officer-in-charge of the Information Room for the Duty Officer and hewas told that the S. P’s and the A. S. P’s were at- Temple Trees. Therewas no reference to his inquiring for the I. G. P. or his D. I. G. in thisstatement or that he was told that they were at “ Temple Trees ”.Hopman, however, supports 21st defendant with regard to this telephonecall, but S. I. Ratnasingham stated that 21st defendant told him onhis return from Colombo that he could not contact Police Headquarters.
The Crown, however, produced the telephone call ticket (Pi 84) fora telephone call from Galle Police Station to Police Headquarters,Colombo. This call has been booked at 1.08 a.m. and connected at1.13 a.m. on the 28th. The ticket shows that this call has been cancelled.The evidence of the postal officers is that a trunk call is cancelled at therequest of the caller before the call is connected or if the number calleddoes not answer. In this ticket, the time of booking is given as 0.08 a.m.and the time of connection as 0.13 a.m. and these times are altered to1.08 a.m. and 1.13 a.m. by ‘ 1 ’ being written quite openly over the * O *.These alterations have not been initialled as they should have been.
It has been suggested by counsel for 21st defendant that the C. I. D.Officers have forged these alterations on a telephone call ticket foranother call put through at 0.08 a.m. on the 28th and connected at
13 a.m. from the Galle Police Station to Police Headquarters. Theofficer who entered this ticket and put through this call has no independentrecollection of it. The telephone register (P59) does not show any suchcall.booked at 0.08 a.m. and connected at 0.13 a.m. or about that timeto Police Headquarters. We hold that there is no substance in the chargethat the telephone call ticket (P184) has been fabricated for the purposeof this case. It obviously refers to the call shown in P59 as bookedat 1.08 a.m. and connected at 1.13 a.m. on the 28th.
Inspector Ranawana was in charge of the Information Room, Colombo,on the 27th night. He stated that Mr. Tyrell Gunatilleke, A. S. P., C. I. D.came with some C. I. D. officers and took charge of the Information Roomand the telephone switch-board about 11 p.m. on the orders of the I. G. P.Mr. Gunatilleke ordered him to stop operating the switch-board and notto send out any messages. He was to consult the C. I. D. officers whowere posted to the Information Room or to ring up telephone No. 3942(Temple Trees) in all matters. Ranawana made an entry to this effectat 11 p.m. in the Routine Information Book (P.118).
"We hold that this telephone call from Salle was not accepted by theInformation Room and has been cancelled as a result. We disbelieve theevidence of the 21st defendant that he spoke to an officer in the Infor-mation Room and received information that the I. G. P. and other high-ranking Police officers had gone to Temple Trees, in spite of Hopman’eevidence in support of the 21st defendant.
If the 21st defendant was a conspirator and was carrying out the arrestof Mr. de Alwis on the orders of the 5th defendant, he would have beengreatly worried on receipt of the I. G. P’s warning radio message. Beforehe carried out the arrest, he would have tried to verify what was happeningin Colombo without disclosing his hand. This may well explain thistelephone call to Police Headquarters. When he was unable to contactHeadquarters, he may well have believed that the coup had taken place.He may thereafter have decided to effect the arrest.
21st defendant stated that on the 26th night Orr told him that Leftistsand trouble makers were to be arrested on the 27th night in connectionwith the impending general strike. Orr also told him that he may also
require some men and that he will telephone for them the next day fromthe Training School. About 7 a.m. on the 27th, Orr telephoned to himthat he would like to have Sub-Inspectors Ratnasingham and Dissanayake,
P.C. Amaradasa and another P. C, at the Training School at 6 p.m.that day. Orr made him understand that he had authority from theI. G. P. to get these men. 21st defendant said that such a request wasnot unusual. It seems improbable that Orr would require such a smallstrength from the Galle District to arrest Leftists and trouble makers,when the Training School had about a thousand constables includingthose in training and over 75 Inspectors and Sub-Inspectors, or that theI. G. P. would authorise Orr to obtain such a small force from Galle.
According to S. I. Ratnasingham, Gunesingha brought a message thatthe A. S. P. wanted to see him at Galle. He left immediately in his car inuniform to report to his A. S. P. Mr. Mahamud. As Mr. Mahamud wasnot there, he telephoned the S. P. (21st defendant), who asked him to go tothe Training School and contact Orr. He was not told the reason for thisorder. He knew Orr well. He went to Orr’s bungalow and reported tohim. S. I. Dissanayake and P. Cs Amaradasa and Perera were alreadythere.
. P. C. Amaradasa was Orr’s orderly at Galle for 5 years. He says thaton receipt of a message, he reported at the S. P.’s office about 10 a.m.21st4 defendant asked him if he was prepared to go on a very secret (orconfidential) mission. He agreed. 21st defendant wanted another trust-worthy P. C. and he brought P. C. Perera. 21st defendant asked Pererato come at noon, reporting off duty, ready to go on a mission withAmaradasa. 21st defendant told Amaradasa to go to the TrainingSchool and report to Orr at 6 p.m. and that he could go in S. I. Ratna-singham’s car, and to come to the office about 11 a.m. or 12 noon.
He came about noon and met 21st defendant, who told him that he hadreceived no reply from Udugama and asked him 1o take a bus warrantand leave at 2 p.m. to Kalutara. About 1.30 or 1.45 p.m. he came to thePolice Station with P. C. Perera, informed the Sergeant of the order to goto the Training School and obtained bus warrants. They were in uniformand left Galle about 2 p.m. They reported to Orr about 5.45 p.m. About
p.m. on the orders of Orr, they left for Colombo in Arumugam’s car.They were asked to go to the Depot and wait till Orr came there. Orrcame there abput 10 p.m. in Ratnasingham’s car. He came there againabout 11.30 p.m. and ordered them to return to the Training School.They did so. Nothing happened in Colombo so far as they wereconcerned.
According to Ratnasingham, on Orr’s orders he drove Orr and Dissa-nayake in his car to Colombo. They left Orr’s bungalow about 7.30 p.m.Orr put a shot gun in the boot of the car. S. I. Dissanayake carried hisrevolver but he was in civil clothes. Ratnasingham was not armed. AtOrr’s house Orr had asked Ratnasingham to remove his uniform. Hewent to his car and changed into a pair of slacks and a shirt. Before they
left Orr’s bungalow, Orr spoke to the 2 Constables and they got into Orr’ecar. (In fact, this was Animugam’s car.) Orr directed him towardsSlave Island and asked him to stop the car near the Empire Theatre. Orrwent towards the flats there. 5th defendant lives in one of the Flats nearthe Empire Theatre but Ratnasingham did not know this. In about 5minutes Orr returned and asked him to drive to the Depot. Orr got downand went towards his car which has halted at the Depot and spoke tosomeone in the car. Orr then came back and asked Ratnasingham todrive back to the same spot near the Empire Theatre. Orr again wenttowards the Flats and returned in about 5 minutes. They drove back to.the Depot and Orr again spoke to the Constables.
