THE QUEEN v. MAPITIGAMA BUDDHARAKKITA THERA and 2 others

089-NLR-NLR-V-63-THE-QUEEN-v.-MAPITIGAMA-BUDDHARAKKITA-THERA-and-2-others.pdf


The Queen v. Mapitigama SuddharakkitaTherCt and 2 others
433
[In tits Coub-t of Criminae* Apfhal]
Present:Basnayake, C. J. (President), Sansoni, J.,H. N. G. Fernando, J., Sinnetamby, J., and de Silva, J.THE QUEEN v. MAPITIGAMA BUDDHARAKKTTATHERA and 2 others
Appeals Nos. 100, 101 and 102 of 1961, with Applications
Nos. 106, 107 and 108
S. C. 8—M. C. Colombo, 23838]A
Charges of murder and conspiracy to murder—Evidence—Direct evidence of eye-witnessesregarding murder—Conviction based thereon despite introduction of inadmissibleconfession—Legality—Weight of unsworn statement from dock—Political motivefor conspiracy—Admissibility of evidence reflecting on character of accused—Statements made by prosecuting Counsel in opening address—Effect of failure totender evidence in support thereof—Corroboration of accomplice's evidence—Summing-up—Misdirection—Leadingquestions put towitnesses—
Ineffectiveness of irregularities when they do not cause miscarriage of Justice—Evidence of an accused inculpating co-accused—Proper direction to be given tojury—Witnesses— Rule that Counsel should not interview a witness once he is inthe witness-box—Statement made to police officer during investigation of a cog-nizable offence—Admissibility—Conspiracy, between August 1958 and September1959, to commit or abet murder—Illegality of sentence of death—Penal Code,ss. 102, 113B, 296—Criminal Procedure Code, as. 121, 122 (3), 123, 134, 232,283 (4)—Evidence Ordinance, ss. 21, 24, 25, 27, 30, 91, 120 (6), 142, 143, 157—Suspension of Capital Punishment {Repeal) Act No. 25 of 1959, ss. 2, 3 (a)—Interpretation Ordinance {Cap. 2 Revised Ed. 1956), s. 6 (3).
Where several accused are tried jointly, and one of them elects to giveevidence on oath in his own behalf and, in doing so, inculpates his co-accused,the jury should be warned of the danger of basing a conviction of the co-accusedon the evidence of the witness unless it is corroborated in material particulars.It cannot be contended that the evidence of the witness is totally inadmissibleagainst the co-accused as being a “ confession ” within the meaning of section30 of the Evidence Ordinance.
Where, in a case to which section 27 of the Evidence Ordinance did notapply, oral evidence, which was objected to as inadmissible, was neverthelessadmitted of an oral statement made by an accused person to a police officerwho was investigating a cognizable offence under Chapter XII of the CriminalProcedure Code—
Held, that the use of the oral statement made to the police officer by theaccused was as obnoxious to the prohibition contained in section 122 (3) of theCriminal Procedure Code as the use of the same statement reduced into writing.Rex v. Jinadasa (1950) 51 N. L. R. 529, discussed.
It is an Unwritten rule that, except in the case of expert witnesses, Counseldoes not interview a witness once he is in the witness-box. Once the cross-examination commences, even an expert is not interviewed.
19, 20 & 21—LxmR.1683—2,033 (3/62)
434
The Queen v. Mapitigama Buddharakkita Thera and 2 others
Under the Suspension of Capital Punishment (Repeal) Act No. 25 of 1959,only a sentence of imprisonment for life, and not a sentence of death, can beimposed upon the conviction of a person of the offence of conspiracy to commitor abet murder, if the offence had been committed by him during the periodof operation of the Suspension of Capital Punishment Act No. 20 of 1958.
The 1st, 2nd and 4th accused-appellants were convicted, at the trial, ofconspiracy to commit murder, and the 4th accused was convicted of murder.The 3rd and 5th accused, who were also charged with conspiracy to commitmurder, were found not guilty. The deceased was the Prime Minister of Ceylonand the leader of a political party at the time he was shot by the 4th accusedon 25th September 1959.
Held, (i) that the admission in evidence of a confession made by the 4thaccused to the Magistrate, even assuming that the confession was not voluntaryand was obnoxious to section 24 of the Evidence Ordinance or was otherwiseinadmissible, could not vitiate the conviction of the 4th accused, because thefact that the 4th accused killed the deceased was established beyond any mannerof doubt by the direct evidence of some of those present at the deceased’s houseat the time when he was shot there.
Obiter : No police officer who is not empowered to investigate a cognizableoffence under Chapter XII of the Criminal Procedure Code may legally actunder that Chapter even though he be attached to the Criminal InvestigationDepartment.
that the right of an accused person to make an unsworn statement fromthe dock is recognized in our law. That right would be of no value unless sucha statement is treated as evidence on behalf of the accused, subject however tothe infirmity which attaches to statements that are unsworn and have notbeen tested by cross-examination.
that, considering that the murder which was the subject of the allegedconspiracy was that of the Prime Minister and that there was at least a stronglikelihood that the motive for the murder was political and not purely a privateone, the evidence concerning the 1st accused’s political and business interestswas relevant to show positively that he was ambitious, if not for political poweritself, at least to wield political influence. If this evidence did in fact create animpression that the 1st accused, who was a Buddhist monk, did not pay muchregard to the code ordinarily accepted by Buddhist monks and was thereforeunworthy of the robe of a monk, that was quite unavoidable.
that the omission of prosecuting Counsel to tender evidence in supportof certain statements made by him in his opening address in compliance with therequirements of section 232 of the Criminal Procedure Code did not vitiate theconviction of the accused inasmuch as, having regard to the length of the trial(which lasted nearly three months) and suitable directions given by the Judgeto the Jury, there was no miscarriage of justice.
that that jury were duly warned in the present case that an accomplice’sevidence must be corroborated by independent testimony from somebody otherthan the accomplice. Nor was there any question of the jury being invited toregard as corroboration items of evidence each capable of an innocenti n terpretation.
that, although there was some misdirection on the subject of the crimerevolver and it could be complained with some justification that the trial Judgelaid too much emphasis, in his summing-up, on the arguments of Counsel forthe prosecution and permitted too many leading questions to be put tothe witnesses on crucial matters, it could not be said that the irregularitiesoccasioned a miscarriage of justice.
BASNAYAKJS, C. J.—The Queen v. Mapitigama Buddharakkita Thera485
and 2 others
that, although the 5th accused, when he gave evidence in his own behalf,implicated the 1st, 2nd and 4th accused, the jury were properly warned by thetrial Judge of the danger of convicting the co-accused on his evidence unlessit was corroborated in material particulars.
that the evidence of an oral statement made by the 2nd accused to thepolice officer who investigated the offence under Chapter XU of the CriminalProcedure Code should not have been admitted in contravention of the pro-visions of section 122 (3). However, the improper admission of this evidencewas not by itself a ground for a new trial or reversal of the verdict inasmuch as,independently of it, there was sufficient evidence to justify the verdict.
that the sentence of death passed on the accused-appellants for thecommission of the offence of conspiracy to commit or abet murder was illegalfor the reason that the offence was committed by them during the period ofoperation of the Suspension of Capital Punishment Act No. 20 of 1958. Theretrospective operation of the provisions of the Suspension of Capital Punish-ment (Repeal) Act No.25 of 1959 relating to the imposition of capital punishmenton a person convicted of an offence of murder, which had been committed byhim prior to the date of the commencement of that Act, were not applicableto the offence of conspiracy to commit or abet murder.
j.PPEALS against three convictions in a trial before the SupremeCourt.
G. Wikramanayake, Q.C., with E. A. G. de Silva, Robert Silva,S. SurUheralingam, Nimal Wikramanayake, Manivasagam Underwoodand S. C. Crossette-Thambidh (assigned), for 1st Accused-Appellant.
M. M. Kumarakidasingham, with E. A. G. de Silva, P. Nagendram and
A. de Silva (assigned), for 2nd Accused-Appellant.
G. Weeramanthri, with Anesley Perera, D. R. P. Rajapakse and M. B.Jayasekera (assigned), for 4th Accused-Appellant.
G, E. Ghitty, Q.C., with Ananda Pereira, Senior Crown Counsel, L. B. T.Premaraine, Crown Counsel, and V. S. A. PuUenayegum, Crown Counsel,for Attorney-General.
Cur. adv. wit.
January 15, 1962. Basnayake, C.J.—
The three accused-appellants, Mapitigama Buddharakkita Thera,Hemachandra Piyasena Jayawardena, and Talduwa Somarama Thera,the 1st, 2nd, and 4th accused respectively, along with two others, Palihak–karage Anura de Silva and Weerasooriya Arachchige Newton Perera,the 3rd and 5th accused respectively, were indicted on the followingcharges :—
“ 1. That between the 25th August 1958 and the 26th September1959 at Kelaniya, Wellampitiya, Rajagiriya, Colombo, and otherplaces, within the jurisdiction of this Court, you did agree to commit or
436
BASNAYAKJE, C.J..—The Qzieen v. Mapiti-gama Buddharakkila Thera
and 2 others
abet or act together with the common purpose for or in committing orabetting an offence, to wit, the murder of Solomon West Ridgeway DiasBandaranaike, and that you are thereby guilty of the offence of conspiracyto commit or abet the said offence of murder, in consequence of whichconspiracy the said offence of murder was committed, and that you havethereby committed an offence punishable under section 296 read withsections 113b and 102 of the Penal Code.
“ 2. That on or about the 25th September 1959 at No. 65 RosmeadPlace, Colombo, within the jurisdiction of this Court, you TalduweSomarama Tbero, the fourth accused above-named did, in the course ofthe same transaction, commit murder by causing the death of the saidSolomon West Ridgeway Dias Bandaranaike, and that you have therebycommitted an offence punishable under section 296 of the Penal Code.”
After a trial which commenced on 22nd February 1961 and ended on12th May 1961 the 1st, 2nd, and 4th accused were by a unanimous verdictfound guilty of the charge of conspiracy to murder and the 4th accusedof the charge of murder of Solomon West Ridgeway Dias Bandaranaike(hereinafter referred to as the deceased) and sentenced to death. The3rd and 5th accused were found not guilty and acquitted. The formerby a unanimous verdict and the latter by a divided verdict of 5 to 2.
It would be helpful if the following general facts are stated before thegrounds urged on behalf of each of the appellants are discussed :—Thedeceased was the Prime Minister of Ceylon and the leader of the SriLanka Freedom Party (hereinafter referred to as the S. L. F. P.) at thetime he was murdered. He lived at his private residence at No. 65Rosmead Place, which also faced another road known as McCarthyRoad which intersected it at the point at which the deceased’s house was.The 1st accused was at all material times the Viharadhipati of an ancientand well-known temple called the Kelaniya Raja Maha Vihare (herein-after referred to as the Kelaniya Vihare). The 2nd accused wras a closeassociate of the 1st accused and was at one time the President of the Boardof Indigenous Medicine. He was also the owner of a printing press andwas generally engaged in business and other activities. The 3rd accusedwas a resident of Kelaniya. His residence was not far from the KelaniyaVihare. He was a motor mechanic specialising as a tin smith employedunder a garage owner named Waragoda Kankanamalage Don Sirisenacommonly known as Michael Baas also a native of Kelaniya who had hisworkshop at No. 171 Kynsey Road in Colombo. Michael Baas was amember of the Village Committee for the Peliyagoda Ward since 1957and till 1959 a member of the S. L. F. P., whose candidate for the Kelaniyaconstituency he supported in the -1960 Parliamentary Elections. The4th accused was an ayurvedic physician specialising in diseases of the eyeand was a member of the staff of the Hospital of Indigenous Medicine anda lecturer at the College of Indigenous Medicine, also referred to in theevidence as the Auryvedie College, situated at Rajagiriya. He residedat a place called Amara Vihare close to it. A bhikkhu known as Boose
BA3XATAKE, C.J.—The Queen v. Mapiiigama Buddharakkita Thera 437
and Bothers
Amarasiri woe its incumbent. The 5th accused was an Inspector ofPolice attached, at the relevant date, to the Grimes Branch of the Kollo*pitiya Police Station. He was also a native of Kelaniya whose ancestralhome was not far from the Kelaniya Vihare of which his parents and hewere dayakayas.
The 3rd and the 5th accused were, as participants in the activities ofthe temple, well-known to the 1st accused. The 1st and 2nd accusedwere interested in politics and were founder members of the S. L. P. P.The former was also one of its patrons. The 1st accused supportedMrs. Wimala Wijewardene who unsuccessfully contested the Kelaniyaconstituency as a candidate of the S. L. F. P. in the 1952 ParliamentaryElections. In the 1956 Parliamentary Elections he supported Mr. R. G.Senonayake as an independent candidate for the Kelaniya constituencyand Mrs. Wimala Wijewardene as an S. L. F. P. candidate for the Mirigamaconstituency. The 4th accused was also interested in politics and hadparticipated in the 1952 elections as a supporter of the deceased’s party.He had presided at several meetings at which the deceased addressedthe voters.
Both the 1st and 2nd accused owned cars, the former an Opel Kapitanpainted cream and the latter a Fiat painted black. The 1st accused had achauffeur but his car was driven by the 2nd accused on occasions onwhich they happened to travel in it together. The 1st accused waspossessed of means. His brother, Dr. K. K. 17. Perera also a man ofmeans, was a medical practitioner in private practice in Peliyagoda. The1st and 2nd accused were close associates in both political and otheractivities. They were both well-known to Mrs. Wimala Wijewardenewho was a member of the Cabinet till a short while after the death of thedeceased. They often met at her home. Carolis Amerasinghe, thealleged accomplice, who was the 7th accused at the early stage of theinquiry in the Magistrate’s Court and later examined as a witness after hehad been given a conditional pardon under section 283 of the CriminalProcedure Code, was an Ayurvedic Physician who practised his professionat Dematagoda in Colombo. He was also a person interested in politicsand was a founder member of the S. L. F. P. and a member of itsCommittee. He was a man of means and standing, and was the Chairmanof the Koloimawa Urban Council at the time of the murder of thedeceased. He also had an Opel Kapitan of a colour similar to that of the1st accused. He described the colour as ivory. He was the familyphysician of the 2nd accused and they were known to each other fromtheir childhood. In 1956 or 1957 after the S. L. F. P. came into power hewas appointed a member of the Board of Indigenous Medicine of whichthe 2nd accused was appointed President and the 1st accused and thewitness Kelanitillake were members. In the same year the 4th accusedwas appointed by the Board as an eye specialist in the Hospital ofIndigenous Medicine. The witnesses Kelanitillake and Kalansuriya werealso staunch supporters of the party. At the relevant time they wereboth resident in Kelaniya.
2*R 1383 (3/02/
438 BASNAYAJtE, C.J.—The Queen v. Mapitigama Bvddharakkita Thera
and 2 others
With these general observations it will be convenient now to turn tothe questions arising on the appeals and deal with the case in the orderin which the learned trial Judge dealt with it in his summing-up. Thecharge of murder which is against the 4th accused alone falls to be dealtwith first. The evidence against him on this charge consists of the directevidence of some of those present at the deceased’s house at the timeof the shooting and the accused’s confession made to a Magistrate andrecorded under section 134 of the Criminal Procedure Code.
