COURT OF APPEAL.
HC KALUTARA 39/97.
15™. 16™ NOVEMBER. 1999.
Penal Code Ss.32, 140, 146, 296, 351 – Unlawful Assembly – CommonObject – Common intention – Abduction – Dock statement – Importance oj'considering same – Omissions and contradictions – Belated statement topolice – infirmities in evidence.
(1) Evidence is infirm, unsafe and unreliable to act upon considering thefollowing :
the belated statement made to the Police with delay notexplainedwith acceptable reasons.
material questions and contradictions go to the very root of theprosecution case.
failure to evaluate and consider the dock statement of accused.
APPEAL from the High Court of Kalutara.
Case referred to :
Punchirala u. Queen 75 NLR 174 at 176
Dr. Ranjith Fernando with Ms. Anoja Jayaratne and Ms. SandamaliMunasinghe for accused appellant.
Vijith Malalgoda, S.S.C for Attorney General.
Cur. adv. uult.
HECTOR YAPA, J.The accused-appellant (7th accused) was indicted alongwith seven other accused in the High Court of Kalutara. They
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were indicted on nine counts and these offences werecommitted on 27th January 1989. In the first count, all theaccused were charged with having being members of anunlawful assembly, the common object of which was to abductHewage Siriwardana Karunatilake and KammanthigeChandradasa in order to cause their deaths, and therebycommitted an offence punishable under Section 140 of thePenal Code. The second and third counts related to thesaid abduction of Karunatilaka and Chandradasa in theprosecution of the common object and thereby commitedoffences punishable under Section 355 read with Section 146of the Penal Code. Fourth and fifth counts related to thecommission of murder by causing the deaths of the saidKarunatilake and Chandradasa in the prosecution of thecommon object and thereby committed offences punishableunder Section 296 read with Section 146 of the Penal Code.Sixth and seventh counts were common intention counts inrespect of the abduction of the said Karunatilake andChandradasa which were offences punishable under Section355 read with Section 32 of the Penal Code. Eighth and ninthcounts were also common intention counts for committing themurders of the said Karunatilaka and Chandradasa, whichwere offences punishable under Section 296 read with Section32 of the Penal Code.
It would appear from the proceedings that the 6lh accusedMawathage Samson Maddonsa had died prior to thecommencement of the trial. The 8th accused H. S. Wickramapalawas absconding and therefore the trial proceeded against himin absentia, in terms of Section 241 of the Code of CriminalProcedure Act No. 15 of 1979. After the prosecution case the1st and 4th accused were acquitted by the learned High CourtJudge withou t calling for their defence. At the conclusion of thetrial, the High Court Judge acquitted the 2nd, 3rd and 5U'accused in respect of all counts, and convicted the 7lh accusedi. e. the accused-appellant in this case, in respect of 8th and 9lhcounts in the indictment, and thereafter sentenced him todeath. The present appeal is against the said conviction andthe sentence.
Udagama v. Attorney General (Yapa, J.)
The prosecution in this case led the evidence of Piyaseeli,Karunadasa, Ajith Premasiri, the medical evidence and thepolice evidence. According to witness Piyaseeli, a sister of thedeceased Chandradasa, on 27. 01. 1989 she had returnedhome from school at about 7.00 p. m. and was sleeping in herhouse. At about 8.00 p. m. she got up from her sleep, when shewas suddenly pulled out from the bed and at that stage she hadseen a crowd of people in the house. The crowd was about 60persons and about 10 persons from the crowd had gone to theroom where her bother Karunadasa was studying. Since therewas a bottle lamp burning in her brothers room, she hadidentified the 1st, 2nd, 3rd, 4th, 5th, 7th (accused appellant) and the8th accused. She stated that the 7lh accused, (accused-appellant) 8,h accused and one Cyril Premaratne were armedwith guns. Thereafter the crowd which had gone to Karunadasa'sroom, taken hold of him, tied him with a wire and dragged himtowards the road. She further testified that about half an hourlater, her brother Karunadasa returned home and told her thatthe crowd had released him after he had told them that hisbrother Chandradasa had gone to a funeral house. On thefollowing day she came to know that her brother Chandradasaand her brother-in-law Karunatilake had been murdered. Sheadmitted making her statement to the police on 22. 03. 1990,nearly 15 months after the incident.