Thereafter they drove to a house off Thimbirigasyaya Road andstopped near two other cars. Orr got down and spoke to some peoplethere. Ratnasingham and Dissanayake were asked to follow another carand they went to some house. Orr joined them there later. Then theydrove back to the Depot and Orr spoke to the Constables. After that,they returned to Orr’s bungalow and the two Constables followed in theother car. After a meal at Orr’s the two Sub-Inspectors returned toGalle in their cars, with the two Constables. They reached Galle about
or 2 a.m. on the 28th and went to 21st defendant’s bungalow. Hewas not there. On their way to the Police Station, they met 21st defend-ant near the New Oriental Hotel. According to 21st defendant, thismeeting was about 2.30 a.m. 21st defendant asked the two Sub-Inspectors what happened. Ratnasingham told him that they went toColombo but nothing happened. 21st defendant told them that he hadarrested Mr. de Alwis and about the message from the I. G. P. Heasked them to go away. Dissanayake left in his car and Ratnasinghamdrove to his father-in-law’s house at Galle and slept there.
It would appear from Ratnasingham’s evidence of the trip to Colombowith Orr, that Orr had not gone there to carry out any legitimate ordergiven by the I.- G. P. for the arrest of Leftists and trouble makers. Ifhe had gone on lawful orders, he would have reported at Headquarters,the Depot, some Police Station, or to a senior Police Officer and awaitedorders. Though there is no definite evidence of Orr going to 5th defend-ant’s flat, Ratnasingham’s evidence tends to corroborate Arumugam’sevidence of the instructions given by 5th defendant on the 26th to himand Orr to come back at 8 p.m. the following day, ready to do the job.
Ratnasingham admitted that in his first statement made on 2ndFebruary he did not mention that he stopped the car near the EmpireTheatre and that Orr went towards the Flats there. He then stated thatthe car was stopped at Slave Island near the roundabout close to theRoman Catholic Church and the level crossing. He said that he did notspeak the truth on that occasion as he did not wish to get involved in thealleged coup. On that occasion, he pointed out a different spot to thePolice officers as the spot where he stopped the car. He made a secondstatement on 9th February and pointed out the spot near the EmpireTheatre where the car was stopped and the Flats towards which Orr went.
is evidence is in accordance with the second statement. We canaderstand this attitude of Ratnasiogham and other officers who eveninocently carried out the orders of their superior officers but later foundlat they had taken some part in the alleged coup. They would haveeen frightened to admit that they played some pa t in it, howeverinocently. A number of witnesses who gave evidence in this case fellito this category, though others were fully aware that they were parti-ipating in a criminal offence against the State. There is nothing to showhat Batnasingham and P. C. Amaradasa were accomplices to anyrime. We accept the evidence given by them in this case as true.
About an hour after Ratnasingham went to sleep, 21st defendant camehere. He sent Ratnasingham back to Onr to inform him of the arrest)f Mr. De Alwis and the receipt of the I. G. P.’s message and to ask himvhat 2l8t defendant should do about it. It is not necessary to go intoletails about this trip. Ratnasingham went in hi i car with 21st defend-ing s orderly and informed Orr at his bungalow. Orr asked him to tell21st defendant to justify the arrest, and discussed with Ratnasinghamlow this could be done. Ratnasingham told Orr that the arrest couldbe connected with the labour troubles at Nakiadeniya Estate. Mr. deAlwis had taken some part in the labour disputes in that estate.Ratnasingham returned to Galle about 6 a.m. and met 21st defendant inthe Fort. He told 21st defendant that Orr asked him to justify thearrest* He did not tell 21st defendant that the arrest may he justifiedwith reference to the labour troubles at Nakiadeniya Estate.
On the 28th morning 21st defendant told his two A. S. P’s that Orrwanted him to justify the arrest. They decided to do so on some falseground. They discuss d how best this could be done, and decided tofabricate a false ante-dated petition against Mr. de Alwis. 21st defendantwas to refer this petition for inquiry and report. A false ante-datedreport against Mr. de Alwis was to be made on it by a Police-officer.Thereafter 21st defendant should order the arrest of Mr. de Alwis. Thearrest was to be justified on that ground. This necessitated the fabri-cation of several entries in the Information Book. This could only bedone by removing certain pages from the Information Book of theGalle Police Station and the substitution of similar machine numberedpages from a new book. The original entries in the pages to be removedwere to be re-written by the respective officers who made them, withinterpolations about the petition, the orders and inquiries thereon.
In the fabricated entries, there was a deliberate omission of the entrymade by Inspector Fernando that Mr. de Alwis was arrested on a deten-tion order. There was also a suppression of the entry made of the visit ofthe two Constables to the Training School on the orders of the Superin-tendent of Police. An entirely false entry was made instead that theywent there to inquire into a theft of a type-writer. The latter entryappears to have been made because the 21st defendant was consciousthat he had 6ent them and the two sub-inspectors to Orr for an unlawfulpurpose.
21st defendant asked Hopman to get a petition prepared against Mr. deAlwis. Inspector Gunetilleke, 0. I. C. Galle was taken into their confi-dence and he was directed by Hopman to get a petition fabricated. Thiswas done with the assistance of a constable. 21st defendant made anorder on it, calling for a report. A false report was made on this petitionas directed by 21st defendant, confirming the allegations .in the petition.This petition strangely suggests that Mr. de Alwis was plotting tooverthrow the Government.
21st defendant ordered the arrest of Mr. de Alwis on the complaintmade in that petition. The necessary alterations were made in theInformation Book. A large number of officers including Constables andSergeants had to rewrite their entries in loose sheets of an InformationBook and the necessary false entries were made in them. The originalpages were' extracted from the Information Book and the fabricatedpages were substituted and the Information Book was re-bound by anexperienced book-binder.