The witness Asoka Christopher Seneviratne states that he went to thedeceased’s residence with his unele Stephen Dias Bandaranaike between
30 and 8-45 in the morning in order to obtain a certificate of characterfrom him. He says that the 4th accused arrived after he had been therefor about 20 minutes. At that time he was seated in the verandah.After, entering the verandah the 4th accused walked up and peeped intothe drawing room and came back and occupied a vacant chair near himand engaged in a conversation with him, in the course of which he dis-closed that he was from the Ayurvedic Hospital. While the 4th accusedwas there others came in. Those noticed by the witness Seneviratnewere the American Ambassador, Mr. N. E. Weerasooria, and the witnessNivantidiye Amanda. The deceased first saw the American Ambassadoroff, next he attended to Mr. Weerasooria. The witness was the thirdperson to receive the deceased’s attention. He did not see the attackon the deceased as he had gone to the office to write down certain parti-culars about himself which the deceased wanted. While he was doingsoihe.heard gun shots.
Nivantidiye Amanda states that he got to the deceased’s house at about
50 a.m. and noticing the 4th accused, whom he knew before, spokewith him. The only two persons in yellow robes were the witness and the4th accused. The deceased came up to the witness and referred to apetition he had given him on the previous day and informed him of theaction he had taken and saluted him and moved towards the 4th accused,bowed his head, saluted him, and asked him why he had come. As thedeceased spoke he was shot. The deceased cried in pain and ran into thehouse followed by the 4th accused with revolver in hand.
Although the witness Barnes Ratwatte, a brother-in-law of the deceased,heard three or four shots when he was in the circular side verandah hepaid little heed to them until he noticed his sister who was in the gardenrush into the house. He followed her and he saw the 4th accused follow-ing the deceased with a revolver in his hand stooping forward and point-ing it at him. His sister rushed up, held the deceased by one hand andwith the other caught the 4th accused by his robes. The deceasedseemed to attempt to seize the accused but he ducked and evaded theattempt. As he did this one Hema Dabare jumped on the accused andthe witness did likewise and both of them grappled with him till he fell.Dabare, the witness, and his brother held him down and dealt him a fewblows and were soon joined by others. At this stage the revolver dropped
BASNAYAKE, C.J.—The Q u&en v. Mapitigama Buddharaktila Thera439
and 2 others
from the accused’s hand. He tried to recover it while those aroundhim were endeavouring to keep him off it. The witness next went into attend to the deceased.
Vedage Piyadasa is another eye-witness. He had gone on the samemission as Ananda but reached the deceased’s residence before him.He was behind Ananda’s chair at the time the deceased came up to the4th accused. He says that as the deceased saluted him and addressedhim the accused pulled out a revolver from underneath his robes andfired at him. The first shot caught him on the back of his hand. Hefired a second time and got him in front of the chest. The deceasedcried “ Buddu Amme ” and ran in with the accused following him withthe revolver pointing at him.
The witness Wickremasinghe who was also one of those present in theverandah at the material time states that after speaking with Anandathe deceased moved towards the 4th accused who got up hurriedly,took a step or two towards the deceased and fired, and the deceased raninside raising cries. The 4th accused chased after him with the revolver.He heard two more shots inside the house. Later the 4th accused wasshot by constable Samarakoon and was overpowered, taken to the officeroom and detained there. It is also established that PI is the revolverwith which the accused shot.
The statement made by the deceased as to the cause of his death revealsthat he was shot by a Buddhist monk with a revolver which he drewout of his robes. The medical evidence disclosed gun shot injurieson the back of the left wrist, on the back of the left hand, on the rightside of the chest, on the left side of the chest, on the right hip, and leftlower abdomen. There were four entrance and three exit wounds. Thebullet lodged in his body was removed by the surgeon who attended onhim.
The evidence of the witness Ananda was challenged by the 4th accused.
It was even suggested that Ananda or some other person in robes was thereal assailant. The basis on which the suggestion was made was that thedeceased knew the 4th accused and if he had been his assailant he wouldhave named him instead of saying that a Buddhist monk shot him.
On this evidence alone the jury were perfectly entitled to find that itwas the 4th accused and no other who murdered the deceased by shootinghim with the revolver PI. But the prosecution went further and tenderedin evidence a confession made by him to the Magistrate on 14th‘ November1959 at the Magistrate’s residence in Mt. Lavinia while the accused wason remand in Fiscal’s custody. The admission of this confession inevidence was objected to on the ground that it was not voluntary andwas obnoxious to section 24 of the Evidence – Ordinance. It will betherefore necessary to examine that objection. The confession reads—
In August 1959 when I was in the dispensary at Borella the highpriest of the Kelaniya temple Buddharakkita came and told me that* if things go on like this we will have no place in this country ’. We got-
440
BASNAYAKE, C.J.—The Queen v. MapUigama Buddharakkita Thera
and 2 others
. into a car and it was in the car that this conversation took place. Iwas dropped at my residence at Obeysekerapura. Buddharakkitacame again the following day to my residence. He stopped the car….on the road and sent for me. It was about 7-00 p.m. I came to the., .car and Buddharakkita told me that f several lakhs of money is beinglost at the harbour and there is no future for the Sinhalese or thelanguage if things go on like this. Let us therefore destroy the PrimeMinister. After that we could carry on our work as we wish ’. Iasked him what was going to happen to us. ‘ Nothing will happento you ’ he said. ‘ I have made arrangements with everybody whowould be necessary for this*. H. P. Jayawardena was also presentin the car at the time. Jayawardena said * Only do this job and in2 or 3 weeks you will be out of remand ’. I told them that I had 2. . pupils and also my temple to look after. They said * We will look afteri;all that ’. I then asked them ‘ When I am to do the job ? ’. I alsotold them that ‘ I am willing to do this job to a man who had done meno wrong only for the sake of my country and my religion and race.’
. They then told me ‘ Tomorrow or the day after we will get you arevolver.’ So saying they went away. About two days later Buddha -■ rakkita brought me a revolver which was about a foot long.' Therevolver had six chambers. All 6 were loaded. The following day 8more cartridges were brought by them. We took these and therevolver and went to Ragama to the house of Dickie de Zoysa. We metDickie de Zoysa. With him, Buddharakkita, Jayawardena and I went… to Muthurajawela. I was asked to fire at the kaduru fruits whichwere on trees by the road. I fired at these fruits. One of them said1 That is good, but whatever happens don’t tell anybody. We willsave you.’ Then Dickie Zoysa stayed behind. The other two droppedme at my residence. I had fired 8 cartridges at Muthurajawela. I thenloaded the other six. After that Buddharakkita and Jayawardenaused to come and see me daily. One day C. Amarasinghe the Kolon-nawa U. C. Chairman also came. Buddharakkita, Jayawardena and Idecided on 25th September as the day on which to shoot the PrimeMinister. At about 8 or 8.30 a.m. on September 25th I took a medicineto make myself brave and went to the Prime Minister’s residence. The. Prime Minister came out and spoke to a priest. I became nervous butI soon became very bold probably due to the medicine. I then fired atthe Prime Minister. I fired one shot in the verandah. That struck. him. Then the Prime Minister went into the house. I followed andfired 3 more shots. These shots also struck the Prime Minister. At. this stage I fell down and somebody shot me. Thereafter I do notremember clearly what happened.”
The statement was made in Sin ha la and recorded by the Magistrate whoattached the following certificate to it :—
“ I hereby certify that the above record of the statement of TalduweSomarama was taken by me and contains accurately the whole of his
BASNAYAKE, C.J.—The Queen v. Mapitigama Buddharakkita Thera 441
and Z others
statement and that it was not practicable to me to record it in Sinhalain which language it was given. I have a very good knowledge ofSinhalese. I have explained to him this statement in Sinhalese.”
Several submissions were made in regard to this confession, itsadmission in evidence and the directions of the trial Judge concerning it,the principal submissions being the following :—
.(a) That, upon all the evidence elicited at the trial with regard to the
circumstances antecedent to the making of the confession, the defencehad succeeded in establishing that it was not voluntary, and that thejury should have been directed accordingly.
The 4th accused was on remand, from the day after the shooting,first in the General Hospital and later in the prison hospital, till herecovered from the gun-shot wound inflicted by constable Samarakoon.On the very day of the shooting, Colombo Saranankara a bhikkhufriend of his went to see him at the instance of Inspector Wettasingheof the C. I. D. under the guise of friendship but in fact as a police spyand in order to get information pertaining to the assassination.
Thereafter on the 2nd, 3rd, 13th, 22nd, and 31st of October and onthe 7th of November, the 4th accused was questioned by police officers,sometimes by three or four of them, and on some occasions for quitelong periods. Twice he was given cigarettes by these officers ; the 4thaccused having been addicted to opium, counsel suggested that thecigarettes may have contained opium.
These and other similar facts, it was argued, established the probabletruth of the 4th accused’s statutory statement at the Magisterial inquirythat the confession had been induced partly by threats and partly bypolice promises that he would be released if he made a statement to theMagistrate implicating himself and the 1st and 2nd accused.
(6) That the confession had been the consequence of a long andwearing process of interrogation by the police, which was illegal becauseChapter XII of the Criminal Procedure Code does not authorise theinterrogation of a suspect remanded to the Fiscal’s custody. It wasargued that the interrogation of a person charged with an offence wasprohibited by section 123 of the Code.
That since the confession had been retracted in the statutorystatement to the Magistrate the jury should have been warned that itis unsafe to act upon the confession unless it is corroborated in materialparticulars, or unless after full consideration of all the circumstancesthe truth of the confession is clearly established. There are decisions ofAfrican Courts to this effect (Toyi v. R.1 ; Onyango Otolito v. R.2).
That in any event the prosecution must prove affirmatively andbeyond reasonable doubt that the confession had been voluntary .and
11960 E. A. L. R. 760.
* 1958 E. A. L. R. 471 and 1959 E. A. L. R. 986.
442 BA3NAYAKE, C.J.—The Queen v. Mapitigama BuddharctkkiUi Thera
and 2 others
not the consequence of any inducement, threat or promise, and that thelearned Judge failed to direct the jury correctly on the law governingthis matter. Reliance was placed on the decision in Queen v. A mar isAppu1; Thompson2 ; Ibrahim v. R.9 ; Bass* ; Murray4 5 ; Stuart v. TheQueen9 ; JR. v. Masinyana7 ; R. v. Ndoyana and another8 ; R. v. D.9 ;and other cases.
It is not necessary to discuss the arguments on either side with regard tothese submissions, or to express any opinion thereon. Even if any or allof these submissions are entitled to succeed, that would make no differencein the instant case, because the fact that the 4th accused killed the deceasedwas established beyond any manner of doubt by the direct evidence.Indeed, it is surprising that with that evidence available the prosecutionthought it necessary to lengthen the proceedings so much by seeking toprove the confession.
In the course of the argument it was submitted that the officers whointerrogated the accused were neither officers in charge of a police stationnor subordinate officers deputed by an officer in charge of a police stationto investigate the crime, and the legality of their action was challenged.It is sufficient to say that no police officer who is not empowered to investi-gate a cognizable offence under Chapter XU of the Criminal ProcedureCode may legally act under that Chapter even though he be attached tothe Criminal Investigation Department.
Before leaving this part of the case reference should be made to thestatement made by the accused from the dock. The right of an accusedperson to make an unsworn statement from the dock is recognised in ourlaw (Kingv. VeUayan10.) That right would be of no value unless such astatement is treated as evidence on behalf of the accused subject howeverto the infirmity which attaches to statements that are unsworn and havenot been tested by cross-examination. In the course of that statementwhich the jury were invited by the trial Judge to consider as a matterbefore them which they had to take into account in arriving at theirverdict, but not as evidence, the accused said—
“ In the morning of the 25th September 1959 I went to meet thePrime Minister. I went and sat on a chair that was on the verandah.The Prime Minister came out, spoke to a number of persons on theverandah and thereafter came up to me and asked me why I had come.I told him that I came to remind him of some very important matterspertaining to Ayurvedha. The Prime Minister wanted me to communi-cate in writing so that he could make a report to Mr. A. P. Jayasuriya.He wanted me to give details to Mr. A. P. Jayasuriya and he said thathe too would remind and speak about them. I said, ‘ All right ’, andI had placed my handkerchief and my paper on the stool and I was
(189-5) 1 N. L. R. 209.
(1893) 2 Q. B. 12.
(1914) A. C. 599.
37 Cr. App. R. 51.
6 34 Cr. App. R. 203.
4(1958- 59) 101 C. L. R. p. 1 at. 6.
(1958) 1 S. A. L. R. 616 at 621.
(1958) 2 S. A. L. R. 562.
» (1961) 2 S. A. L. R. 341.
10 (1918) 20 N. L. R. 257 at 266.
BASNAYAKE, C. J.—The Queen v. Mapitigama Buddharakhita Thera443
and 2 others
getting ready to go. As I turned to pick them up I heard two or threegun shots, I remained petrified and was looking in that direction.Then two persons in robes in the company of some others ran in thedirection of the compound. I find it difficult to express the conditionthat prevailed at that time as I had such fear in my mind. I noticeda pistol dropped about three or four feet away from me. I noticed thePrime Minister entering the house through the doorway having receivedsome gun shots. Taking the pistol, and wondering what had happenedto the Prime Minister, I went inside the house with the idea of handingover the pistol to someone. I carried it in this manner in front of mybody (witness demonstrates the manner in which he carried the pistolin his hand). As I went up there was somebody there and I said* Someone shot with this and ran away Before I could finish sayingthat he jumped on me. I asked him to wait till I related the incident.He did not listen to that. He struggled with me and I fell down.As I lay fallen I was shot. ”
The rest of the statement refers to the visits of the police officers to him injail and what they said and did. His statement is in general accord withthe evidence of the eye-witnesses, except for the fact that he denies thathe shot the deceased. The jury have obviously rejected his extraordinaryexplanation for his handling the revolver with which the deceased wasshot.
So much for the charge of murder. The charge of conspiracy calls forattention now. It is a charge which concerns all three appellants and theprosecution case was based on the evidence of the alleged accompliceCarolis Amarasinghe. After the 5th accused gave evidence implicatingthe 1st, 2nd and 4th accused the Crown sought to make use of his evidenceand probed his story at great length. The corroborative evidence reliedon by the Crown against the 1st and 2nd accused is not exactly the same.The material against the latter is less than that against the former. Asagainst the 4th there is the strong circumstance of his shooting thedeceased.
Although numerous grounds of appeal have been stated in the respectivenotices of appeal—48 in the case of the first accused, 45 in the case of thesecond accused, and 60 in the case of the fourth accused—learned counsel’ssubmissions fall under a few broad heads. The submissions made onbehalf of the 1st accused may be grouped under the following heads :—
(а)That by improper admission of evidence he was denied a fair trial
in that such evidence showed—
that he was a man of violent disposition ;
that he was a monk who did not observe the rules of hisorder. (б)
(б)That the counsel for the Crown made statements of fact of a highly
prejudicial character on which no evidence was led.
444BASNAYAJCE, C.J.—The Queen v. Mapitigama BuddharakTcita Thera
and 2 others
That the jury were directed that evidence which did not afford
corroboration of the accomplice’s evidence were in factcorroborative.
That the jury were not directed that evidence which was capable
of an innocent as well as a guilty meaning did notafford corroboration.
That the jury were not told that a number of instances of corro-
borative evidence each capable of an innocent interpretation donot when added afford corroboration.
{/) That the decision of the question whether the 1st accused had anyconnexion with the revolver Pi was not left to the jury.
That the trial Judge laid too much emphasis in his summing-up
on the arguments of counsel for the Crown and gave too littleattention to the submissions of counsel for the 1st and 2ndaccused.
That the value of the evidence for the prosecution was impaired
by the large number of leading questions put to the witnesses.
That the jury were not properly directed in regard to the manner
in which they should treat the evidence of the co-accused NewtonPerera.
That the demonstration given by the Government Analyst of
firing 450 bullets with PI was prejudicial to the 1st accused.