Witness Karunadasa gave evidence and stated that, on thenight of 27. 01. 1989 when he was studying, a crowd of about15 persons had come and threatened him with death bypointing a gun at him. Thereafter they had tied his hands witha wire, taken him out and questioned him about his brotherChandradasa and his brother-in-law Karunatilake. When hehad told them his brother Chandradasa had gone to Piyasena'sfuneral house and that brother-in-law Karunatllaka may be inhis house, he was release by the crowd. According to thiswitness he had identified the 2nd, 3rd, 5th, 6th, 7lh (accused-appellant) and 8th accused as being present in the crowd.Finally he testified that on the following day, he came to knowthat his brother Chandaradasa and his brother-in-law
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Karunatilake and been murdered and he had made hisstatement to the police on 28. 01.1989.
Witness Premasiri stated that at about 7.00 p. m. on27. 01. 1989, he had gone to the funeral house of Ariyadasa'sfather. There was a crowd of about 30 to 40 persons and thetwo deceased persons, Karunatilake and Chandradasa hadbeen there. A petrol max lamp had been burning in thecompound of the funeral house. At about 10.30 or 11.00 p. m..a crowd of about 10 persons, some armed with clubs and guns,had come there and got hold of the two deceased persons,Chandradasa and Karunatilake. The people who were in thecompound of the funeral house, were locked inside the house.At that stage the witness through fear had run to the jungle,and when he was there, about one or two hours later, he hadheard two gun shots. Witness Premasiri had identified the 3r,Jand the 7lh accused (accused-appellant) and according to himthe 7lh accused had been in the crowd armed with a gun. Hehad made his statement to the police 15 months after theincident, i. e. on 12. 04. 1990.
According to the medical evidence, the two deceasedpersons Chandradasa and Karunatilake had died of gun shotinjuries. Chandradasa had received one gun shot injury on thechest, causing three lacerations on the back of the chest whichwere probably exit wounds. Cause of death was due to thedamage to the right lung causing haemorrhage into the chestcavity. Deceased Karunatilake had received two gun shotinjuries, causing two entrance wounds on the right side of thechest and on the head just in front of the right ear. In additionhe had one exit wound on the left side of the head and five exitwounds on the back of the chest. Cause of death was due tolaceration of the brain resulting from a firearm injury.According to the doctor, two deceased persons had receivedclose range gun shot injuries which were necessarily fatal andthat, they would have died shortly after the receipt of theinjuries. Chief Inspector Sundarapala gave formal evidencewith regard to the conduct of the post-mortem examinationsby the doctor, the recording of statements of witnesses andarrest of some of the accused.
Udagama v. Attorney General (Yapa, J.)
At the end of the prosecution case, when the defence wascalled, 3rd accused and the 7th accused (accused-appellant)made dock statements. In his statement 3rd accused deniedany involvement with the incident and said: that he wasinnocent. 7th accused (accused-appellant) in his dockstatement said that, during the relevant period there was fearpsychosis in the county. At that time he was working as ateacher in. the village Daham school and.since he receiveddeath threats, he proceeded to his elder sister's house atMihintale .and stayed there. He said that he knew nothingabout this incident, till the police questioned him- andtherefore he was innocent.
At the hearing of this appeal, it was submitted by learnedCounsel for the accused-appellant, that the evidence of thethree main prosecution witnesses Piyaseeli, Karunadasa andPremasiri was unreliable and therefore cannot be acted uponto convict the accused-appellant. Counsel contended that thewitness Piyaseeli had made a belated statment to the police, 15months after the incident. The explanation given by her thatthe delay was due to the situation that prevailed in the countryis unacceptable, for the reason that her own brother Karunadasawho gave evidence at the trial and her mother Alisnona, hadmade statements to the police on the veiy next day after theincident. Another observation that was made by Counsel wasthat, even though Piyaseeli had identified 1st, 2nd, 3rd, 4th, 5thand 7th accused as being present in the crowd, the learned trialjudge had not acted on her evidence, and decided to acquitall the accused mentioned by her at the trial, except theaccused-appellant (7th accused). Counsel further referred tothe fact that witness Piyaseeli had mentioned for the first timeat the trial that the 7th accused who was in the crowd wasarmed with a gun, a fact not referred to by her, in her statmentto the police.