All these facts are admitted by 21st defendant and it is not necessaryto refer to the various witnesses who gave evidence regarding the partsplayed by them in this fabrication. Most of them merely carried outthe orders emanating from 21st defendant through Hopman andInspector Gunatilleke. They knew that the orders were not lawfuland that they were participating in criminal acts of forgery and falsifi-cation of documents. They knew that 21st defendant had done some-thing wrong in ordering the arrest of Mr. de Alwis and were preparedto help him to get out of his difficulty. There is nothing to suggestthat in doing this they were accomplices in the alleged conspiracyagainst the State.
21st defendant has taken full responsibility for ordering his subor-dinates to fabricate these documents to justify the arrest of Mr. de Alwis.It may be mentioned that Mr. de Alwis was released on the 28th morningon the orders of 21st defendant, before any steps were taken to fabricatethe documents and to justify the arrest.
The Crown strongly relies on the conduct of 21st defendant, in orderinghis subordinates to fabricate these documents and in participatingin this fabrication to falsely justify the arrest of Mr. de Alwis, to provethat his evidence on this point is false. The Crown suggests that infact he carried out the arrest on orders received from 5th defendanteither directly or through Orr or both, in furtherance of a conspiracyto overthrow the Government.
The 21st defendant stated that he really became worried about hisaction in arresting a Member of Parliament only after Itatnasinghamreturned from Colombo with a message from Orr “ that no action shouldhe taken **. It was because of this message that he began to wonderwhether he had misunderstood the order from the Inspector-Generalof Police received by radio at 11.55 p.m. That was his reason forsending Ratnasingham back to Orr in the early hours of the 28th for
instructions or advice. Ratnasingham said he did not rememberbringing a message " no action should be taken ** from Orr to the 21stdefendant. If in fact Orr had given Ratnasingham a special messagefor the 21st defendant, it is unlikely that he has forgotten that. Infact he said that he wanted to meet the 21st defendant on his returnbecause the 21st defendant had instructed him earlier to come andmeet him. Rut for that instruction he would not have troubled tocontact the 21st defendant. We must reject the 21st defendant’sversion of this alleged message from Orr.
Before ordering the release of Alwis, the 21st defendant did not verifyfrom the Inspector-General of Police or Police Headquarters if theInspector-General had issued orders to arrest him. If the 21st defendantcarried out this arrest on an order which he believed came from theInspector-General of Police, one would have expected him to informthe Inspector-General or Police Headquarters that the arrest had beeneffected on the orders of the Inspector-General as conveyed by Orr,and ask for the detention order or what further action he was to take.The 21st defendant took no such action but released Mr. de Alwis onthe 28th morning. We do not understand why the 21st defendant. treated the message of Orr to justify the arrest, to mean that he wasto justify it on some false ground without reference to the order fromthfe Inspector-General of Police conveyed by Mr. Orr and withoutreference to the expected detention order. At least from a departmentalpoint of view, the arrest of Alwis on the orders of the Inspector-Generalof Police, in the expectation of a detention order which was to follow,was justifiable.
On his version, the 21st defendant had been guilty only of an errorof judgment in thinking that the radio message was confirmation ofthe order conveyed by Orr on the 26th. He had no reason whatsoeverto suppose that the Inspector-General of Police would disclaim respon-sibility for the order brought by Orr, nor did he say that he had anysuspicion at the time that Orr may have deceived him about that order.(Indeed, if he had thought so, he should not have sought Orr’s furtheradvice on his problem.) In this situation, an officer of high rank witha creditable and honourable record need have no grave fears of theconsequences of a bona fide mistake on his part in arresting a Memberof Parliament. We cannot believe that such an officer would in sucha situation resort to the dishonourable, dangerous and reprehensibledevices which the 21st defendant actually adopted.
The 21st defendant did not hesitate to undermine the morale of theentire Police Force at Galle and to put many Police officers in jeopardyof a criminal prosecution or dismissal from service, to protect himself.We can only reasonably explain his conduct on the footing that herealised that he had involved himself in a very serious crime by carryingout this arrest, when he learnt that the expected conspiracy for theoverthrow of the Government had not taken place. In this situation
lie was prepared to take any desperate action to save himself and toshow that the arrest of Mr. de Alwis was not in pursuance ofthis conspiracy.
We agree with Mr. Premaratne’s apt description of the Inspector-General of Police’s special radio message as a red light and not a greenone. If it is true that (in terms of the order conveyed by Orr) the21st defendant was awaiting receipt of a positive order from the Inspector-General of Police to arrest Alwis, then surely the radio message wasa warning against action. We cannot believe that an officer of the21st defendant’s experience and education could have thought thatthe radio message meant that he should go ahead with the arrest. Itwas absurd for him to claim that he regarded the order earlier conveyedby Orr as a “ personal ” order of the Inspector-General of Police.
On all the evidence concerning the arrest and the subsequent conductof the 21st defendant, we hold that he carried out the arrest oninstructions given by the 5th defendant on the 25th January in personand on the 26th through Orr. We hold further that he would not havecarried out those instructions of the 5th defendant except with theconfident expectation that he would not be called upon to explain thearrest. That expectation could only have arisen from informationgiven him by the 5th defendant. We have no doubt that the contentof the information was the same as that conveyed to Brohier by the5th defendant, namely, that there was a plan to overthrow the Governmentin which the 4th defendant was a participant.
Although the 5th defendant had been a senior Deputy Inspector-General of Police, his term of office ended abruptly in 1960 and he tookunsuccessful steps to challenge the order which the Public ServiceCommission then made for his retirement. In these circumstances,the orders for arrest which we hold were received from him by the 21stdefendant could not possibly have been regarded by the latter as officialorders or as having official approval. We hold therefore.that in carryingout these orders, and particularly in arresting the Member of Parliamentfor Baddegama, the 21st defendant acted with full knowledge thatthese orders were a part of a conspiracy to overthrow the Government.
We hold on the evidence that the 5th defendant contacted the 21stdefendant on the 25th January, in furtherance of the plan made bythe 3rd, 4th and 5th defendants to overthrow the Government byunlawful means. The 21st defendant carried out the arrest of Mr. Nealede Alwis on the orders of the 5th defendant in furtherance of this plan.This order was conveyed to him by Orr as the emissary of the 5thdefendant, on the night of the 26th January.
These proved facts are inconsistent with his innocence and driveus to the only reasonable conclusion that the 21st defendant was a guiltyparticipant in the conspiracy to overthrow the Government, to whichthe 4th and 5th defendants were parties.
We shall now state our conclusions upon the evidence which affect;he 5th defendant. In doing so, we keep in mind, but do not thinkt necessary to repeat here, many facts and findings affecting him whichhave already been stated in earlier parts of this judgment.