That the sentence of death passed on the accused is illegal.
The above points will now be discussed in their order.
The evidence against which learned counsel complains under the headof improper admission of prejudicial evidence falls under four heads :(i) The Govi March, (ii) The Town Hall Meeting, (iii) The KurunegalaS. Li. F. P. Sessions, and (iv) the unorthodox behaviour of the 1st accusedat the house of Mrs. Wimala Wijewardene.
It was submitted that irrelevant evidence was improperly introducedin the case and that the 1st accused was thereby prejudiced as some ofthe items of such evidence reflected on his character, and that on thisground alone he would be entitled to a fresh trial. It was further sub-mitted that in addition to this evidence of bad character there was otherirrelevant evidence principally concerning the 1st accused and that inview of the directions of the learned trial Judge which would have led thejury to utilise against the 1st accused and his associate the 2nd accusedboth the evidence of bad character and the irrelevant matter, the verdictultimately reached against him on the charge was unreasonable.
There was evidence to the effect that, at the house of Mrs. WimalaWijewardene which he visited quite often and stayed at for the greaterpart of the day, the 1st accused had no regular hour for his forenoon meal,that at times he had it before noon, that at other times he took it after12 noon about 1 or 2 p.m., that he took his meals along with the ladies
BASNAYAKJS, C.J.—The Queen v. Mapitigama Buddharakkita Thera445
and 2 others
sitting at the same table with them like any layman, that he had mealsof solid food at night also and that on certain occasions he spent the nighttoo in that house. It was also elicited that, presumably because the 1staccused did not conduct himself in the manner usual to a monk, he wasnot always accorded the ordinary marks of respect such as the customarysalutation and the laying of a white cloth upon his chair. If it must beassumed that the evidence in this category is in law evidence of badcharacter, we are unwilling to accept the excuse put forward by Mr. Chittythat it was necessary for the prosecution to prove that the house atBuLler’s Lane, which was the residence of Mrs. Winjala Wijewardene, was asort of “ second home ” to the 1st accused where he spent much of his time.The fact could have been satisfactorily established without showingfurther such details of the 1st accused’s conduct as tended to indicatethat he did not pay much regard to the code ordinarily accepted by Buddhistmonks in this country. Nevertheless even if some injury was caused tothe reputation of the 1st accused in this manner it did not heighten the effectof other relevant evidence which the prosecution properly led with a viewto prove that, although the 1st accused was a monk and therefore a personwhom a jury would not ordinarily expect to be interested in wielding poli-tical influence and in gaining the benefits which often unfortunatelyaccrue from such influence, he was nevertheless such a person in fact.
There was abundant evidence to show that the 1st accused had between1952 and the time of the assassination been deeply interested in politics.This interest was first evinced when in the General Election of 1952 hesponsored the candidature of Mrs. Wimala Wijewardene unsuccessfullyfor the Kelaniya seat. This failure was turned into success at the electionfor the Mirigama seat in 1956, when, .in addition, the 1st accusedin support of the S. L. F. P. took a prominent part in a number of electionmeetings at Kelaniya, Mirigama and in other electorates. In addition tobeing a founder member and a Patron of the S. L. F. P. he was a memberof the Eksath Bhikkhu Peramuna which according to the evidence itselfprominently supported the same party in and after 1956.
There was evidence to the effect that the 1st accused interested himselfin the appointment of Kelanitillake to the Board of Indigenous Medicineand the 4th accused to the staff of the Hospital of Indigenous Medicine.Counsel for the 1st accused could not complain that the items of evidencewhich have just been mentioned were not relevant, for it was the case forthe prosecution that the 1st accused ultimately began to feel that hisinfluence with the deceased was waning.
According to the evidence Malewana Gnanissara the President of theBoard and Dr. Lenora the Principal of the College of Indigenous Medicineresigned somewhere towards the end of 1956 or early in 1957 in protestagainst the appointment to the Board of the witness Carolis Amarasinghe,who in their view was an unqualified person. In that connexion therewas a move among a section of the students to hold a meeting in theTown Hall in Colombo, apparently with a view to demanding the returnto office of the two members who had resigned. It was alleged in the
446 BASNAYAIOS, C.T.—The Queen v. Mapitigama BuddharaJckita Thera
and 2 others
evidence that the 1st accused on that occasion interested himself incollecting funds and gathering people, his object being (as it was describedin the evidence) to “ break up the meeting ”. It is not clear whetherthis object was successfully achieved but apparently the 3rd accused andsome others were injured in the course of incidents which actually occurred.The complaint in regard to this matter has been that the evidencewould have led the jury to regard the 1st accused as accustomed to theuse of violence to gain his objects. Perhaps some such impression mayhave been created in the minds of the jury, but the evidence was relevantto show that in this instance the 1st accused took a leading and activeinterest in support of a particular action which had been taken by amember of the deceased’s Cabinet.
There was evidence that about March 1958 the Minister of Agriculturehad made an order that the Government’s Guaranteed Purchase Price ofpaddy at Rs. 12 a bushel should not be paid to the cultivator wholly incash, and that Rs. 2 per bushel should be kept back to be paid apparentlyin kind in the form of fertilizers and agricultural equipment. Thatorder had been discussed at the Kelaniya sessions of the S. L». F. P.In protest against this order a number of farmers came to Colombo fromPolonnaruwa in order to make a demonstration and they proposed tomarch to Gordon Gardens in the Fort near the Cabinet Office where aCabinet Meeting was to be held. On the way the procession from theRailway Station was stopped by the police, but was allowed to continuewhen Mrs. Vimala Wijewardene, then Minister of Health, put herself atthe head of the procession. This demonstration resulted in a skirmishbetween the farmers and some Colombo Harbour workers but ultimatelythe order of the Minister of Agriculture was revoked. The 1st accusedapparently was present at Gordon Gardens although he took no part inthe meeting or demonstration. What has been said about this ‘ GoviMarch *' in itself indicates that no aspersion was cast on the characterof the 1st accused by the evidence on this matter but we consider the*the evidence was of some slight relevance in that it showed some tendencyon the part of the 1st accused to take an interest in political issues, in thisinstance in a matter which had the strong support of Mrs. Vimala Wije-wardene. In another context in a conversation with Mr. Kalugalla,then a Parliamentary Secretary, the 1st accused had referred to her as“ our Minister ” and had invited him to form a new political party whichshe too would join.
The same tendency is again indicated in the evidence concerning theKurunegala sessions of the S. L. F. P. held in March 1959. The witnessKelanitillake said that shortly prior to those sessions he received a messagefrom the 1st accused to meet him at Kelaniya Vihare and he was toldthat it was necessary to go to Kurunegala together with members of theParty as well as a crowd in order (as the 1st accused is alleged to havesaid) to “ see that people we want are elected to offices ” in the Party.The 1st accused on the same occasion made certain remarks which arereferred to in another part of this judgment as being significant of very
BAS NAY AKE, C.J.—The Queen v. Mapitigama Buddharakkita Thera 447
and 2 others
strong ill-will against the deceased. For present purposes howeverit is sufficient to note that a remark such as this “ in order to get thisParty into power I have spent over a lakh. There is no purpose servednow, he is of no use now ; he must be driven out, ” was made. Thewitness Kelanitillake was not himself a member of the S. L. F. P. but heinformed the 1st accused that one Michael Baas was a member. There-after the witness accompanied the 1st accused to Michael Baas’ garagewhere the latter too was told by the 1st accused to get ready with a gangof people to go to the Kurunegala sessions. This evidence disclosed anadmission on the part of the 1st accused that he had spent large sums ofmoney to put the governing party into power and also that when he foundGovernment policies not to be in accord with his own ideas he proposedif possible to place in power leaders of his own choosing, even if this wouldinvolve open opposition to the deceased.
Considering the totality of the evidence to which reference has beenmade so far in this connexion, it was relevant for the purpose of indicatingto the jury that the 1st accused’s interest in politics was not restricted tolending his support either to the party in general or to any individualcandidate in particular, but also involved heavy expenditure on his part.It further indicated that after success had been achieved at the 1956Parliamentary Elections the 1st accused expected to obtain and did infact obtain a price for his support in the form of appointments for hisnominees. At a later stage when the deceased’s Government appearedto be carrying out policies not favoured by the 1st accused the evidenceindicates that his reactions were forceful and that he proposed to exerthis influence upon Government policies.
The prosecution led some evidence on which the jury were invited tohold that the 1st accused was financially interested in a company calledThe Metal '& General (Ceylon) Trading Corporation Limited. Theevidence principally relied on in tills connexion was that of the witnessKalansuriya who stated that the 2nd accused had requested him to standsecurity with a Bank in connexion with a guarantee which the Bank wasto provide on behalf of the Company. What the 2nd accused preciselywanted was that the deeds for some property of Kalansuriya should beoffered to the Bank as security. In view of the promise by the 2ndaccused of Rs. 20,000 for furnishing the security Kalansuriya was agree-able to the proposal. The 2nd accused then took him to the house ofMrs. Wimala Wijewardene and there introduced him to the 1st accusedwho asked him whether he was prepared to give the deeds and he saidhe was prepared to do so if the 1st accused would enter into an agreementto compensate him in order to safeguard his interests. Kalansuriyawas given to understand that the 1st accused was agreeable to thissuggestion. During the conversation Kalansuriya in the presence of the1st accused asked the 2nd accused “ Why are you asking my deeds ;has hot the' 1st accused got property In reply the 2nd accused said
448 BASNAYAKJE, C.J.—The Queen v. Mapitigama Buddharakkita Thera
and 2 others
that they did not want to show the Government that they were interestedin the matter and therefore they did not want to take the temple propertyand that was why they wanted Kalansuriya’s deeds.
Ultimately Kalansuriya took no part in the proposed transaction,but it seems that the evidence which has just been summarised couldproperly lead the jury to infer that the 1st accused was anxious to assistthe Company and may even have been agreeable to pledge his own creditin order to induce Kalansuriya to give the required security.
Another witness A. J. Fernando who apparently was concerned in themanufacture of bodies for lorry chassis gave evidence to the effect thatthe 1st accused asked him whether he could arrange for the constructionof some lorry bodies and upon his agreeing to do so, the witness receiveda letter in August 1958 from the Metal & General (Ceylon) Trading Cor-poration enclosing a cheque for Rs. 1,000 on account of lorry bodies.The witness was instructed in that letter to despatch the lorry bodiescompleted to Kantalai where the Company was carrying out some workon a sub-contract which they had with Techno-Export Foreign Trade Cor-poration, a firm engaged in construction of the Sugar Factory for theKantalai Sugar Corporation. Subsequently however the lorries werenot despatched to Kantalai ; instead the 1st accused directed the witnessto dispose of the lorries in accordance with different instructions givento him.,!
Here again the evidence gave some indications, however slight, thatthe 1st accused was interesting himself even in rather minor mattersconcerning the business of the Company.
The relevance of the evidence of the 1st accused’s interest in this Com-pany (if it sufficed to establish an interest) will be referred to later in thisjudgment. But it must be noted for the present that the learned trialJudge made it clear in the summing-up that the prosecution did not provethat the 1st accused was a shareholder in the Company or had madeany contribution towards its capital.
In about May 1958 there was formed a company known as The Asso-ciated Colombo Shipping Lines Limited, the directors of which includedthe brother of the 1st accused (Ur. K. K. U. Perera) and the 2nd accusedJayawardena, and another person who is the brother-in-law of Ur. Perera.In April 1950 the 2nd accused informed the then Minister of Finance,Mr. Stanley de Zoysa, of the proposal to float a company “ to operate aShipping Line for the purpose of lifting Government cargo ”. Heenquired from the Government whether the Ceylon Shipping Lines had amonopoly in respect of all Government cargoes, and if not whether theproposed new Company could compete for the transport of Governmentcargoes. This letter was apparently handed over personally to theMinister by the 2nd accused and a very favourable reply was also forthwithhanded back. After further correspondence the new Associated ColomboShipping Lines was invited by the Ueputy Secretary to the Treasury to
B ASNAYAJKJS, C.J.—The Queen v. Jhfapitigama Buddharakhita Thera 449
and 2 o there
make tenders for a rice lift from Burma to Ceylon. Accordingly a letterof 22nd May 1958 signed by the Chairman of the Company was sent to theMinister of Finance tendering for the carriage of 200,000 tons of rice fromBurma to Ceylon at the rate of 35 shillings per ton. The same letterconstituted a tender for the carriage of a similar quantity of rice for, aperiod of three years. There had apparently been a reply from theTreasury dated 28th June 1958 inquiring for particulars as to the Director-ship and management of the Company and as to the mode in which it isproposed to fulfil the tender if accepted. The letter sent in answer to thisinquiry concludes with the observation (as paraphrased) “ You willagree that our Firm’s offer was the most competitive rate quoted .**
The Company was informed by the Treasury on 27th August 1958 of apress communique (P170) issued by the deceased on 25th August 1958.In this communique the deceased stated—
“ In May 1958 it was felt that it was likely to be in the interests ofGovernment to enter into a long-term contract (for one year or forthree years) in respect of the carriage of rice to Ceylon from Chinaand from Burma.
In pursuance of this view the Deputy Secretary to the Treasuryasked for offers from these Shipping Dines : Ceylon Shipping Ljpes.Ltd., The Associated Colombo' Shipping Lines Ltd., The Eastern Star.Lines Ltd.
As these offers were received at the time the Hon. Minister of Financewas out of Ceylon on urgent Government business, at his request tome to deal with the matter, I opened the letters which contained theoffers, but I came to no final decision as certain further information
{! H –
was necessary and as I also wished to consult the Hon. Minister ofFinance who was due to return to Ceylon early. After his returnI went into this question further in consultation with him and alsowith the Hon. Ministers of Commerce and Trade, and Agricultureand Food.;
After very careful consideration and in view of the fact that mean-while a Commission had been appointed with wide terms of referenceto report on existing shipping lines in Ceylon including the desirabilityof nationalising shipping and also the fact that Government itselfmay be giving serious consideration early to the desirability ofnationalisation and purchase of ships, I have come to the conclusionthat, in all the circumstances of the case, it would not be desirableto enter into a long-term contract with any shipping line as originallycontemplated.
The practice that has obtained hitherto regarding the carriage ofGovernment freight will continue for the present.
If any shipping line which made offers has been put to inconvenience,
I express my regret for any such inconvenience and also for the delayin coming to a decision.”
450 BASNAYAJKE, C.J.—The Queen v. Mapitigama JBuddharalckita Thera
and 2 others
■ On 20th February 1959 the 2nd accused as Chairman of the AssociatedColombo Shipping Lines wrote to the Prime Minister requesting him to**• grant us the contract for our successful tender for the 200,000 tonsBurma rice lift for 1959 option, 1960 option, and 1961 option Thisrequest was not' granted.
From other evidence concerning the Associated Colombo ShippingLines it seems clear that the mode of operation proposed by the newCompany was such that it could not undertake the carriage of Governmentfreight except upon the basis of long-term contracts. The evidencesummarised above concerning the efforts of the new Company to securecontracts with the Government shows that the Company hoped to obtaina contract for three years the gross annual value of which would havebeen £200,000, that during its first contract with the Ministry of Financeit was given every expectation of success, and that after making itstender at the rate of 35 shillings per ton the Company thought that ithad indeed made the most acceptable tender. Some of the directorsof the Company made trips to England on two occasions with the objectof consulting the financiers in regard to the tender and the arrangementsfor carrying out its operations. From these matters it was open to thejury to infer that those interested in the formation and operation of theCompany must have been grievously disappointed at the decision takenby the deceased to maintain the status quo ante as regards the carriageof Government freight, in consequence of which the Company wouldbe unable to secure the desirable Government contracts.