In relation to witness Karunadasa, it was submitted byCounsel that, this witness had not mentioned in his policestatement made on the following day and also in his evidence
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before the Magistrate, that the accused-appellant (7th accused)was present in the crowd which came to his house on27. 01.1989. It was at the trial before the High Court, 9 yearsafter the incident, that for the first time, witness had referredto the presence of the accused-appellant (7th accused) in thecrowd. This omission was proved at the trial. In additioncertain other omissions were proved at the trial namely, thatthe witness Karunadasa who had failed to refer to the presenceof the 2nd, 3rd and 5th accused in the crowd that came to hishouse on 27. 01. 1989, in his statement to the police, hadtestified to their presence in the crowd, at the trial before theHigh Court. Therefore it is very clear that witness Karunadasahad implicated the 2nd, 3rd, 5th and the 7th accused (accused-appellant) several years later at the trial. Besides, it wouldappear that the acquittal of the 2nd, 3rd and 5th accused at thetrial would indicate that the learned High Court Judge hasdisbelieved the evidence of this witness.
In respect of witness Ajith Premasiri it was submitted byCounsel that this witness also had made a belated statementto the police, namely on 12. 04. 1990, 15 months after theincident. Further having mentioned in his police statementthat he had seen the accused-appellant (7th accused) in thecrowd, which had taken away the two deceased persons,testified at the trial before the High Court nearly 9 years laterstating that, the accused-appellant (7th accused) was not onlypresent in the crowd, but he was also armed with a gun at thattime. This vital omission was proved by the defence at the trial.There was another omission proved at the trial, in respect ofthis witness namely that, he having omitted to mention to thepolice that the 3rd accused was present in the crowd on the datein question, gave evidence at the trial stating that the 3rdaccused was present in the crowd which had come to thefuneral house to take away the two deceased persons.
Therefore taking into consideration the serious infirmitiesin the evidence of the three witnesses Piyaseeli, Karunadasa
Udagama v. Attorney General (Yapa. J.)
and Premasiri, it is our view that it would be unsafe to act onsuch unsatisfactory evidence to base the conviction of theaccused-appellant. When one examines the judgment of thelearned High Court Judge, it would appear that he has reliedheavily on the evidence of witness Premasiri. HoweverPremasiri's evidence is also subject to very serious infirmitiesas referred to above. Unfortunately, the learned High CourtJ udge has failed to give his mind to the vital infirmities in theevidence presented by the prosecution. We are therefore inagreement with the submission of the learned Counsel that theevidence of the three main witnesses for the prosecution isunreliable and it, would be unsafe to act upon such evidence,to convict the accused- appellant.
Another submission that was made by the learnedCounsel for the accused-appellant was that the learned HighCourt Judge has failed to consider the dock statement madeby the accused-appellant. It was contended that the learnedHigh Court Judge has not even made mention of the dockstatement. The accused-appellant had taken up the positionthat during the relevant period he was living at Mihintale.Therefore it was incumbent on the trial Judge to considerwhether the dock statement has created a reasonable doubt onthe prosecution case. In the case of Punchircda us. The Queenat 176 G.P.A. Silva, S.P.J. highlighted the importance ofconsidering the dock statement. In the course of his judgmentit was observed as follows: “While it was necessary to pointout to the jury the infirmities attaching to a statementfrom the dock, the only material in this case on behalf ofthe accused being that statement, it was the duty of thetrial Judge to leave the considerations of that statement,entirely to the jury untrammelled by an expression ofopinion by him.”
Therefore, in our view, the failure of the High Court J udgeto consider the dock statement, which was the only materialin this case on behalf of the accused appellant, had causedserious prejudice to the accused-appellant.
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Another matter that was raised by Counsel in this appealwas that, this being a case of circumstantial evidence, therewas a failure on the part of the High Court Judge to considerthe principles governing the evaluation of circumstantialevidence. In relation to this matter, all that the High CourtJudge had to consider was, whether the available evidence wastotally inconsistent with the innocence of the accused andmust only be consistent with his guilt. However in this casesince the conviction has to be set aside due to the unreliabilityor the unsatisfactory nature of the evidence presented by theprosecution, it is unnecessary to examine this argument indetail. Suffice to state here, that the High Court Judge has notconsidered this case as a case of circumstantial evidence,since he has made no such reference in his judgment.
• Therefore, we are of the considered view that the learnedHigh Court Judge was in serious error, when he decided to actupon such unreliable and unsafe evidence as referred toabove, to convict the accused-appellant. Learned Senior StateCounsel very fairly conceded that there were seriousinfirmities in the prosecution evidence. Taking intoconsideration all these infirmities and the other mattersreferred to above, we set aside the conviction and the sentenceof death passed on the accused-appellant and acquit him.Appeal is allowed.
KULATILAKA, J. I agree.