During our discussion of the evidence of Brohier and Arumugamwe referred to the fact that while the 5th defendant was yet in the PoliceService he and the 4th defendant had been enemies. This enmitycontinued until about December 1961, when the 5th defendant tooksteps to heal the breach. Prom the 4th defendant’s evidence it appearedthat from about this time relations between the two were much improved.
We have held that on the morning of 25th January, the 4th defendant-put through an official priority call-to the bungalow of the 23rd defendant,the brother-in-law of the 5th defendant, and that in the absence ofary other explanation this call must have had reference to the 5thdefendant’s subsequent meeting on that day with Jackson and to hisconversation with Police officers in Galle and Kalutara. No doubt the5th defendant could himself have phoned his brother-in-law but if hewished to do so he would not have had priority for his call. At thelowest the 4th defendant’s false denial that he made this call showedthat he was anxious to conceal from the Court the purpose for whichhe mad$ it.
i*
In considering the evidence against the 21st defendant, we haveheld that the 5th defendant had sent Orr to the 21st defendant on thenight of the 26th January asking the latter to arrest the Leftist Memberof Parliament for Baddegama and a former Sri Lanka Freedom PartySenator on the 27th.
We have held already that the 2nd, 3rd and 4th defendants prepareda plan, intended to be carried.cvn.+h« 27th, to overthrow the Govern-ment, and that their plan involved the arrest of Leftists. We have heldalso that the meeting at Frances Road on the night of the 27th tookplace in connection with that plan, and that those three defendantsand the 5th defendant were present there. We accept StanleySenanayake’s evidence that the 5th defendant there suggested thatSenanayake should go to the D.I.G., C.I.D. “and deny the whole thing
The matters which we mention in the preceding paragraphs affordgeneral independent corroboration of the substantive purport of Brohier’sevidence that the 5th defendant informed him on 25th January of a.plan to overthrow the Government in which the 4th defendant wasparticipating. For these matters tend to show that the 5th defendant-was himself a participant in such a plan. In the face of the evidenceof the preparations made by the 3rd and 4th defendants for action tobe taken on the night of the 27th January, it would be absurd for us-to suppose that the order which the 5th defendant gave to the 21stdefendant was distinct from and unconnected with the conspiracy in.
which the 3rd and 4th defendants were engaged- Such a suppositioncannot be based on any available evidence, and it is controvertedby the association of the 5th defendant with the 2nd, 3rd and 4thdefendants at the Frances Road meeting.
We have a.ccepted the evidence of Brohier that the 5th defendantrequested the services of Arumugam and Orr to arrest the Inspector-General and the D.I.G., C.I.D., and we hold that Arumugam spokethe truth about that request. Hence we can rely on his evidence thathe visited the 5th defendant with Orr on the 26th in connection withthat request. We have also accepted Ratnasingham’s evidence thathe brought Orr and Inspector Dissanayake to Colombo on the 27thevening, both of them being armed, and that Orr went to the 5thdefendant’s flat near the Empire Theatre.
We accept Brohier’s evidence that on the 26th afternoon, the 4thdefendant asked him ** Did that mad beggar come ? ”. This questionshowed that the 4th defendant was aware of the 5th defendant’s visitto the South on the 25th.
We are satisfied that Brohier’s account of the details of a plan to over-throw the Government disclosed to him by the 5th defendant was true.The 5th defendant there admitted to Brohier that the plan involvedhimself, the 4th defendant and Army officers among others.
Having regard to the matters just discussed concerning the case againstthe 5th defendant, it is not really necessary for us to take into accountcertain other items of evidence against him which were deposed to byArumugam. We have elsewhere accepted Arumugam*s evidence ofmeetings with the 5th defendant on 26th January and the instructionswhich the 5th defendant then gave to Arumugam and Orr.
We hold that the 5th defendant joined in the conspiracy in whichthe 3rd, 4th and 2nd defendants were engaged.
There were three heads of evidence which the prosecution relied uponto establish that the 18th defendant, Jebanason, who was the Superinten-dent of Police (Crimes), Colombo, had been a participant in the allegedconspiracy.
Apparently the Police hold what have been described as " SuspectsNights ” or “ Ambush Patrols ”, with the object of rounding up andquestioning people who are abroad in the City of Colombo at unusualhours. An order for such an operation between the hours of 2 a.m. and5 a.m. on 28th January 1962 in the Wellawatte, Bambalapitiya andNarahenpita areas was issued by the office of the Superintendent of"Police, Colombo under the signature of the 18th defendant. On the 25thJanuary 1962 however, an order cancelling the previous order for the“ Ambush Patrol ** was issued under the signature of Robert Perera whowas the Assistant Superintendent of Police (Crimes). According to StanleySenanayake (who was the 18th defendant’s immediate superior) he
imself knew nothing either of the proposed Ambush Patrol or of itsancellation, and the prosecution established prima facie that the 18thefendant did order the cancellation. But in the absence of any evidencef any prior contact between the 18th defendant and the 4th defendantre did not feel justified in inferring, either that the 4th defendantnew of the proposed Patrol and therefore directed its cancellation or;lse that the 18th defendant cancelled the Patrol for any reason connectedvith the alleged unlawful plans of the 4th defendant. We saw no reasono attach any sinister significance to this cancellation, when there wasavailable the obvious explanation that the Police were already burdenederith unusually heavy duties because of existing and anticipated strikes.
The second head of evidence relates to two alleged incidents whichtook place in the house of the 4th defendant around 8 p.m. on the nightof the 27th January. The 18th defendant was present in the house andhad a conversation there with Vandendriesen, Assistant Superintendentof Police. Vandendriesen’s evidence was that the 4th defendant hadearlier assigned to him the task of arresting Mr. Felix Dias Bandaranaike.According to him when he met the 18th defendant on the night of the27th, the latter asked him what was up and he replied that he had toarrest- Mr. Bandaranaike. Even if this evidence be true, the tenor of thealleged conversation indicates ignorance, rather than awareness, on thepart4of -the 18th defendant of the action allegedly contemplated by the4th defendant. If the 18th defendant had been in fact aware of wbat wasafoot there was no reason for him to make the inquiry " what’s up ”from Vandendriesen.