In so far as the 1st accused was concerned there was first the circu mstance that his brother Dr. KL. K. U. Perera and his close associate the2nd accused were keenly concerned in the project. There was in additionproof that when two of the Directors of the Company made one of theirvisits to London their air passages were paid for by a cheque drawn bythe 1st accused. There being no evidence before the jury that thismoney was ever returned to him by the Company, the evidence wascertainly capable of the construction that the 1st accused personallypaid for those passages. Further there was in evidence his own admissionto the witness Kelanitillake that he had spent large sums of money inconnexion with the launching of the Associated Colombo ShippingLines.
Counsel on behalf of the 1st accused has questioned the relevance of theevidence concerning the alleged connexion of the 1st accused with bothconcerns which have been mentioned — The Metal & General (Ceylon)Trading Corporation and The Associated Colombo Shipping Lines — inwhich he held no shares. In this connexion there was the evidenceof the witness Kalugalla that the 1st accused had stated that with thisGovernment its supporters could not make money and that only theenemies of the party could make money. When the prosecution invitedthe jury to accept this particular item of evidence as true it was relevantfor the prosecution to adduce some examples of events likely to have
BASNAYAKE, C.J.—The Queen v. Jteapitigama Buddharakkita Them461
and 2 other&
created dissatisfaction in the mind of the 1st accused and therefore tohave induced him to make the reported remark. The evidence con*cerning the failure of the Metal & General (Ceylon) Trading Corporationin its sub-contract for the construction of the Kantalai Sugar Factoryin a slight degree, and the evidence concerning the Associated ColomboShipping Lines and their failure to obtain a contract for the rice lift andother Government cargoes were in the view of the Court matters whichwere relevantly brought to the notice of the jury in this connexion.
What has been stated as to the relevancy of this part of the evidenceupon the case of the 1st accused applies more strongly in the context ofthe case against the 2nd accused, for the evidence was to the effect thathe participated most actively in the affairs of both the Companies,
Considering that the murder which was the subject of the allegedconspiracy was that of the Prime Minister himself and that there wasat least a strong likelihood that the motive for the murder was politicaland not purely a private one, the evidence concerning the 1st accused’spolitical and business interests was relevant to show positively that hewas ambitious, if not for political power itself, at least to wield politicalinfluence. If this evidence did in fact create an impression that the 1staccused. was unworthy of the robe that was quite unavoidable. If inaddition there were some items of evidence not strictly relevant for thepurposes which have just been mentioned and which therefore onlytended to create such an impression, those items could not have exagger-ated the effect of that part of the evidence which was relevant to establishthe political and business interests of the 1st and 2nd accused to showthat they had a motive for conspiring to murder the deceased.
The next point that calls for attention is the complaint that the learnedcounsel for the Crown in his opening address made statements of factin support of which he placed no evidence before the jury. Section 232of the Criminal Procedure Code makes it obligatory for prosecutingcounsel to open his case by stating shortly the nature of the offencecharged and the evidence by which he proposes to prove the guilt of theaccused and thereafter examine his witnesses. Paragraph 4 of the noticeof appeal lists nine statements made by learned counsel for the Crownin support of which no evidence was tendered. Evidence has beentendered in respect of the ninth statement through the witness BradmanSilva. Of the remaining eight statements learned counsel emphasisedonly (i) and (iv) which reads—
" (i) That dissemination of scurrilous literature against the 1staccused in respect of which the deceased tpok no action althoughrequested to do so by the 1st accused originated ill-feeling betweenthe 1st accused and the deceased.
“ (iv) That the 1st accused telephoned Mr. K. C. Nadarajah’sbungalow about an astrologer Sunderam just after the shooting.”
452 BASNAYAKJE, C.J.—The Queen v. Mapitigama Buddharakkita Thera
and 2 others
These statements should not have been made if it was not intendedto establish them by evidence. No explanation has been offered as towhy they were made if it was not intended to lead evidence in supportof them. A reference to the indictment shows that Mrs. Nadarajah wasa witness whom the prosecution included in the list contained thereinas a witness whom the prosecution intended to call at the trial. Itremains now to consider whether the prejudice caused by those statementshas resulted in a miscarriage of justice. The trials in the instant casecommenced on 22nd February 1961 and ended on 12th May 1961. Thelearned trial Judge states that he himself was unable to recall thosestatements and directed the jury thus :
“ You should forget whatever was said by Mr. Chatty in his openingaddress that has not been followed up by the evidence. I do notthink that in this case that is a difficult task for you. I do not know,gentlemen, about your own powers of recollection, but if your powersof recollection are no better than mine, then you may think that youhave really retained very little of the opening address of Mr. Chittymade so long ago as the 22nd February this year, some two and halfmonths ago ; but if you do recall Mr. Chitty having opened thematters which Mr. Quass did say he had opened and where they havehot been followed upon by evidence led in the case, you must eradicatethem entirely from consideration in this case. Please bear that inmind gentlemen. **
It cannot be assumed that the jury do not retain in their minds whatthey, are expected to hear and remember. But what is the trial Judgeto do when at the end of a very long trial which has lasted nearly threemonths defence counsel takes the unfortunate course of bringing suchmatters to the notice of the jury. He has one of two courses to adopt,discharge the jury and order a new trial or proceed with the trial andgive the jury suitable directions. Having regard to the length of thistrial the Court is of opinion that the course taken by the learned Judgeis not wrong in the circumstances. This view is in accord with thattaken in the matter of Richard Albert Jacksoni.
The next ground is that the jury were directed to regard ascorroborative evidence which did not afford corroboration. Thelearned Judge divided the corroborative evidence into two parts anddrew their attention to the salient features of each part. He introducedhis examination of the corroborative evidence in these words—
“ The prosecution urges you that the evidence of Amarasingheand Newton Perera or, put it this way, the evidence of Amarasingheor. Newton Perera finds support in the evidence of two groups ofwitnesses. One such group the prosecution refers to or has beenreferred to in this case is the Amara Vihare group of witnesses. Theprosecution says that some little time immediately preceding this •
• 1 37 Cr. App. R. 43.
BASNAYAKE, C.J.—The Queen v. Mapitigama Buddharakkita. Thera 463
and 2 others
murder, the 4th accused, who according to the evidence of theprosecution is the person who shot, was in earnest, secret, prolongedconversation with two of the accused in this case, and the prosecutionurges that the evidence is of such a nature that it tends to supportAmarfl,ainghft or Newton Perera, as the case may be, that there wasan agreement to murder Mr. Bandaranaike. When I say that I mustremind you that neither Amarasinghe nor Newton Perera in expresswords says that there was a conspiracy to murder. In fact NewtonPerera’s evidence is that he was completely ignorant of any conspiracyto murder. The prosecution submits that the, effect of the evidenceof those two witnesses is that there was such an agreement. Theprosecution urges that the evidence of the Amara Vihare group ofwitnesses tends to show that the evidence of Newton Perera orAmarasinghe is true.
" The other group of witnesses are witnesses who speak to theconduct of one or more of these accused after the incident. Nowwe are dealing with the case of the 1st accused, and the evidence hereis the conduct of the 1st accused after the shooting, and the prosecutionsays that his conduct is such that it tends to show that the 1staccused was in agreement to kill Mr. Bandaranaike.
“ Let us, with those remarks, shortly consider what the evidenceof the Amara Vihare group of witnesses is. ”
The learned Judge then went on to consider the evidence of that groupof witnesses (pp. 3292—3310) and discussed it in detail. The discussionoccupies nearly seventeen pages of the typescript and briefly theirevidence (except that of Mendis and Charles) is as follows :—Those whofall into that group are Somaratne, Lewis, Sirisena, Mendis Appu,Charles Appuhamy, David, and Mrs. Wijelatha ILuruwita. The learnedtrial Judge directed the jury that they should not act upon the evidenceof Mendis Appu and Charles Appuhamy because of the many contra-dictions in their evidence. Of the others Somaratne’s evidence is tothe effect that, in September before the 24th, the 4th accused went outearly in the morning at about 6 in a big “ cream ” or “ milk ”coloured car driven by a fair, fat, grey-haired driver with hair closelycropped on about eight occasions and returned between 6 and 9 p.m.That on one or two of those occasions the 1st accused travelled in thesame car. Lewis, an employee in the circulation department of LakeHouse, said that on 19th August the day of the fast of Boosa Amarasiri,the incumbent of Amara Vihare, the 1st and 2nd accused came to thetemple at about 7 p.m. in a “ white-coloured ” Opel Kapitan car drivenby the latter. The 1st accused went in and came back to the car withthe 4th accused, carrying on a conversation 'with him. The twoaccused came again a week later at about 2 p.m. in the samecar driven by the 2nd accused, stopped the car in the same place,i.e., near the gate of Amara Vihare. The 2nd accused went intothe temple and in about five minutes came back with the 4th
2**R 16S3 (3/62;
454 BASlfAVAKR, C.J.—The Queen v. Mapitigama Buddharakkita Thera
and Z others
accused and all three of them left in the car. The two accusedcame a third time in early September at about 8 p.m. in a“ black-coloured ” car driven by the 2nd accused and stopped in adifferent place where there was no light. The 2nd accused went insidethe Amara Vihare and returned with the 4th accused. A week laterthe two accused came again in the “ white-coloured ” Opel Kapitanat about 7 p.m., stopped where it stopped on the third occasion, the2nd accused went into the Vihare, and returned with the 4th accused.They came a fifth time about a week prior to 25th September in a “ whitecoloured ” Opel Kapitan at about 7 p.m. and stopped in the same placeas on the third and fourth occasions, the 2nd accused went into theVihare and returned with 4th accused. The witness Sirisena the tailorsays that he saw the 1st accused come to the Amara Vihare in earlySeptember at about 6.30 p.m. in a “milk-coloured” big car drivenby a fair elderly driver with slightly grey hair. The driver who waswearing a white shirt and sarong went to the Vihare and returned withthe 4th accused who entered the car and they drove off. A few dayslater the same car came again about 6 p.m. driven by the same driverand stopped at the same place ; the driver went to the Vihare. Hewent for a cup of tea to the opposite boutique and the car had left whenhe returned. On 24th September at about 7 p.m. the 1st and 2ndaccused came in a large “ black car ” driven by the 2nd accused, bothalighted from it and went in the direction of Amara Vihare. They cameback saying “The priest is not in” and drove off. Wijelatha says thaton 23rd September at about 7.30 p.m. she saw a “ milk-coloured ” carhalted near Amara Vihare and she noticed the 1st and 4th accused inthe rear seat and near it a man was walking up and down. Again on24th September at about 8.30 p.m. she saw the same car stopped beyondthe point at which it was stopped earlier. She did not see who was init. David, the dispenser at the Ayurvedic College, says that on 24thSeptember on his way from his mother’s house about 8.30 p.m. nearAmara Vihare he saw the 1st and 4th accused engaged in conversation,the 1st in a “ white-coloured ” Opel car and the 4th standing on theroad by it.
Learned counsel brought to light certain material discrepancies betweentheir evidence in the lower Court and their evidence at the trial. Thejury were told by the learned Judge how they should approach theevidence of three of them—Mendis, Charles and David—and he gavethe following general direction :—
“ Well, gentlemen, there are a whole lot of contradictions whichwere brought out in the evidence of this witness. I do not think Ineed detail all that to you, but I think I should tell you how toapproach evidence of contradictions of a witness. You, gentlemen ofthe jury, have to judge a witness’s evidence, as to whether it is accept-able or not, by what he says here ; but what he has said earlier atsome other place like the Magistrate’s Court or at a police inquiry isrelevant, gentlemen, in considering the truth of what he says here.”
BA&NAYAKE, C.J.—The Queen v. Mapitigama Buddharakkita Thera 455
and 2 others
He concluded that discussion thus—
“ Well, gentlemen, that, I think, is a fair summary, but not' inany way exhaustive, of the evidence of Amara Vihare group of witnesses.The prosecution relies on that as affording some corroboration ofsome of the evidence of Amarasinghe and Newton Perera that therewas an agreement or conspiracy in which the object was the killingof the Prime Minister.”
He then proceeded to consider the other group of witnesses he hadreferred to earlier as giving evidence corroborative of the alleged accom-plices. He opened the discussion of that evidence in these words—
“ Let me, gentlemen, go on to the other evidence which the prosecu-tion says comes from an independent source, that is from an un-tainted soure, which corroborates or supports the prosecution allegationthat there was a conspiracy, that is the conduct of the 1st accused.Now, right throughout today I am dealing with nobody’s case but the1st accused’s case. If I have referred to the others, it is incidental.You must find independent evidence from somebody other thanNewton Perera or Amarasinghe.”
Having made the above statement before referring to Kelanitillake’sevidence he proceeded to describe Amarasinghe’s reactions on receivingthe information that the Prime Minister had been shot and the reactionof Newton Perera and the way in which Amarasinghe had dealt with atelephone call from the 1st accused. The learned Judge referred toKelanitillake’s evidence of his conversation with the 1st accused at theKelaniya Vihare after the shooting on the afternoon and evening of theday of the shooting and the day following. He also referred to whatKelanitiliake said he observed in the behaviour of the 1st and 2nd accusedand others and his own reactions to what he saw. Referring to Kelani-tillake’s evidence that the 1st accused after receiving a telephonemessage said—■
“ The Cabinet has just decided to direct the police to inquire aboutSomarama’s connexion with the Board of Indigenous medicine.”
the learned Judge observed—
“ If there was this telephone message and it had been correctlyreported by the first accused to Kelanitiliake, as men of the worldyou will ask yourselves the question * Who could have told him whathappened at the Cabinet Meeting ? ’* Who thought it so important
that what happened at the Cabinet Meeting should be conveyed to theKelaniya temple immediately ? *.”
The learned Judge then proceeded to refer to the following items ofevidence concerning the conduct of the 1st accused relied upon by theprosecution as corroborative :—
His saying “No,this kalakanniya had gone to band over a petitionand he had been shot. I cannot even see him in hospital. I am
456BASNAYAKE, C.J.—The Queen v. Mapitigama BuddharakJcita Thera
and 2 others
thinking about that.” in response to Kelanitillake’s statementthat the rumour was that Somarama had shot the PrimeMinister.
His silence when Kelanitillake thrust a newspaper in front of him
when the 1st accused talked of a petition and expressed hisdoubts that the 4th accused would do such a thing.
The excited state of the 1st accused when Dickie de Zoysa and
two others came and went inside the quarters of the 1st accused.
His saying to Kelanitillake in the evening of the day after the
shooting “ No man, X do not think that fellow would do a thinglike that ” in answer to Kelanitill ake’s statement, “ No doubt;it is Somarama who has shot.”
His saying after he had got ready to go out on receiving a telephone
call on 26th September, “ The Cabinet has just decided todirect the police to inquire about Somarama’s connexion withthe Board of Indigenous Medicine.”
His saying, “ Yes, they might come ; be careful of what you say ”,
in answer to Kelanitillake’s inquiry whether he himself mightbe questioned on the matter because he was also a member ofthe Hospital Board (Kelanitillake).
His saying on the 28th September to Kelanitillake whom he had
sent for “ Look here, this Nondiar is trying to implicate mesaying that I have got the Prime Minister murdered ”, andadding “ I will break that fellow’s legs and have him depositedin the Kelaniya river.” (Kelanitillake 3328).
S. His inquiring from the 3rd accused whether the police had come insearch of him and telling him “ Why don’t you shave off thatmoustache of yours and get into national dress ”, and takinghim to his quarters and saying “ You know.”
The absence of the 1st accused from Kelaniya temple from 8.30 p.m.till 10 p.m. on 24th September.