The other incident was spoken to by Assistant Superintendent ofPolice Johnpulle. According to him, he informed the 4th defendanton the night of the 27th that the Navy Commander was then at TempleTrees. The 18th defendant who was present at the time is said to havethen remarked that that might be a coincidence because his brother-in-lawwho was in the Navy had told him that Navy men were engaged in thePort. Apparently the 18th defendant has no brother-in-law in the Navybut does have a brother-in-law in the Air Force. The prosecutionurged us to regard this remark of the 18th defendant as evidence of hisknowledge of the alleged unlawful plans. The remark it was arguedwas a false statement made by the 18th defendant with a view to allayingany fear which the 4th defendant might have entertained in consequenceof the information about the Navy Commander’s presence at TempleTrees. We were unable to construe the remark in this manner for ifindeed the 18th defendant had knowledge of the 4th defendant’s planand acquiesced in it, it was absurd for him to mislead the 4th defendantby a completely false statement. Even if we therefore assume thatJohnpulle’s evidence is true, the most that can be said is that the 18thdefendant volunteered some incorrect information that the Navy menhad been called into the Port. It would have been unreasonable for usto regard such a chance remark as an indication of the 18th defendant’sagreement to join in the alleged conspiracy.
Thirdly, the 38th defendant admitted in a statement made on 19thFebruary 1962 that on the night of the 27th the 4th defendant informedhim that he may have to watch the house of Mr. Attygalle, S. P., C. I. D.We could not agree with the argument that he should have known that theorder thus given him was illegal. It was undoubtedly an unusual order,but it was given by the 4th defendant, who was the senior D. I. G.,andwho had a high reputation in the Police Service for his integrity. Theonly evidence available as to what was said on this occasion by the 4thdefendant was the admission itself, and that admission did not includeany details which should in our opinion have led the 18th defendant tosuspect the legality of the tentative order given to him. If the 18thdefendant who was a Superintendent of Police should have regarded withsuspicion an order to watch another Superintendent’s house, given by"a D. I. G., how can the prosecution explain Sub-Inspector Mahat’sunquestioning compliance with an order to watch a D. I. G’s house, whichwas given by Inspector Kandiah ?
We have now to refer to some evidence given by Major Rajapakseabout a dinner which was attended by 1st defendant at the ArmouredCorps Mess on 11th January. The date is not now in dispute, thoughon 9th February it was thought by the Army officers that it took placeon the 10th January. They corrected the date on the 13th February to11th January because that was the day on which a football tournamentwhich was being held at Welisara ended.
1st defendant admitted that he telephoned Major Rajapakse to saythat he would visit the Mess that evening. Rajapakse said that when1st defendant told him he was coming to the Mess, he asked Capt. C. H.Fernando to arrange dinner for him, and C. H. Fernando then said that14th defendant had already informed him about 1st defendant’s proposedvisit.
C. H. Fernando, who was the Adjutant of that Regiment, said that14th defendant telephoned him that morning at about 1! a.m.to say thathe was goirg to Welisara ; he also said that 1 t defendant was coming todinner, and asked him to make arrangements. Fernando told the cookto have pork chops instead of fish pie, and he believed he told the MessCorporal that an extra person was coming. When Rajapakse telephonedhim that afternoon to tell him about 1st defendant coming to dinner, hetold him of the arrangements already made.
Rajapakse and Fernando have denied that they plotted to palm off1st defendant as 14th defendant’s guest so as to couple 1st defendantwith 14th defendant as co-conspirators. They have also denied thatthe Mess books were doctored for this purpose. We do not accept thedefence suggestions on these points. 1st defendant has said that hedid not inform 14th defendant about his proposed visit to the Mess thatnight, but we believe C. H. Fernando’s evidence regarding the telephoneconversation of that morning.
Rajapakse said that before dinner 1st defendant talked of the country-going tothe dogs, and of the strikes ; that the only remedy was a militarydictatorship; that certain police officers were in sympathy with such amove (though he did not mention this detail before he gave evidence);
and that 1st defendant added “ The remedy is in your hands ”.
f-
C. H. Fernando said that the 1st defendant talked of strikes and ofthe economic situation taking a serious turn and added “ You are thepeople who can save this 1st defendant also asked what they thoughtof a military dictatorship to run the country, and the respective meritsof General Wijekoon and 3rd defendant were canvassed by 1st defendant;Capt. Guneratne, who was getting angry over 1st defendant’sconversation, said that the Army had done most of the civilian dutiesand they may he able to do even this, and remarked to Fernando : “ Heis a joker ”. Mr. Ponnambalam’s cross-examination of C. H. Fernandohas this passage at page 6925 :—
Q.I put it to you there wasn’t one word spoken about militarydictatorship ; the expression ‘ military dictatorship * was neverused that day in the whole of that conversation to which youclaim to have listened ?
A. There was.
1 Q. You are definite ?
A. As far as my recollection goes today, there was.
Q. You will admit also that your recollection would have been muchbetter, such as it was, at the time you made your statement ?
• A. Definitely.
Q. You can take it from me you have made no reference to theexpression “-military dictatorship ” in the whole of that statementyou made on the 9th February ?
Later Crown Counsel put a passage from the witness’s statement of9th February 1962 to the witness and got this answer: * I said “ Hecanvassed the opinion of those present and wanted to know who couldlead the Army in the event of an attempt to overthrow the Government.He referred to the General and when he got no reply, he asked as towhat they thought of Col. F. C. de Saram.” ’
According to 1st defendant, Capt. Guneratne said " If we can run theFort we can run the country”, to which he replied “Do you think thatrunning a Government is as easy as running an armoured car alongGalle Hoad ? ” 1st defendant admitted that he talked of strikes. Heconceded that he may have said that the country was in a parlous state,And referred to the economic situation and cost of living. He denied"that he referred to a military dictatorship or said “ The remedy is inyour hands ” or You are the people who can save the country ”.
After the dinner, admittedly 1st defendant drove Rajapakse home.Rajapakse said that there was more talk by 1st defendant in the samestrain when the two of them were alone : but according to 1st defendantthe conversation was confined to Rajapakse bewailing his own position±1 the Army, and complaining against Attygalle and Udugama.
Rajapakse said he spoke to C. H. Fernando about Camp securityon 12th January, and C. H. Fernando said that Rajapakse told him tobe very particular about Camp Guards. On that same day Rajapakse saidhe spoke to other officers including Capt. M. D. Fernando, asking themto listen and get information if anybody spoke of a military Government.
M.1). Fernando said Rajapakse told him on 12th January that 1stdefendant had been to the Mess the previous night for dinner and discussedabout having a military Government, and that he (M. D. Fernando)should get' information; also that Rajapakse told him he would be withthe other side and get as much information as possible. Lieut-Col.Attygalle has said that Rajapakse told him at about 9 a.m. on 12thJanuary that 1st defendant had dined at the Mess the previous night,and discussed the economic position and suggested some form of militaryGovernment; when Attygalle asked him why he listened, Rajapaksetold him that he was trying to find out what was going on. Attygalle saidthat he tried to telephone Udugama to inform him of this, but couldnot contact him.
The following passage in Attygalle’s statement of 2nd Febniary wasput to Attygalle by Mr. Ponnambalam : “ About the 11th or 12th ofJanuary Major Rajapakse spoke to me about the suspicious movementsof the usual group of Catholic officers whom we were aware of andparticularly regarding a surprising visit of Mr. Douglas Liyanage ofthe C. C. S. whom he and some of the officers met when he was GovernmentAgent, Mannar. He had spoken to some of the officers at the Mess onthe economic position and the financial position of the country. Jimmediately telephoned Colonel Udugama who was at Jaffna but Icould not contact him.” The following passage in the same statement,which refers to a discussion between Attygalle and Udugama on the13th, as to what action should be taken by them, was also put toAttygalle by Mr. Ponnambalam : “ I asked him (i.e., Udugama) to informthe Government about this and he said he would, although he felt thatthis would be considered as the same story which was being repeatedfor the last few years. I also informed him that the General had spokento the Commanding officers about the dangers of a coup d’etat.”
While it is true that the expression “ Military Government ” was notused by Attygalle, the context and the action he spoke to having takenshow the serious view taken by him. The Army Commander had spokenthat morning to Unit Commanders of rumours about Army Officersplanning a coup, and had said that he did not want officers to indulgein such talk. So Attygalle, after speaking to Udugama on 13th January,decided not to tell the Army Commander of the same sort of rumour.
But Attygalle said that he asked Rajapakse to bring it to his notice,if he got any further information of this kind. Mr. Ponnambalamattacked Attygalle in the course of his address. He questioned hisveracity and said that Attygalle and Udugama had used Rajapaksefor their own purposes in order to procure false evidence against certaindefendants. It is difficult to reconcile this argument with Attygalle’sfailure to implicate 1st defendant more convincingly when he made thisstatement on 2nd February.
Attygalle also said that Rajapakse told him on 12th January about8th and 9th defendants and 14th defendant among others meetingin the Mess, and that he suspected that there was something brewing.Rajapakse has spoken to this information that he gave Attygalle. Buton other details of the information which Rajapakse said he gaveAttygalle, the latter has not supported him, e.g., the alleged “ build-up ”of 3rd defendant as a leader. Other contradictions in their evidencehave been pointed out to us, and we have not failed to consider them.
We take the view, after considering all the evidence, that 1stdefendant sounded the officers of the Armoured Corps at the -dinnerregarding an overthrow of the Government, and suggested that theArmy should participate. Even by that time 8th, 9th and 14th defendantswere suspected by Rajapakse, though his reason for suspecting them,viz.', that they met sometimes, is not very convincing. Whether hedid mention his suspicions to Attygalle before the 12th or not is a matteron which Rajapakse and Attygalle are not agreed.
1st defendant in his evidence denied the alleged subversive conver-sation at the Armoured Corps Mess on the night of January 11th. Headmitted that he knew Major Rajapakse during the time they wereboth at Mannar in 1960, and that he once dined at Rajapakse’s Messin Colombo when he had been invited to do so by Rajapakse prior toJanuary 1962. Thereafter he had an open invitation from Rajapakseto visit the Mess.
1st defendant's explanation of Rajapakse’s evidence against himis that, although Rajapakse was not a villain on his own, he was readyto save himself, and made a statement at Temple Trees on January29th after he had been coached by Mr. N. Q. Dias. 1st defendant attri-buted 1ST. Q. Dias’s hostility to him to disagreements they had aboutthe attitude to be adopted towards the Satyagraha campaign in Batti-caloa, and previously in Mannar when the methods of dealing withillegal immigrants were being considered. It is quite possible that1st defendant, who seems to have been a Civil Servant of independentoutlook, did not accept N. Q. Dias’s orders tamely, and even went tothe extent of disobeying them. But it is not at all clear to us whyRajapakse, whose relations with 1st defendant were cordial throughout,should'have sided with N. Q. Dias and given deliberately false evidenceagainst 1st defendant.
Capt. C. H. Fernando’s evidence against 1st defendant is explainedby the latter as being a lie uttered out of loyally to Rajapakse, although1st defendant’s Impression of C. H. Fernando, which he formed whenhe met Fernando in Mannar, was that he was a decent man.
We have borne these explanations of 1st defendant in mind whenassessing the evidence regarding the dinner of January 11th, but wedo not accept the reasons which he has given. We do not believe thatRajapakse and C. H. Fernando have falsely implicated 1st defendantby putting into his mouth words which he never uttered. C. H. Fernandocertainly corroborates Rajapakse on this part of the case.
Another point made by the defence in regard to the dinner of 11thJanuary was that the Mess books had been tampered with, and falseentries made, in an attempt to pass off 1st defendant as 14th defendant’sguest when he was really Rajapakse’s guest. 14th defendant was thePresident of the Mess Committee at this time, and 1st defendant’s dinnerhas been debited to his account and not to Rajapakse’s account.
The Daily Meals Attendance Register (ID4) is the first book in whichan entry is made in respect of a meal, and the entry shows which officeris to be charged, and to what extent, in respect of any particular meal.It appears that in ID4 against the date 11th January and against 14thdefendant’s name, * 1 ’ has been written in respect of lunch and thencut off, and * 1 -f-1 ’ entered in respect of dinner against his name. Theaddition of the second dinner is attacked as a forgery. We do notaccept this suggestion. It is common ground that 14th defendantdid not lunch in the Mess on that day, and if * 1 ’ was wrongly enteredin respect of lunch there was nothing irregular in cutting it off. 14thdefendant and Rajapakse both dined in the Mess that night. Thereis only * 1 ’ entered against Rajapakse’s name in respect of dinner.If the true position was that 1st defendant was Rajapakse’s guest atdinner, we would have expected * 1 + 1 * to have been entered againstRajapakse’s name—with a possible alteration made later once the allegedconspiracy against 14th defendant had started. This is the strongestpiece of evidence against the theory put forward by the defence that theofficers of the Armoured Corps including Rajapakse, M. D. Fernando and C.H. Fernando conspired to make false entries in order to show that 1stdefendant was 14th defendant’s guest. The Officers’ Mess Meals Atten-dance Register, also called the Messing Book (ID9) which was anotherbook produced by the defence is a summary taken from ID4, and is notof such importance therefore as ID4. Several other books were alsoproduced through the prosecution witnesses, and various shortcomingsin the accounts and the condition of the books were elicited from them.