The fact that the deceased said no less than four times “ He is a
foolish man. I do not know why he shot me.” (3339) was anindication of a conspiracy.
The absence of the 1st and 2nd accused from Colombo and their
failure to come to Mrs. Wimala Wijewardene’s house (3347) onthe night of the 25tb September. 12
12.The fact that the 1st accused when in the dock had his hand on
his hip and a handkerchief in the other hand or in the samehand (3350).
BASNATAKE, C. J.—The Queen v. MapUigama Buddharakkita Thera467
and 2 others
The learned ferial Judge said at the outset of his survey of the corro-borative evidence that it fell into two groups—the Amara Vihare group,and the evidence regarding the conduct of the 1st accused after theshooting. Concluding his survey of the corroborative evidence he said—
** That corroboration, I repeat, the prosecution claims is to be foundin (a) the visits which it claims to have proved as having been madeby the first and second accused frequently to the fourth accusedduring the period immediately before the shooting, and (6) the con-duct of the first accused after the hour of the shooting and right upto the time he was charged in Court.**
Learned counsel for the 1st accused contended that none of the 12items set out above were corroborative. His submission though notapplicable to all the items is applicable to the following :—
The 1st accused’s statement that he would break R. G. Senanayake’s
legs and have him deposited in the Kelani river.
The 1st accused’s statement that the Cabinet had decided to
direct the police to inquire about Somarama’s connexion withthe Board of Indigenous Medicine.
The fact that the deceased said, “ He is a foolish man. I do not
know why he shot me ’*.
{d) The absence of the 1st and 2nd accused from Colombo and theirfailure to go to Mrs. Wijewardene’s on 25th September.
The attitude adopted by the 1st accused when standing in thedock.
There was also complaint that the learned Judge, in the course ofmentioning to the jury the several items of evidence upon which theprosecution relied as being corroborative, also referred to parts of theevidence of the alleged accomplice Amarasinghe as to statements andconduct of the 1st accused— 1 2 3
1.His telephoning Amarasinghe about noon of the day of the shooting
and saying " Don’t get frightened about anything. Don’tdisclose to anyone.” (Amarasinghe 3312).
2.His visit to Amarasinghe at 4.30 p.m. on 27th September and his
saying, “ Vedamahatmaya, why are you looking as if you weredead ? Do not fear anything. I will see to everything. Don’tworry. I am just coming here from Radio Ceylon where I havedelivered a broadcast message.’* (Amarasinghe 3327).
3.His saying on 12th October to Amarasinghe who was brought to
the Kelaniya Vihare by Graham, ** Vedamahattaya, don’t fearanything. Everything that needs to be done has been done.
If necessary, I will appeal even to the Privy Council.** (Amara-singhe 3331).
458
BASNAYAKE, C.J.—The Queen v. Mapitigama Buddharakkita Thera
and 2 others
TTia saying to the 2nd accused on 14th October in the hearing of
Amarasinghe as they were about to enter a police car after theyhad been arrested, “ Jaye, I did not think we would travel in athing like this.” (Amarasinghe 3332).
His saying to the 2nd accused while in the remand cells in the
hearing of Amarasinghe who was in the cell between that of the1st and that of the 2nd accused, “ Jaye, don’t know whatAnura will say ” or “ don’t know whether Anura will say.”(Amarasinghe 3333).
His asking Amarasinghe after he had made a statement to the
Magistrate Mr. Udalagama, “ Please withdraw that statement.If you do that, I will see that counsel is retained for you(Amarasinghe 3333).
It appears that the learned Judge made these references at that stageonly with the intention of pointing to parts of the alleged, accomplice’sevidence, the general purport of which was similar to one or other ofthe items of evidence contributed by some other witness, as well (to usehis own expression) as to mention in the form of a cc narrative ”, in theorder of their alleged occurrence, the facts deposed to by the severalwitnesses, including the alleged accomplice. While this was a somewhatunsafe mode of placing before the jury the case for the prosecution asto the various items of evidence claimed to be corroborative, the sub-mission that) the jury were for this reason misled into treating any ofthe alleged accomplice’s evidence as being corroborative of himselfis not acceptable; they were duly warned, and on more than one occasion,that they must look for independent testimony from somebody otherthan the alleged accomplice.
It will be convenient to deal with grounds (d) and (e) together asthey are connected grounds. Learned counsel submitted that anyitem of evidence which is capable of an innocent meaning cannot be usedas corroboration, and that the addition of any number of such itemsof evidence does not produce a positive result. He submitted thatzero added to zero was also zero. Support for this submission is to befound in the following decisions :—Thomas v. Jones1 ; Finch v. Finch 3;and Dowse v. Attorney-General, Federation of Malaya 3. It is sufficientto cite from the dicta in the case of Thomas v. Jones {supra). Bankes L.J.referred to the matter thus-—
But I think that assistance in this case can be derived by consideringwhat is not and cannot properly be regarded as corroborative evidence.First of all, statements which are equally consistent with the storyof the appellant as with the story of the respondent cannot properly
1 (1921) 1 K. B. 22.* (1882-3) 23 Oh. D. 267 at 277.
8 (Privy Council) (1961) 27 Malayan Late Journal p. 249.
BASXAYAKJE, C.J.—The Queen v. Mapitigama Buddharakkita Thera469
and 2 others
be accepted as corroborative evidence- It is equally clear thatevidence which obviously falls short of corroboration in a materialparticular cannot be accepted as corroborative evidence. **
Atkin L.J. in laying down^the same rule said—
“ There was a suggestion in the Court below that, although eachone of these facts in itself was insufficient, yet the accumulation ofthem might make them sufficient. If all that is meant by that isthe explanation given by my Lord, one can accept it. It may bethat light may be thrown upon something, which in itself is innocentand irrelevant, by some other circumstance which though notitself conclusive may yet be illuminating. But, apart from that, itappears to me impossible, when dealing with the question of corrobo-ration, that the accumulation of pieces of evidence, each of whichby itself is not admissible as corroborative evidence, can amount inthe whole to corroboration. Ex nihilo nihil fit. That appears tome to be different from circumstantial evidence, where evidence ofindependent facts, each in itself insufficient to prove the main fact,may yet, either by their cumulative weight or still more by theirconnection one with the other as links in a chain, prove the principalfact to be established. ”
In the instant case there was no question of the jury being invitedto add zero to zero in a search for corroboration of the evidence of eitherthe alleged accomplice or the co-accused. According to the witnessBradman Silva the 1st accused had around December 1958 said to someother monks that the deceased must be killed, and that, by a Buddhistmonk. According to Kelanitillake, he had at a later stage referredto the deceased in language the foulness of wiiich is not reflected in itsEnglish translation and which could not conceivably have been usedby an educated monk unless he entertained intense hatred for thedeceased. The probable causes of this hatred, and the 1st accused’sintention to oppose the deceased politically, were explained in otherstatements of his which have already been mentioned. In the lightof these utterances, the proved fact that the deceased was lolled, withoutany appearance of a personal motive by a close associate of the 1staccused, the two of them having been in contact with each other onnumerous occasions immediately prior to the murder, could not havefailed to assume a grave significance in the minds of the members of thejury. If they believed the evidence of the meetings by the side of theroad after night-fall on September 23rd and 24th, the conclusion thatthe mission which the 4th accused ultimately carried out on the 25thhad been the subject of their conversations would have been irresistible,particularly in the absence of any explanation from the 1st accused..
The next point that calls for discussion is the one relating to the mis-direction on the subject of the crime revolver. It was submitted thatthe learned Judge did not invite the jury to decide whether PI was
460 BASNAYAKE, O.J.—The Queen v. Mapitigama Buddharakkita Thera
and 2 others
tbe revolver given by Newton Perera to the 1st accused. Learnedcounsel drew our attention in particular to the words, “ The first accusedgets connected to the revolver PI or to a *45 revolver, only throughthe evidence of the 6th accused ”. These words are better examinedin their full context. The learned Judge said—
“ Now, gentlemen, I have not referred to the witness Ossie Coreaat all. At the stage at which Ossie Corea left the witness-box, althoughhe may have proved to be an interesting witness, if that be the correctexpression, his evidence did not touch the first accused at all. Allhe said was that the fifth accused asked him for a revolver and hegave him a *45 revolver. He gave a *45 revolver to the fifth accused.The first accused gets connected to the revolver, to this revolver PIor to a *45 revolver, only through the evidence of the fifth accused.
“ Now, gentlemen, you may wonder why, in regard to the identityof the revolver, which has been challenged on behalf of the first andsecond accused and I believe on behalf of the fourth accused also,Ossie Corea should have identified this revolver at all if in fact it wasnot his revolver. I take it, gentlemen, that by the time Ossie Coreawas taken to the Government Analyst’s Office he would have hada shrewd suspicion at least that it was Mr. -Bandaranaike’s deaththat was the subject of the investigation. Then when there weresome six or seven revolvers placed before him would it not have beensimplicity itself to say, ‘ Well, my revolver is not there ’. But hechose to handle two revolvers which he put aside ; then he took athird into his hands and said, * This is mine ’. He claimed to identifyit as his by the pitting in the barrel and the shaking of the cylinder.It is in evidence that those are common to any old revolver, but Mr.Chitty has told you that a person who owns a thing and who has hadit for sometime can, without any particular distinguishing marks,with some confidence say whether the article belongs to him or not.
“ You will bear in mind all the arguments of counsel which relateto this revolver. Now, gentlemen, this is a *455 revolver. Thereis no doubt about that, but it is Mr. Sirimanne’s evidence, that isthe Ballistic Expert’s evidence, that it is not possible to say by lookingat a *450 and *455 revolver which is which. Newton Perera saysthat this revolver produced here is the revolver which Ossie Coreagave him. Newton Perera said that he would describe this revolveras a *45 revolver. Lionel Gunatillake said that he would describeit as a *45 revolver. Sydney Zoysa said that he would describe itas a *45 revolver. The bullets proved to be the bullets which hadentered the body of Mr. Bandaranaike or which were found in thehouse that day were both *455 and *45 bullets. That is, some were*455 bullets and some were *45. Mr. Sirimanne has given some evidencewhich lias been analysed before you by Mr. Chitty in great detail ina manner which I cannot hope to better. Mr. Sirimanne said in
BASNAYAKE, C.J.—The Queen v. Mapitigama BuddharakJcita Thera461
and 2 others
evidence that the putting into the cylinder, into the chamber, of smallercartridges than was originally intended for the revolver may produceover a long time of such use a condition in which the actual cartridge,that is the correct size of cartridge, may find it difficult to enter. Mr.Sirimanne said that if the chamber is not properly cleaned from timeto time rust can collect and the introduction of the right kindof cartridge may be fraught with difficulty. He said that rust is notthe only thing that can bring this about; dirt can bring this aboutas well. Mr. Chitty has addressed you on those points and I don’tthink I need attempt to go over that ground onc6 again. ”
Learned counsel also drew our attention to two erroneous statementson questions of fact occurring in the charge on this point. They are—
** (a) Newton Perera says that this revolver produced here is therevolver which Ossie Corea gave him.
“ (6) The bullets proved to be the bullets which had entered the bodyof Mr. Bandaranaike or which were found in the house thatday were both 455 and 45 bullets. That is some were '455bullets and some were '45 bullets. ”
The evidence is that only -455 bullets were found, one in the body ofthe deceased, three in the house, but there were two empty -450 shellsin the chamber of the revolver. Newton Perera did not state thatOssie Corea gave him the revolver produced but he gave him a revolversimilar to Pi. His evidence is as follows :—
" 26438
Q.What was the type of revolver that Ossie Corea gaveyou on that day ?
A. It was a *45 revolver.
26439 Q.A.
(Shown PI). Was it similar to Pi ?Yes, it was similar to PI. ”
Statement at (a) appears to be a slip because the learned Judge hadearlier said—
Newton Perera said that it was a revolver like the revolver Piwhich has been proved to be the revolver that killed Mr. Bandaranaike,that he gave over to the first accused. ”(3273).
Again later on in his summing-up he made the same slip when hesaid—
“ Newton said that he identified that revolver as the revolverwhich he had earlier obtained from Ossie Corea and given over toBuddharakkita. ”(3503).
462 BASNAYAKE, C.J.—The Queen v. Mapitigama Bvddharakkita Thera
and 2 others
The statement at (b) was perhaps influenced by the presence of twospent • 450 shells in the revolver.
Ossie Corea’s examination-in-chief (Qs. 18305—18581) proceeds onthe footing that PI was his revolver ; but he never resiled from hisposition that his revolver was a *450. In support of it he stated thatwhen he tried to use a *455 bullet it did not go in because it was largerthan a *450. Even in cross-examination he maintained that PI washis revolver as would appear from the following :—
“ 18574 Q. You don’t know the calibre of the gun which youpicked up before you picked up PI? You do notknow what the calibre of the other guns were ?
A. No.
Q. If this is a *455 revolver, then it cannot be the gunwhich you say you handed to Newton Perera ?
A. This is a *450 revolver.
Q. If this revolver is a *455 one—you say that this is therevolver that you handed over to Newton Perera—then it cannot be the revolver that you handed overto him ?
A. It can be similar to my gun.
Q.. Yours was a *450 gun ?
A. I have said that it was a *450 gun that I gave NewtonPerera.
Q. If this is a ■ 455^gun,
by you ?
A. (No answer).
Q. If this is a *455 gun,
you handed over to
A. Mine is a *450 gun.
Q. If this is a *455 gun.
you gave him ?
then it cannot be the gun used
then it cannot^be the gun whichNewton Perera ?
then it cannot be the gun that
A.
This is a *450 gun and mine is a *450 gun.
BASNAYAKE, C.J.—The Queen v. Mapitigama Bu&dharakkita Thera 463
and 2 others
18581 Q. If this be a *455 gun, then this cannot be yours, canit be ?
A. No. ”
It would have been better if the trial Judge had quite precisely stated,at the time he discussed the identity of PI, that the identity of therevolver was a matter the jury had to decide and if they had any doubtit should be resolved in favour of the accused.
At the same time, it is unthinkable that counsel for the 1st and 2ndaccused would not have in their addresses forcefully argued that OssieCorea’s revolver, which according to the evidence of Corea was a *450,had not been proved to be identical with the orime revolver PI, or thatthe jury would not in any event have been fully alive to the difficultycreated by Corea’s evidence on this point. The learned Judge’s referenceto Mr. Sirimanne’s explanation as to the probable reason why *455cartridges may at times not fit easily into the chamber of a *455 revolverwas without meaning, save as a reference to the prosecution’s answerto the doubts as to the identity of PI. He should undoubtedly in thesumming-up have prefaced the reference to Sirimanne’s evidence by astatement of the defence position that PI could not have been Corea’srevolver, because Corea had claimed his to be a *450 and not a *455. Butthere is no reason to think that despite his omission to do so, the jurywere not in possession of the defence position on this point.
The complaint that the trial Judge in his summing-up laid too muchemphasis on the arguments of counsel for the prosecution and gavetoo little attention to the submissions of counsel for the defence hassome justification. It cannot be said, however, that in this case thatirregularity has occasioned a miscarriage of justice.
The complaint that far too many leading questions were put to thewitnesses on aspects of the case in which they should not have been ledis not without justification. The transcript shows that the defencecounsel did on some occasions object to the manner in which witnesseswere being asked leading questions on crucial matters. Wheneverobjection was taken the particular question was recast, but counsellapsed thereafter into the same irregular practice. The fact that section142 of the Evidence Ordinance provides that leading questions mustnot, if objected to by the adverse party, be asked in examination-in-chiefor in re-examination, except with the permission of the Court cannotbe regarded as authorising the prosecution to lead its witnesses on crucialmatters. It is difficult for the trial Judge or the defence counsel to keepa close watch on every question asked by counsel especially in a longtrial. The greater is the duty therefore of the prosecution to be carefulnot to put leading questions on important matters and thereby impairthe value of the answers so given. It cannot be gainsaid that leadingquestions deprive the answers given to them of their cogency and value.