It is to be noted that the prosecution did not rely on these documents ;nor did it make any effort, even on the oral evidence, to show that1st defendant was 14th defendant’s or anybody else’s guest at this dinner.
C. H. Fernando said that when Rajapakse told him that 1st defendantwas coming to dinner, he informed Rajapakse that 14th defendant
had already told him about that. No stress was laid on this pointsThe defence, however, through Mr. Kannangara who spent many hours-labouring the point and making a searching investigation of the manydocuments produced by him, endeavoured to establish that the prose-cution case was that 1st defendant was 14th defendant's guest, andthen proceeded to demolish that non-erdstent theory. We do notthink this aspect of the case requires any further analysis by us.
We also cannot accept 1st defendant’s denial of the allegations madeagainst him by Arumugam in respect of the conversations which wehave held took place between them.
We have accepted the evidence of Arumugam that at the time of theSwimming Competition, on the 7th or 8th of December, 1961, he metthe 1st defendant in Colombo and that on that occasion the 1stdefendant inquired from Arumugam about the relative popularity of the4th and 5th defendants in the Police force. The further evidence ofArumugam that the 1st defendant also said that he was trying to con-tact Police Officers with a view to an overthrow of the Governmentis not supported by the statement which Arumugam made on 2nd Febru-ary, 1962. But his evidence that he came to know from this conver-sation that the 1st defendant was involved in such a plot is supported'by a similar remark in the statement. This fact was elicited in cross-examination. .Hence we can accept the evidence, that because of theconversation on the 7th or 8th of December, Arumugam realised the 1stdefendant’s involvement in such a plot.
Arumugam stated that early in January the 1st defendant made aremark that he was in touch with the 4th defendant in connection withsome plans. This evidence receives some support from the fact thatthe 1st defendant did visit the 4th defendant shortly before the tokenstrike of January 5th. Of course the evidence of the 1st, 4th and 19thdefendants has been that this visit was made for an official purpose.Arumugam’s evidence about this remark receives confirmation fromthe evidence concerning a visit which the 1st defendant made to the4th defendant’s office on 27th January, which we shall presently discuss.Because of this confirmation, we accept Arumugam’s evidence aboutthe remark.
The telephone call which Arumugam made to the 1st defendant earlyin the morning of 26th January and the visit which Arumugam andOrr made to the 1st defendant’s house that afternoon were admittedby the 1st defendant. We have earlier recounted Arumugam’s evi-dence of the conversation which took place on that visit. If the evidenceis true it shows quite clearly that the 1st defendant knew of theconspiracy and was himself a participant.
We must take into account in this connection our finding that onthe 25tlrnight the 5th defendant had disclosed to Brohier, Arumugamand Orr a plan to overthrow the Government, in which the 5th defendant
wanted the assistance of Arumugam and On* to arrest the Inspector-General and the D.I.G., C.I.D. We have held that Arumugam midOrr went to Colombo on the 26th at the request of the 5th defendant.When therefore Arumugam’s evidence is that his telephone call andvisit to the 1st defendant was the consequence of the 5th defendant'sdisclosures the previous night there is a ring of probability in this evidence.We have stated earlier that there was no reason at all for Arumugam toimplicate the 1st defendant falsely with such very grave accusations.Although Arumugam is not corroborated with regard to this conversa-tion on the 26th and despite the 1st defendant's denial we hold thatArumugam’s account of the conversation is true.
The 1st defendant had taken leave from his duly for the afternoonof the 26th and for the 27th as well. He visited the 4th defendant inhis office on the morning of the 27th, and we have shown elsewhere thatthis was a pre-arranged visit, for the 4th defendant had given ordersto the Information Room for the 1st defendant to be shown up on arri-val. In the light of this fact, we mnst hold that the 4th defendant gavefalse evidence when he said that he could not remember the visit, andthat the 1st defendant gave false evidence when he said that the visitwas not pre-arranged. We have elsewhere stated that we reject tlie 1stdefendant’s evidence as to the purpose of this visit. We hold that the1st defendant having taken leave for the 27th January met the 4thdefendant by appointment in his office and at a time when the 4th de-fendant was clearly engaged in giving orders in furtherance of a con-spiracy to overthrow the Government. The fact of this meeting takentogether with the false evidence on the point given, at the trial by the1st and 4th defendants and the concealment of this meeting by the 1stdefendant when he made his statement at Temple Trees (Vide P167)makes it impossible to resist the inference that the meeting was in con-nection with the conspiracy in which the 4th defendant was engaged.We hold that the 1st ucfexxcL»ji't *v<*o himself a member of the conspiracy. –
The prosecution led evidence to prove that 6th defendant was presentat the meetings at Elibank Road and Frances Road on the 27th night.We accept Major Rajapakse’s evidence regarding 6th defendant’s pre-sence, in preference to that of Abeysinghe, Alwis and 3rd defendant,all of whom said he was not there. 6th defendant’s presence there isin itself of little weight, but about 1£ hours later he was on the frontlawn of 14, Frances Road along with 2nd, 3rd and 5th defendants.Stanley Senanayake saw them there when 4th defendant took him thereby car at about 8.30 p.m. Here again Stanley Senanayake has beencontradicted by 3rd and 4th defendants, who said that the three of themmet at Homelea, and denied the meeting at 14, Frances Road.
Senanayake’s evidence is that when 4th defendant took him up tothe lawn where the others were gathered, 5th defendant suggested tohim to go to the D.I.G., C.I.D., and deny the whole thing and 2nddefendant said, “ Yes, that is a good thing. ” 6th defendant then said** I must get off from here, I have not yet briefed my men.” Senanayake
said that h© remarked, ** How can I go to the D.I.G., C.I.D., and denythis ? ” A discussion followed among the others ; and they agreed to meetthere again at 10.30 p.m. 5th defendant then went into the house andbrought an envelope which he gave 4th defendant. 4th defendantand Senanayake returned to 4th defendant’s house.
Senanayake estimated his stay at Frances Road at between 5 to 15minutes. It was elicited from him in cross-examination that thoughhe had mentioned the presence of 5th and 6th defendants and the othersat 14, Frances Road when he made his statement at Temple Trees on the28th, he did not refer to the 5th defendant bringing an envelope eitheron that occasion or on February 16th. He also did not refer to 6th defend-ant’s remark about briefing his men in either of these statements. Weappreciate the point made by the defence, arising out of the omission tomention these matters promptly, and we have considered the submissionthat there was no such meeting at Frances Road. We hold that Senana-yake’s evidence is true, and we accept it in preference to the denials of 3rd.and 4th defendants. We have dealt elsewhere with their evidence of analleged meeting with Senanayake at Homelea and rejected it. It may bethat 3rd and 4th defendants denied that Frances Road meeting becausethey wished to avoid implicating any of their fellow conspirators. Anadmission that they met Senanayake there would hardly have soundedconvincing if they said that nobody else was there, since it was the house» of Carl de«Mel, a brother of 2nd and 6th defendants.
Mr. Ponnambalam argued that “ the names of 5th and 6th defendantswere put into the mouth of Senanayake on the 28th morning ”, and that2nd defendant was also brought in by him because a telephone call wasmade, from Homelea to 2nd defendant on the 27th night. Thesesuggestions strike us as far-fetched. Senanayake was in the witness-standfor 11 days, and 8 of these days were spent in facing cross-examinationof a high order.
The conversation which Senanayake spoke to having heard on thatlawn is strong evidence against all those who were present there. Whentaken with other proved circumstances it establishes their membershipof the conspiracy in no uncertain terms.
Inspector Aluwihare and A. S. P. Simon Perera have spoken to seeing6th defendant at Homelea at about 7 p.m. on the 28th when they took3rd defendant there on the way from Temple Trees to Welikade Prison.On the other hand, Dr. Sproule has said—and he is supported by ProctorGunasekera—that 6th defendant did not arrive at Homelea till shortlyafter 3rd defendant had been taken away by the Police officers. It is notnecessary for us to decide where the truth lies on this point. Thesignificant fact, which the Crown has succeeded in establishing, is that6th defendant learnt that very night about the 3rd defendant havingbeen taken into detention in connection with the alleged conspiracy.When he learnt of this, 6th defendant seems to have become alarmed on hisown account. He would have become aware very soon afterwards that
he was wanted by the authorities for questioning with regard to this sameconspiracy. In spite of the Police having searched for him from the 29thmorning at his own house, his parents’ and his brothers’ houses, and thehouses of other relatives and elsewhere, he could not be found. He didnot show himself again to the authorities until he surrendered to Courton July 30, 1962. It is obvious that he went into hiding.
It was strange conduct for a man who had held the position he had onceheld, particularly because there was pending at that time a NavalCommission of Inquiry into his conduct and the conduct of other officersof the Ceylon Navy. We have had no explanation from him as to why hebehaved in that way at that time.
Abeysinghe has spoken to an attempt made by Major Perera, with theassistance of Lieut.-Col. Udugama and Lieut.-Col. Attygalle, to get himto fall into line with Rajapakse and implicate 6th defendant as one of thosewhom he saw at the Elibank Hoad meeting. He has also referred toa visit he was asked to pay to the C. I. D. office by Major Abeysekeraapparently with the same object in view. Major Ebert has tried tosupport Abeysinghe’s version as against Major Perera’s and Lieut.-Col.Attygalle’s denials of such a thing having happened. We accept theevidence of Perera and Attygalle that they took no steps to procure falseevidence from Abeysinghe. Ebert claimed that he had reported whathe no doubt considered the questionable conduct of Perera and Attygalleto Col. Heyn. In the absence of evidence from Col. Heyn, evidence whichcould well have been led to prove that Ebert had so acted, we do not fecithat we can act on Ebert’s evidence.
Before we end our summing-up of the case against 6th defendant weought to say that we attach no significance to the fact that former Lieut.Jacob prepared the list of naval ships, their complements, programmes andother details (P65) about December 1961 or January 1962 for 6th*. «r . The list also contained two addre^^s.and.telephone numbers
of Commodore Kadirgamar. Such particulars were available to anybodyfrom a blackboard at Naval Headquarters. They may possibly havebeen obtained by 6th defendant who was concerned about proposalsto reduce the strength of the Navy which appeared in the Times of Ceylonof 17th January (6D1).
These circumstances which we have held to have been proved againstthe 6th defendant satisfy us that he was also a member of thisconspiracy on January 27th.
In our Order of 25th February 1963 (65 N. L. R. 73) we stated that“ we share the intense and almost universal aversion to ex post facto lawsin the strict sense ”. The third charge, that of conspiring to overthrowthe Government, was framed in terms of the retroactive amendment ofSection 115 of the Penal Code made by the Criminal Law (SpecialProvisions) Act, No. 1 of 1962. This circumstance has not in fact beenseriously disadvantageous to the defendants, because we hold in any event
that those defendants whom we convict are guilty on the other charges,'Which do not depend on the amendment. Probably^ also, the provedconspiracy would have been punishable under other Sections of -theCode.
But we must draw attention to the fact that the Act of 1962 radicallyaltered ex post facto the punishment to which the defendants are renderedliable. The Act removed the discretion of the Court as to the period ofthe sentence to be imposed, and compels the Court to impose a term oi10 years' imprisonment, although we would have wished to differentiatein the matter of sentence between those who organised the conspiracyand those who were induced to join it. It also imposes a compulsoryforfeiture of property. These amendments were not merely retroactive :they were also ad hoc; applicable only to the conspiracy which was thesubject of the charges we have tried. We are unable to understand thisdiscrimination. To the Courts, which must be free of political bias,treasonable offences are equally heinous, whatever be the complexion ofthe Government in power or whoever be.the offenders.
We convict the 1st, 2nd, 3rd, 4th, 6th, 6th, 13th, 16th, 19th, 20th and21st defendants on all the counts of the Information,’and we impose oneach^of them on each count a sentence of ten years’ rigorous imprisonment',which is £he minimum term prescribed by law. The sentences on thethree counts will run concurrently. We also order that each of themshall forfeit all his property as required by law.
We cannot end this judgment without acknowledging our debt toCounsel who appeared on both sides. In an unusually difficult andprolonged trial, the Law Officers conducted the prosecution with thefairness and thoroughness which the Court always expects: and Counselfor the defendants displayed remarkable industry and devotion to thecause of their clients.
(Sgd.) M. C. Sansoni,
President.
(Sgd.) H. N. G. Fernando,
Senior Puisne Justice.
(Sgd.) L. B. de Selva,
Puisne Justice.
1st, 2nd, 3rd, 4th, 5th, 6th, 13th, 15th, 19th, 20th and 21st defendantsconvicted on all the counts of the Information.