464 BASNAYAKE, C.J.—The Queen v. Mapitigama Buddharakkita Thera
and 2 others
The next ground is one of some importance and was argued by learnedcounsel at some length. The 5th accused gave evidence in his behalfas he was entitled to do ; but in doing so involved the 1st, 2nd and4th accused. His evidence occupies 444 pages of the transcript. Ofthat the cross-examination by the Crown takes up 181 pages. Theaccused showed so great an inclination to involve his co-accused thatthe trial Judge at one stage asked his counsel the question—
** Are you prosecuting in this case or defending the fifth accused ? ”He also observed further—
“ Why are you worried about questions to show that the first accusedis not what he appears to be. ”
and added at another stage of the examination-in-chief :
“ I do not think I can allow the line of questioning which you wereabout to pursue. I am not saying that I have made up my mindon this matter, that in all circumstances I will not allow suchquestions to be put; but having regard to the context of things, Icannot allow questions which are indicative of what the witness feltwas the standard of behaviour of the first accused. ”
Under this head learned counsel submitted that the evidence of the5th accused was not admissible against the 1st accused, and that thejury should have been directed not to regard it as evidence againsthim. He relied on section 120 (6) of the Evidence Ordinance whichreads—
“ In criminal trials the accused shall be a competent witness inhis own behalf, and may give evidence in the same manner and withthe like effect and consequences as any other witness, provided thatso far as the cross-examination relates to the credit of the accused, thecourt may limit the cross-examination to such extent as it thinksproper, although the proposed cross-examination might be permissiblein the case of any other witness. ”
The provision is intended to enable an accused person to give evidencein his own behalf, viz., for himself. There would be no difficulty ina case where a single accused is tried ; but a difficulty arises where, asin the instant case, several accused are tried together and one of themgives evidence in his own behalf and in doing so implicates the otheraccused. In considering this question it is well to bear in mind thatthere are two aspects to it. One is where an accused while givingevidence in his own behalf incidentally says something which inculpatesa co-prisoner with no intention of using his right to give evidence inhis own behalf for the purpose of giving away his co-prisoners ; the otheris where an accused person abuses his right of giving evidence in his
BASNAYAKJB, C.J.—The Queen v. Ma pi tig a ma Buddharakfcita Thera 465
and 2 others
own behalf by making use of the opportunity to shift the entire burdenon his co-prisoners by inculpating them and exculpating himself. Inthe ordinary case it may be difficult to distinguish one from the other ;but in the instant case the defence submission has been that the 5thaccused who exercised his right of giving evidence in his own behalfwent out of his way to implicate his co-accused and became for all intentsand purposes a Crown witness against the 1st and 2nd accused. Thiscriticism has not much validity in regard to the evidence-in-chief of the5th accused. In the face of Corea's evidence he might well have beenconvicted unless he succeeded in satisfying the jury that the revolvergiven to him by Corea had passed from his possession without knowledgeon bis part that it would be used for the commission of this particularcrime. His implication of the three other accused was an integral partof the explanation of his own conduct which he furnished in his evidence.In regard to cross-examination, however, the fact that prosecutingcounsel seized the opportunity to bring out many matters quite unfavour-able to the 1st accused during the cross-examination of the 5th accusedis to be much deprecated. Hut not much blame can attach to the 5thaccused himself for answering the numerous questions which were putto him in the course of the cross-examination.
Learned counsel drew our attention to the fact that the cross-examina-tion by the Crown was characterised by an unsually large number ofleading questions of a character prohibited by section 143 of the EvidenceOrdinance, where the question put into the mouth of the witness the.very words which he was to echo back. Learned counsel in the course ofhis reading of the evidence paused to draw our attention to the moreglaring of such instances. Even they are too many to bear reproductionin this judgment.
Although a co-accused who gives evidence in his own behalf does notstand in the same position as an accomplice where the evidence by whichhe seeks to exculpate himself is concerned, his evidence, in so far as itincidentally inculpates the other accused standing their trial along withhim, must be treated in the same way*-as the evidence of an accomplicebecause there is always the danger of his seeking to exculpate himselfand shift the blame on to the others and the jury should, as the learnedJudge has rightly done in the instant case, be warned of the danger ofbasing a conviction on the evidence of a co-accused unless it is corro-borated in material particulars. But learned counsel for the 1st accusedgoes much further ; he submits that in so far as our law is concernedthe evidence of a co-accused which inculpates an accused standing his
466 B AS N"AYAKE, C.J.—The Queen, v. Mapitigama Buddharakkita Thera
and 2 others
trial along with him. should be disregarded and treated in the same wayas a confession of a co-accused which affects other accused. Where aconfession made by an accused jointly tried with others is proved,section 30 of the Evidence Ordinance provides that the Court shallnot take into consideration such confession as against the others. Thisis how the section reads—
“ Where more persons than one are being tried jointly for the sameoffence, and a confession made by one of such persons affeetinghimself and some other of such persons is proved, the court shallnot take into consideration such confession as against such otherperson. ”
Learned counsel submitted that this section applies even to confessionsmade in the witness-box by a co-accused giving evidence in his behalf.It is difficult to find support for the contention of learned counsel inthe language of the section. The words “ and a confession made byone of such persons is proved ** can hardly be said to apply to evidencegiven by an accused in his own behalf. Though he may admit thecommission of the offence in the course of his evidence it would beinappropriate to regard such evidence as “ proving ” a confession. Theevidence by which a person owns his crime is the confession itself andhe confesses in Court. The words “ a confession …. is proved "are designed to meet the case of extra-judicial confessions which areadmissible in evidence and do not include evidence by which an accusedperson inculpates himself and others in the witness-box. Learnedcounsel submitted that Rex v. Ukku Banda1 did not apply to theinstant case and that, if it did, it was wrongly decided. That caseis a decision of five Judges of the Supreme Court upon a reference madeunder section 355 of the Criminal Procedure Code and section 54a ofthe Courts Ordinance.
The full Court in Ukku Banda's case (supra) decided that the properdirection to be given to the jury in a case where a co-accused gives evidenceinculpating an accused jointly tried with him was “ that while theyshould be very careful in acting upon such evidence, in view of thetemptation which always assails a prisoner to exculpate himself byinculpating another, yet, that subject to that warning, they must weighand consider evidence so given against another prisoner. ”
As has been pointed out in Ukku, Banda's case (supra) our law is notwidely different from the English law after the passing of the Criminal
1 (1923) 24 N. L. R. 327.
BASNAYAKJS, C.J.—The Queen v. Mapitigama BuddharakJcita Thera 467
and 2 others
Evidence Act 1898. In the case of Hadween1, which is cited in DkfcitBanda's case (supra) as being a case which gave the full bench someoccasion for thought, the question for decision was whether where twopersons are jointly indicted for an offence and one elects to give evidencehe may be cross-examined on behalf of his co-defendant because in somecases the Judge’s direction to the jury to disregard such evidence wouldnot be an effective protection, and because counsel for a co-prisonerwould be better instructed and feel it fitting to cross-examine morestrictly than prosecuting counsel. Lord Alverstone’s judgment withwhich four of the Judges concurred proceeds on the assumption that theevidence of a co-accused which inculpates another should be disregardedwhere it affects the co-accused. Wright J., while expressing the viewthat, except section I (/) (iii), the Criminal Evidence Act 1898 containsnothing that tends to abrogate the ordinary rule that what one defendantsays should not be admissible as evidence against another defendant,founded on the obvious temptation to one co-defendant to endeavour toshift the blame on to his co-defendant, said, “ If this rule is abrogated,I agree with the judgment of my Lord In Rex v. Paul 2 the point fordecision was whether the Crown was entitled to cross-examine a co-accused who goes into the witness-box, even if his evidence in chief ismerely “ I plead guilty ”, with a view to incriminate a person chargedjointly with him, and it was held that the Crown was. But, in the latercase of James Richards 3, where the main question for decision waswhether there should have been separate trials, after explaining thedecision in Bywaters 4 as holding that where it appears that the essentialpart, or an essential part, of one prisoner’s defence is, or amounts to, anattack upon another prisoner, then a separate trial should take place,Lord He wart observed—
i£ They were not called as witnesses for the prosecution. Theywent into the witness-box to give evidence, and they gave evidence,on their own behalf, and the rule with regard to corroboration ofaccomplices does not seem to apply to such a case.”
After having quoted a passage from the Baslcerville case on the rule ofpractice as to corroborative evidence he proceeded—
“In no respect is it true to say that the evidence, which is referredto in this part of the notice of appeal, was evidence called by theprosecution nor was the jury being asked by the prosecution to actupon the evidence given by either of those two women. One looks invain for any case in which it has been decided that, where prisonersare tried together on the charge of being jointly concerned in thecommission of a crime and they elect to give evidence, and in so doing
8 (1940) 27 Cr. App. R. 154.
* 17 Cr. App. E. 66.
1 20 Cox's Criminal Cases 206 (1902).* (1920) 14 Cr. App. R. 155.
468 BASNAYAKE, C.J.—The Queen v. Mapitigama Buddharakkita Thera
and 2 others
one of them happens incidentally to give a piece of evidence whichtells against another of the persons accused, it is requisite that thewarning with regard to the evidence of accomplices should be given.”
These words presuppose a case in which the evidence against the otheraccused is incidental and on which the prosecution does not rely, for, thejudgment goes on to say—
“ In the opinion of this Court, on the facts of this case, and uponthe evidence in this case, the necessity for a warning with regard tothe evidence of accomplices did not arise. Even if it had arisen, it ismanifest that there was ample and cogent evidence which made itclear what the verdict ought to be. There was ample evidence, apartfrom that evidence which is said wrongly, as it appears to us to haverequired corroboration.”
It would appear from the report of this case in (1940) 2 AU E. R. 229 thatat the trial Singleton J. directed the jury that the evidence of eachco-prisoner should be regarded in so far as it affects him and not theothers. His summing-up was characterized as “ careful, systematic andfull The L.C.J. added “ in our opinion there is no ground for thecontention that in any of the respects referred to in the grounds of appealthe summing-up was defective ”.
In the case of Meredith and two others 1 a case in which co-accusedhad given evidence affecting others the trial Judge summed-up asfollows :—
“ These men all made statements, and it is impossible for you tolisten to all those statements and not to realise that they are statementswhich may implicate some persons other than the men making them.You will do your best, members of the jury, to remember that thosestatements are only evidence against the persons who make them. Iwill go further than that. When the individual making a statement ofthat sort comes into the witness-box and gives evidence on oath, it isa different situation. What he says then does become evidenceagainst the other person, but I endeavour in this class of case whenthere are a number of prisoners in the dock always to warn juries thatso far as possible they should not use any evidence given by a personwho is accused when he is in the witness-box against anyone of hisco-defendants. So far as his evidence is concerned, use it for thepurpose of seeing whether he gives you an explanation which may be
i
1 20 Cr. App. R. 40.
BASNAYAKE, C.J.—The Queen v. Mapitigama Buddharakkita Thera469
and 2 others
true or an explanation, which leads you to disbelieve him and thereforeto convict him, but try as far as possible not to use any oneprisoner’s evidence as evidence against one of his colleagues.”
Caldecote Lord Chief Justice who presided over the Court of CriminalAppeal described this summing-up thus—
“In our Judgment, that was a proper direction and one that wasfair to each of the appellants.”
The case of Garland which appears as a note 'to Meredith in 29 Gr.App. R. at 46 cannot be taken as giving a decisive unqualified opinion onthe point because the judgment proceeds—
“ Is the other evidence in this case, apart from that of the womanco-defendant of the appellant, clear and convincing to such an extent•that this Court is satisfied that no miscarriage of justice has arisen byreason of the omission of the direction to the jury.”
’ and after a review of the evidence concludes—
“ The evidence of corroboration was clear and convincing. We aresatisfied that if there had been direction to the jury on the subject ofaceomplices, which we regret was not given, it would have made nodifference to the result of the case. On that ground we dismiss theappeal.”
In the later case of Ruddx Humphreys J. in delivering the judgmentof the Court expressed the view that the evidence of a co-accused wasadmissible, that he was liable to be cross-examined but that there shouldbe a direction against the danger of acting on the testimony of a co-accused unless the jury finds that it is corroborated. Humphreys J.then proceeded to make a reference to the following passage occurring inthe First Supplement to the edition of Archbold then current:—
“ Where several prisoners are tried jointly, and one or more of themgives evidence on oath, it may in some cases be desirable that the juryshould be directed that, although the evidence given by one prisonerdoes in those circumstances strictly become evidence against his co-prisoners, they should not regard it as such, but should use thatevidence only for the purpose of considering whether that individualprisoner has given an explanation which may be true, or whether hisevidence compels the jury to disbelieve him.”
and state—
When the matter is looked at in that light, we agree that theremay be causes in which it is desirable that that course should be taken.”
1 32 Cr. App. R. 138.
470
BASNAYAKE, C.J.—The Queen v. Mapitigama Buddharakkita Thera
and 2 others
This statement in the supplement is now incorporated in the 34thEdition, section 566. The words quoted above are important and it iswell to bear in mind that while the evidence of a co-accused is evidencein the case and is not to be shut out in the consideration of the case ofthe others merely because something has been said involving them,there can arise particular cases in which the jury should be directed asin Meredith or in Rudd.
The authoritative view taken in Scotland on this subject of evidenceof a co-prisoner is in Young v. H. M. Advocate 1 where Lord Justice-General Clyde states the law thus at p. 73—
“ The general principle of the law of Scotland—apart from the Actof 1898—is that evidence led for the defence of one co-accused is notadmissible against another co-accused. … The right of cross-
examination is always subject in Scotland to the control of thetrial Court; and, if (as in Rex v. Paul) one of the accused used hisright to be called as a witness for the defence simply to plead guiltyin the box, it must not be assumed that, in Scotland, either his co-accused or the prosecutor would be entitled eo ipso to cross-examinehim in order to incriminate others of the co-accused. Further, it maywell be that a prosecutor is not entitled, under the cloak of cross-examination, to examine an accused upon matters irrelevant to thequestion of his own guilt, and extraneous to any evidence he hasgiven, in order to make him an additional witness against his eo-accused.”
Having regard to the trend of judicial opinion both in England andScotland, in which countries the law in regard to the right of an accusedto give evidence is the same, it would appear that it is the duty of thetrial Judge to be vigilant to see that the fact that the evidence given bya co-accused is evidence in the case is not abused by either an accused orthe prosecution, by one or both of them making use of the opportunityto invite the co-accused to inculpate the others by a cross-examinationdesigned to encourage him to do so.
In the instant case the learned trial Judge made his opinion that theyshould not act on the 5th accused’s uncorroborated testimony quite clearto the jury, but at the same time he indicated that a conviction was notillegal merely because it proceeds upon on his uncorroborated testimony.A co-accused is in the strict sense of the term not an accomplice. Anaccomplice so far as the Evidence Ordinance is concerned is a guiltyparticipator in the crime under trial who gives evidence for theprosecution. A co-accused does not fall within that expression in theEvidence Ordinance. TTis evidence in so far as it affects the others under-going trial jointly with him has to be treated with the same and evengreater caution depending on the circumstances of each case. In dealing
1 {1932) J. C. 63 at 71 et #eq.
RARWAYAKE, C.J.—The Queen v. Mapitigama Buddharakkita Thera
and 2 others
471
with the question of accomplices the learned trial Judge early in the chargetold the jury that in regard to Newton Perera they must treat his evidenceas the evidence of an accomplice, and in regard to Carolis Amarasinghethey should regard his evidence in the same manner as that of anaccomplice. He then went on to say that these were words of cautionand that he would address them on the strict legal position which heimmediately proceeded to do. Having first explained the meaning of theterm ‘ accomplice * he went on to say—
“ In some cases the Judge may properly rule that there is evidencethat the witness was a participant in the crime. I am not going tomake that ruling in this case. In the case of either of these witnessesI leave it entirely to you. . . . That will be your function inthis case. … In this case both witnesses with whom we arenow concerned—Newton Perera the 5th accused, and Amarasinghe—deny complicity in the crime of conspiracy to murder and the issuewhether they are accomplices is entirely one of fact and therefore solelywithin your province. ”
The use of the words “ must ’’and “ should ” in the course of the learnedJudge’s earlier observations can therefore be regarded as nothing morethan an invitation to the jury to regard these two witnesses asaccomplices. Indeed earlier and subsequent observations by the learnedJudge leave no room for doubt that in his opinion the jury would be welladvised to proceed on the footing that they were accomplices, but he didnot take the matter completely out of their hands. On the contrary heexpressly left it to them for their decision.
The learned trial Judge having correctly directed the jury in regard tothe law governing the evidence of accomplices proceeded to state that evenif the jury formed the opinion that either Carolis Amarasinghe or NewtonPerera was an accomplice, if they were so impressed with his evidence asto be satisfied that he was speaking the truth it was open to them, keepingin mind the warning given, to act upon his uncorroborated testimony.Having regard to the direction given to the jury it would not be correctto speculate what course of action the jury took in regard to the mannerin which they should treat the evidence of Newton Perera or CarolisAmarasinghe. These observations apply equally to the cases of the 1stand 2nd accused.
This is a convenient point at which reference may be made to a matterwhich learned counsel submitted totally impairs the evidence of the 5thaccused so far as it affects the others. It would appear that while the 5thaccused was under cross-examination his counsel conferred with him forseveral hours on more than one day on the matter of his evidence. Eventhe counsel for the prosecution who said that he saw nothing wrong in it
472
BA3NAYAKFj, C.J.—The Queen v. Mapitigama Buddharakkita Thera
and 2 others
was constrained to admit that that fact would lessen the value of theevidence given by the 5th accused thereafter. This is the evidence onthe point—
“ 27157 Q. Your Counsel visited you during this week-end ?
A. Yes.
Q. How many such hours did you spend over this week-end ?A. I think about four or five hours.
Q. How many hours did you spend with him on Saturday
last ?
A. About two hours.
Q. At what time did he come there ?
A. I think he came there at 11 a.m.
Q. He was there with you till 1 o'clock, was he ?
A. Yes.
Q. Yesterday, Sunday, was he there with you, both in the
morning and in the evening ?
A. Yes.
Q. How many hours in the morning ?
A. I think about two hours in the morning.
Q. How many hours in the evening 1A. About 45 minutes in the evening.
Q. This is in the middle of your being cross-examined
by me ?
A. Yes.
Q. Discussing with him, were you not, the evidence you
were giving ?
A. Yes, I discussed the evidence with him.”
It is an unwritten rule that except in the case of expert witnesses counseldoes not interview a witness once he is in the witness-box and once thecross-examination commences even an expert is not interviewed.
BASNAYAKE, C.J.—The Queen v. Mapitigama Buddharakkila Thera 47i
and 2 others
Learned counsel’s action in discussing the evidence with the accusedwhile tinder cross-examination is such a grave departure from that rulethat the Court cannot refrain from expressing not only its disapprovalof his action but also its censure.
The ground that the demonstration given by the Government Analystof firing with revolver PI prejudiced the accused is not one which theCourt can uphold as all the defence counsel were specifically asked bythe trial Judge whether they objected to the demonstration and everyoneof them said that they did not object (1699). In fact junior counsel forthe 1st and 2nd accused took an active part in the demonstration.
The case of the 2nd accused now calls for consideration. On certainmatters already discussed the evidence affects the 1st and 2nd accusedequally. On those points learned counsel for the 2nd accused wascontent to adopt and abide by the arguments addressed to the Court onbehalf of the 1st accused. The main submissions argued on his behalfare that the verdict was unreasonable and that a statement made by himto the police had been improperly admitted.
The main prosecution evidence against the 2nd accused consists ofthat of Carolis Amarasinghe the alleged accomplice, Kelanitillake, andKalansuriya. The evidence of Amarasinghe was that on all the occasionson which the 1st accused came, before the assassination to his house, the2nd accused drove his car and was in a position to see what the 1st didon those occasions and hear what he said. About a month before theshooting the 2nd accused came by himself to take medicine, Amarasinghebeing his family physician. Then he asked him, “ Jaye, what is thisSomarama referring to about shooting practice ? ”. He replied,
" That is all a lie. They have given up those ideas. It is all false. ”The next time the 2nd accused came was on 26th September at about6.30 a.m. to borrow Ps. 100 which he gave him. He next met him atKelaniya Vihare on 12th October. On that occasion it was, in thehearing of the 2nd accused, that the 1st accused said, “ Vedamahattaya,you need not fear anything. Everything that needs to be done hasbeen done. If necessary we will appeal even to the Privy Council.”The next point at which Amarasinghe’s evidence affects the 2ndaccused is when he says that at the Harbour Police Station the 1staccused said to the 2nd accused when they were in the cell on 14thOctober, “ Jaye, do not know whether Anura will tell ” (85). Thereafter,after Amarasinghe had made a statement to the Magistrate, he says allthe accused threatened him, and that 2nd accused was the one whothreatened him most. His evidence on this point reads-—
'* He asked me whether my intention was to give evidence againstthem and then to practise my profession and also live with my wifeand children. They told me that I would be destroyed along withmy house.”
474 BASNAYAKE, C.J-—The Queen v. Mapitigama Buddharakkita Thera
and Z others
Kelanitillake refers to his presence only once at the Kelaniya Vihare.He says—
(а)that the 2nd accused was at the temple in the afternoon of 25th
September and hearing his conversation with the 1st accusedand said, “ That is so Vedamabattaya. That is why I amwaiting.”
(б)that he followed Dickie Zoysa and others to the room of the 1st
accused and that he appeared to be in an excited state.
Kalansuriya’s evidence is that the 2nd accused asked him to givesecurity in Rs. 175,000 in connexion with the Sugar Factory at Kanbalaiby mortgaging his lands; but that ultimately the security was not needed.It was a business transaction. Kalansuriya hoped to make Rs. 20,000out of it. He also gave evidence of conversations with him about 19thSeptember and 28th September. On the former occasion when heremarked to the 2nd accused, “ What is the meaning of this uselessGovernment ! The prices of things are going up and the unemploymentproblem is on the increase.”, he replied, “ Within a week ‘ Sevala *Banda’s Government will be over.” On the latter occasion, after theassasination when Kalansuriya observed, 41 Things happened exactly asyou said.”, the 2nd accused explained, “ No, no, I did not say like that.”Kalansuriya says he then asked, “ Then how did you say it ? ”. Tothat he replied that there was a fatal sign in the deceased’s horoscope on25th September. Kalansuriya admitted in cross-examination—
(а)that he had said in the lower Court that everybody including himself
was dissatisfied with the Bandaranaike Government.
(б)that it was his view that Mr. Bandaranaike’s Government might
fall at any time.
that according to the conditions prevalent at that time he expected
the Government to fall at any moment.
that he said in the Magistrate’s Court that Mr. Bandaranaike was
getting personally unpopular.
that politicians and leaders of the Opposition used to call the
deceased “ Sevala Banda ”.
In the light of these admissions counsel’s submission that neitherKelanitillake’s nor Kalansuriya’s evidence regarding the 2nd accused canbe regarded as corroborative of Amarasinghe’s in material particulars isnot without merit. One important bit of evidence relied on by the
BASWAYAK K, C.J-—The Queen v. Mapuxgama Buddharakkita Thera
and 2 others
prosecution against the 2nd accused was his own statement to thepolice. That evidence was objected to as inadmissible. The questionsand answers which have a bearing on the evidence objected to are—
24384 Q. You remember I was questioning you at the time youwere asked to stand down about whether you ascer-tained from the 2nd accused where he was on themorning of 25th September 1959 ?
A. Yes.
243S5 Q. Did he tell you where he was on the monn'ng of the 25th ?
A. Yes.
243S6 Q. Where did he tell you as to where he was on the morningof the 25th ?
A. He told me that at 8.40 a.m. that day he drove toMr. K. C. Hadaraja’s bungalow at Ho. 8 McCarthyRoad.”
It is submitted that the statement, “ He told me that at 8.40 a.m. thatday he drove to Mr. K. C. Hadaraja’s bungalow at Ho. 8 McCarthy Road”,being a statement made to a police officer in the course of an investigationunder Chaper XH of the Criminal Procedure Code, cannot be used exceptfor the purposes prescribed in section 122 (3). The learned trial Judgewas inclined to agree with the submissions of counsel for the defence buthe admitted the evidence as he felt he was bound by the decisions of thisCourt in Thuraisamy v. The Queen 1 and Regina v. Anandagoda 2 to do so.In Thuraisamy’s case {supra) the point now taken by counsel was notadvanced or considered. There it appears to have been assumed thatstatements obtained from an accused person by a police officer acting underChapter XII could be proved under section 21 of the Evidence Ordinancewhere such statements were admissions.
In the Anandagoda case {supra) too the point raised in the instantcase was not taken, nor was Rex v. Jinadasa3 referred to even in thatcase. In Anandagodage’s case {supra) counsel urged that the statementsof the accused when taken as a whole amounted to a confession, andas the statements were made to a police officer by an accused person,proof of them against the accused was prohibited by section 25 of theEvidence Ordinance. The Court held that those statements did notamount to a confession as defined in the Evidence Ordinance. It wouldappear therefore that neither of the cases referred to are decisions on thepoint raised by counsel. It was assumed in both cases that proof of 1
1 (1952) 54 N. L. R. 451.8 (1960) 62 N. L. R. 241 at 252.
* (1950) 51 N. L. R. 529.
476 BASNAYAK.E, C.J.—The Queen v. MapUigama Buddharakkita Thera
and 2 others
an admission, which does not amount to a confession, made by an accusedto a police officer investigating an offence under Chapter XU was notexcluded by any statutory enactment.
The submission of learned counsel for the 2nd accused in the instantcase that a statement made to a police officer investigating a cognizableoffence under Chapter XXI cannot be used except for the purposesmentioned in section 122 (3) of the Criminal Procedure Code wasdecided in the case of The King v. Haramanis 1. Although the appealwas allowed on the ground that the Judge in his charge to the jury, hadmade an erroneous statement of fact in regard to a vital issue in thecase, the Court nevertheless went on to consider the other two groundsof appeal—
That there was misreception of evidence in the proof by theInspector of Police of the statement made to him by the accusedunder section 122 (3) of the Criminal Procedure Code.
That there was no direction in the charge that the statementreferred to in (6) was not original evidence against the accused.
The piece of evidence objected to was elicited in this way. Whileunder cross-examination by counsel for the accused, Inspector Doolestated that the accused made a statement to him voluntarily in whichhe said that he had a sword which he had thrown into the ela. TheInspector also went on to say that the accused did not say that he usedthat sword on that particular night or that he had been to the templethat night. At the end of his testimony the Inspector in answer toquestions put by the Court stated as follows :—
“ This is a part of the statement to me by the 1st accused which wasrecorded by me. On the morning of the 29th at about 10 a.m. whenI was ploughing a field I heard that the police had been informed. Idid not go to the Temple. I had a sword at home. Immediatelyafter the murder I threw it into the ela for I feared that I couldbe unnecessarily implicated. I can point out where the sword is now.I know nothing about the murder. ”
The Crown contended that—
the statement did not fall within the ambit of section 122 (3) as
it was not made in the course of an investigation under ChapterXU of the Code.
section 122 (3) only limits the use of the written record of a
statement. Oral evidence of such statement is not subject tosuch restrictions.
1 (1944) 45 N. L. B. 532.
BASKAYAKK, C.J.—The Queen v. Mapitigama Buddharakkita Thera477
and 2 others„
The Court held against the Crown on (o) and proceeded to consider (6). Itsconclusion on (6) is thus expressed—
“ Although on the wording of section 122 the question cannot besaid to be free from doubt, we are of opinion that on the variousauthorities I have cited oral evidence of a statement made undersection 122 is not subject by virtue of subsection (3) to the limitationimposed by that subsection and can be given in evidence undersection 157 of the Evidence Ordinance. ”
It next proceeded to consider whether section 91 of the Evidence
Ordinance barred oral evidence and came to the conclusion that it did.
The conclusions are summarised as follows
“ (1) A statement made to a police officer or inquirer by any person,which expression includes a person accused in the course of aninvestigation under Chapter XU of the Criminal Procedure Code,
(must be reduced into writing.
By reason of section 91 of the Evidence Ordinance only thewritten record of a statement within the ambit of (1) is admissiblein evidence. Hence oral evidence of such a statement is in-admissible.. The effect of our finding on this point is to renderthe words, ‘or to refresh the memory of the person recordingit’, almost nugatory, since there would appear to be nocircumstances in which oral evidence regarding the contentof the statement would be admissible. This is one of the mattersto which we would invite the attention of the Legislature.
The written record of such a statement is admissible by virtue of
section 122 (3) of Cap. 16 to contradict a witness after suchwitness has given evidence.
The written record of the statement of a witness used as formulated
in (3), is not substantive evidence of the facts stated therein, butis available for impeaching the credit of such witness as laiddow n bv section 155 of the Evidence Ordinance.
If it had not been for the prohibition contained in section 91 of the
Evidence Ordinance, oral evidence of a statement made underChapter XII of the Criminal Procedure Code might be tenderednot only to contradict a witness, but also under the provisions ofsection 157 to corroborate the testimony of such witness. Suchoral testimony would again not be substantive evidence of thefacts contained therein, but merely corroboratory. ”
478
BASNAYA_KB, C-J-—The Qtieen v. Mapitigama B uddharakkita Thera
and 2 others
Six years after this decision the majority of a bench of five Judges of thisCourt in Rex v. Jinctdasa (supra) expressed their dissent from the conclu-sion that section 91 of the Evidence Ordinance barred the reception oforal evidence of a statement recorded under section 122 of the CriminalProcedure Code. In doing so they stated—
“ The majority of us are, therefore, of opinion that the words ‘ Andin all cases in which any matter is required by law to be reduced to theform of a document ’ in section 91 of the Evidence Ordinance do notapply to the record which has been made under section 122 (1). ”
Jinadasd’s case (supra) first came up for hearing before a bench of threeJudges who adjourned the hearing as the question raised by counsel for theappellant appeared to them to be one of considerable importance. Thatquestion arose in this way. In consequence of what the accused hadtold the Inspector who was investigating the offence the accused wastaken to the place near which the crime weapon was found by theInspector. The relevant portion of the Inspector’s evidence as quotedin the judgment reads :
" Q. Did you search for anything when you went to the scene ?
A. I searched for a katty.
Q. Was the katty found ?
A. I found a kattr.
Q. In consequence of what did you search for it ?
A. In consequence of a statement made bj1, the 1st accused to me.
Q. Referring to what ?
A. Referring to the katty.
Q. What did he say ?
A. He said : ‘ I can point out the place where I threw it.’ I producea certified copy of it marked X2. The katt}' was found on thetop of some bata bushes. 1st accused pointed the katty outand he had to shake the bata bushes and the katty fell. Thebata bushes were by the side of the road about ninety feetfrom the place where the blood trail started. The katty wasvisible to anybody who was looking about the place.
Q. Anyone looking from the road could not see it ?
A. It was not visible to anyone looking from the road. At thetime I took charge of P4 there was something like human hairon one side of the blade. I produced P4 before the Magistrate.Matara.”
47fr
BASNAYAKE, C.J.—The Queen v. Mapitigama Buddharakkiia Thera
and 2 others
On this material the Court posed the following questions as the questionsarising for decision thereon :—
“ The questions for decision are whether oral evidence of what theappellant said leading to the discovery of the katty and the documentX2 were rightly admitted ? ”
The Court then proceeded to consider section 27 of the EvidenceOrdinance and sections 121 and 122 of the Criminal Procedure Code andthe decisions thereon, and formed the following conclusion :
‘■'The ‘information’ referred to in section* 27 of the EvidenceOrdinance is the oral statement of the accused himself, whereas thedocument contemplated in section 122 (3) of the Criminal ProcedureCode is not a statement by the accused but another person’s record ofan oral statement which is alleged to have been made by the accused.Therefore, the conclusion, which the majority of us reach is that thereis nothing in section 122 (3) which acts as a bar to the ftdl operation ofthe provisions of section 27 of the Evidence Ordinance or the admissionof an oral statement made by an accused person to a police officer for the' purposes of section 27. There is nothing in section 122 (3) which prohi-bits oral evidence being given of so much of the statement made by anaccused which is relevant under section 27 of the Evidence Ordinance asrelates distinctly to a relevant fact thereby discovered.
“ My Lord the Chief Justice takes the view that in view of the lan-guage of section 122 (3), which enables oral evidence to be led of astatement, the provisions of section 91 of the Evidence Ordinance arenot applicable, and that, therefore, it was permissible for the prosecutionto lead oral evidence of the statement made by the accused which ledto the discovery of the katty.
“ With regard to the admission of the written record of that oralstatement X2, we are of opinion that its admission was improper andnot permitted by section 122 (3). Whether that irregularity vitiatesthe conviction in this case, we shall now proceed to consider. ”
The decision in Jinadasa's case {supra) upon the question which arosefor decision there is that stated in the words italicized in the passagequoted above. That case also decided that proof of such information bythe production of the written record of the statement in the InformationBook is prohibited by section 122 (3). Iii recent times a practice hasgrown of extending the scope of Jinadasa’s case to statements not fallingwithin the ambit of section 27 of the Evidence Ordinance. Under thesupposed authority of that case oral utterances made to police officers inthe course of investigations under Chapter XII have been proved undersection 21 and section 157 of the Evidence Ordinance. There is no-authority in that decision for the proposition that evidence of an oralutterance to a police officer in the course of an investigation under
480BASNAYAKE, C. J.—The Queen v. Mapiligama B-uddharakkita Thera
and 2 others
Chapter XII or any record of such utterance is admissible in evi–dence either as an admission under section 21 or as corroboration undersection 157 of the Evidence Ordinance.
It is necessary therefore to examine the point arising on the submissionof counsel on its merits. At the outset it should be stated that no decisionof the Supreme Court or of this Court has been cited to us in which it wasargued and expressly decided that statements made by an accused personto an officer investigating a cognizable offence under Chapter XII may beproved contrary to the prohibition in section 122 (3) except in a case towhich section 27 of the Evidence Ordinance applies.
When the Code was enacted in 1898 police officers were not given thepower of investigating cognizable offences. That power was conferredonly on Inquirers. Later it was felt that that power should also be con-ferred on officers in charge of police stations and Chapter XU of the Codewas amended by the Criminal Procedure Code Amendment Ordinance,No. 37 of 1908. Although the Chapter was recast it remained in substancethe same except for the power conferred on officers in charge of policestations and the institution of the ‘ Information Book ’ and the abolitionof the diaries kept by the inquirers. The Chapter has as its heading" Information to Police Officers and Inquirers and Their Powers toInvestigate ”. Section 121 deals with information relating to the com-mission of a cognizable offence given to an officer in charge of a policestation. It requires that the information when given orally should bereduced to writing by him or under his direction and read over to the infor-mant, and that the person giving it should sign the writing made by theofficer or under his direction. The section also enables the informationto be given by the informant in writing instead of orally, for it providesthat a copy of the information whether given in writing or reduced towriting shall be entered in ‘ The Information Book ’.
Although the section provides that the ‘ Information Book 5 shall bekept in such form as the Minister may prescribe, no form has yet beenprescribed. Nevertheless there is in fact in every police station a bookcalled ‘ The Information Book ’ in which information relating to thecommission of cognizable offences is entered. The question whether thosebooks are the books contemplated in the statute does not arise for con-sideration here. Section 121 (2) then goes on to provide that if from infor-mation received or otherwise an officer in charge of a police station hasreason to suspect the commission of a cognizable offence he shall forthwithsend a report of the same to the Magistrate’s Court having jurisdiction inrespect of such offence or to his own immediate superior and shall proceedin person to the spot to investigate the facts and circumstances of the caseand to take such measures as may be necessary for the discoveryand arrest of the offender. An officer in charge of a police stationis empowered to depute one of his subordinate officers to proceed to the
BAS NAY A K K, C.J.—The Queen v. Mapitigama Buddharakkita Thera481
and 2 others
spot to make such investigation. Any police officer making an investi-gation under the Chapter is empowered to require, by order in writing,the attendance before himself of any person being within the limits of thestation of such police officer or any adjoining station who, from the infor-mation given or otherwise, appears to be acquainted with the circumstancesof the case and such person is bound to attend as so required. It is signi-ficant that the power to issue a warrant to secure the attendance of suchperson, when any person required to attend refuses or fails to do so, isconferred on inquirers alone and is not given to police officers.
Section 122 empowers any police officer' making an inquiry underChapter XU to examine orally any person “ supposed to be acquaintedwith the facts and circumstances of the case ” and reduce into writingany statement made by the person so examined. The section expresslyprohibits the administration of an oath or affirmation to any such personand the signing of the record of the statement made by such person. Theenactment, by implication, requires that the statements made by personsexamined orally by a police officer making an inquiry under Chapter XIIshould, wherever possible, be recorded in the “Information Book” in thefjrst instance. But when it is not possible to do so it requires that a truecopy thereof should as soon as may be convenient be entered by such policeofficer in the “ Information Book ”. Subsection (2) of section 122 pro-vides that a person examined orally under section 122 (1) by an officermaking an inquiry under Chapter XII is bound to answer truly allquestions relating to the case under inquiry put to him by such officerother than questions which would have a tendency to expose him to acriminal charge or to a penalty or forfeiture.
The material portion of subsection (3) which is the provision that callsfor interpretation for the purpose of deciding the question raised bycounsel reads—
“ No statement made by any person to a police officer or an inquirerin the course of an investigation under this Chapter shall be used other-wise than to prove that a witness made a different statement at a diffe-rent time, or to refresh the memory of the person recording it. ”
Does the word c statement ’ where it first occurs in the subsection includeboth the words spoken by the person examined and the record of it madein writing by the examining police officer? Having regard to the contextin which it occurs both the spoken and the written word appear to becontemplated, i.e., the spoken word as well as the record of it. A referenceto section 125 of Chapter XII of the Criminal Procedure Code as originallyenacted confirms this view. That section reads—
“ No statement other than a dying declaration made by any personto an Inquirer in the course of any investigation under this Chaptershall if reduced to writing be signed by the person making it or shallbe used otherwise than to prove that a witness made a differentstatement at a different time. ”
482
BASN"AYAKE, C.J.—The Queen v. Mapitigama BuddharaJckita Thera
and 2 others
This provision applies both to the spoken and written word. There isnothing in the new Chapter XU which indicates that the Legislatureintended to make a far reaching change in the law when it re-enacted thatChapter in order to extend to police officers in charge of police stationsthe power to investigate cognizable offences. In this view of section 122the use of the oral statement made to a police officer in the course of aninvestigation under Chapter XXI is as obnoxious to it as the use of the samestatement reduced into writing.
The evidence of the statement made by the 2nd accused to the policeofficer investigating the offence should not have been admitted. It wasused against him by the prosecution. It is referred to in thesumming-up :
“ The prosecution says that No. 8 McCarthy Road, is practically astone’s throw from Mr. Bandaranaike’s garden. The prosecution seeksto utilize the 2nd accused’s statement as evidence which indicates thatthe 2nd accused was at a very advantageous place in order to see forhimself whether the plan was going to be successful or not. ”
The improper admission of this evidence is by itself not a ground for anew trial or reversal of the verdict, if independently of the evidenceobjected to and admitted there was sufficient evidence to justifythe verdict. Having regard to the totality of the evidence against the2nd accused it appears to the Court that there was sufficient evidence tojustify the verdict independently of the evidence improperly admitted-
Little need be said concerning the charge of conspiracy against the 4thaccused. He had no grievance against the deceased and was onlythe instrument by which others achieved their end. In his confession hesays that the deceased had done him no wrong. In his case, Amarasinghe'sevidence that he said that he practised firing with a revolver to shoot thePrime Minister is corroborated by the fact that he shot the deceased witha powerful revolver. No more corroboration need be looked for as hisact provides corroboraton in the most material particular. It is there-fore unnecessary to discuss further the charge of conspiracy against the 4thaccused. Most of the important grounds urged in regard to the 1st and2nd accused do not arise in his case. The evidence of the Amara Viharegroup of witnesses established that the 4th accused was in contact with the1st and 2nd accused and in conclave with the 1st accused during theperiod immediately preceding the shooting.
There remains for consideration only the ground that the sentencepassed on the 1st and 2nd accused is illegal. On their behalf it was arguedthat only sentence of imprisonment for life and not sentence of deathshould have been imposed upon their conviction, on count (1) of the indict-ment, of the offence of conspiracy to commit or abet the murder of the
483
BASNAYAELE, C.J.—The Queen v. Mapitigama BuddharaJektia Thera
and 2 others
deceased. Until the enactment of the Suspension of Capital PunishmentAct No. 20 of 1958 (hereinafter referred to as the Suspension Act) whichtook effect on May 9th 1958, the punishment for the offence of conspiracyto commit or abet murder was undoubtedly the punishment of death ;section 113b of the Penal Code provides that the punishment for thatoffence is the same as the punishment for the abetment of murder, andunder section 102 of the Code the punishment for abetment of murder isthe punishment provided by section 296 for the offence of murder itself.Section 2 of the Suspension Act, however, in addition to providing thatcapital punishment shall not be imposed under section 296 for the com-mission of murder, also made an alteration in the law affecting the punish-ment for the offence of abetment of murder and accordingly for the offenceof conspiracy to commit or abet murder. While the Suspension Actwould be in force section 2 (6) provided that section 296 shall have effectas if for the word ‘c death ” there were substituted the words “ rigorousimprisonment for life Clearly therefore by virtue of the SuspensionAct a person who committed the offence of conspiracy to murder whilethe Act was in force became liable to the punishment of rigorousimprisonment for life and not to the punishment of death.
I
The law however was again altered by the Suspension of Capital Punish-ment (Repeal) Act No. 25 of 1959 (hereinafter referred to as SuspensionRepeal Act) which repealed the Suspension Act. This repeal took effecton December 2nd 1959 some months after the period during which, accordingto the indictment and verdict in this case, the 1st and 2nd accused com-mitted the offence of conspiracy to commit or abet murder. Taking firstsection 2 of the Suspension Repeal Act, which section repealed the Sus-pension Act, it is pertinent to consider the punishment which on and after2nd December 1959 the law provided in cases of murder, abetment ofmurder, and conspiracy to commit or abet the offence of murder, wheresuch offences had been committed at any time during the period 9th May195S to 1st December 1959. Prima jade it might be thought havingregard to the repeal of the Suspension Act, that the punishment for anysuch offence committed during the period aforesaid would be that of death,being the punishment “ revived ” for the offence under section 296 ;for as was the case prior to 9th May .1958, the punishment for the offenceunder section 296 became once again the punishment of death. Thisimpression is however corrected by section 6 of the Interpretation Ordi-nance (Cap. 2 Revised Ed. 1956 at page 17). The relevant portion ofsection 6 (3) of the Interpretation Ordinance reads as follows :—
:£ Whenever any written law repeals … in whole or in part aformer written law, such repeal shall not, in the absence of any express
provision to that effect, affect or be deemed to have affectedany penalty .. incurred under the repealed written law. ”
484
BASNAYAKE, C.J.—The Queen v. Mapitigama Buddharakkita Thera
and 2 others
Leaving out of consideration for the moment the words which have beenunderlined above, the repeal by the Suspension Repeal Act of theSuspension Act, and in particular the re-introduction into section 296 ofthe Penal Code of the word “ death ” in replacement of the words“ rigorous imprisonment for life ” (which latter words had temporarilybeen substituted into the section in 1958) did not affect the penalty in-curred under the repealed law, that is to say under section 296 in the formin which that section stood during the “ interval of suspension ”, andtherefore an offence of murder committed during the interval of suspensionwould have attracted only the punishment of rigorous imprisonment forlife notwithstanding that the conviction for that offence may be enteredafter the Suspension Repeal Act came into force ; and it would followthat the same would be the case in the event of a conviction for an offenceof abetment or conspiracy committed during the interval of suspension.
Turning now to the words from section 6 (3) of the InterpretationOrdinance underlined, there was undoubtedly in the Suspension RepealAct some provision of the nature contemplated by the words underlined.The relevant part of that Act is section 3 (a)—
“ Notwithstanding anything in any other written law, capitalpunishment shall be imposed—
(a) under section 296 of the Penal Code on every person who, on orafter the date of the commencement of this Act, is convictedof the offence of murder committed prior to that date ; ”
The effect of this section, having regard to its express words, is that theLegislature clearly declared its intention that upon every conviction forthe offence of murder entered after 1st December 1959 the punishment tobe imposed for that offence shall be the punishment of death, notwith-standing anything in any other 'written law, the written law herein reference being section 6 (3) of the Interpretation Ordinance. Hencefor instance in the case of the 4th accused who has after 1st December1959 been convicted of the offence of murder committed prior to the cominginto force of the Suspension Repeal Act, section 3(a) avoids the effect ofsection 6 (3) of the Interpretation Ordinance by clearly providing for thedeath penalty for persons in the position of the 4th accused. There ishowever nothing more in the Suspension Repeal Act in the nature of anyexpress provision to limit the operation of section 6(3) in its applicationin a case where a person is convicted after that Act of any other offencewhich at the time of its commission attracted, by reason of the SuspensionAct only the punishment of imprisonment for life, and not the punishmentof death.
The only argument adduced by counsel appearing for the Crown wasquite unconvincing. It was that, since the relevant sections (113B, 102and 296) of the Penal Code, as they stood at the time of the convictionsin this case, provide for the punishment of death for the offence of
485
Niiaioeera v. Commissioner of Inland Revenue
conspiracy to commit mtucder, the tried Judge had by law to impose, thatpunishment. This argument completely ignores the existence and effectof section 6(3) of the Interpretation Ordinance.
We accordingly quash the sentence of death passed on the 1st, 2nd and4th accused in respect of the first count of conspiracy and substitutetherefor a sentence of imprisonment for life.
The sentence of death imposed on the 4th accused in respect of thesecond count of murder is affirmed.
Subject to the above variation of the sentence passed in respect of thecharge of conspiracy the appeals of all the accused are dismissed and theirapplications are refused.
Appeals and Applications dismissed subject to thevariation that the sentence of death passed in respect ofthe count of conspiracy is altered to a sentence ofimprisonment for life.