QAWimalaratne Silva and another v Attorney General109
' (Sarath De Abrew, J.)
Witness Oliver de Silva had seen the deceased in thecompany of the 1st accused-appellant Appu seated in front ofthe house of Siriyawathie apparently drunk around 9.45 p.m.
' on 03.08.1997, the last time the deceased was seen alive. Theabove provides evidence of opportunity and is in direct conflictwith the defence evidence that the 1st accused-appellantarrived home around 8.30 p.m. on 03.08.1997 and did notdepart from his house thereafter.
I.P. Asoka De Silva, then OIC Dehiaththakandiya, has givenevidence to the effect that a complaint was received on13.08.97 as to the disappearance of the deceased Piyaratne,whereupon on 14.08.97 the 2nd accused-appellant “Putha”was taken into custody and consequent to an extract from hisstatement (P2), the dead body of the deceased wasdiscovered. The evidence further disclose that as thestatement of Siriyawathie recorded on 14.08.97 prior to that ofthe 2nd accused-appellant had divulged the location of thedead body to the police, this item of evidence would beadmissible against the 2nd accused-appellant not undersection 27(1) but under section 8(2) of the EvidenceOrdinance under subsequent conduct.
S.l. Mahindasiri has given evidence to the effect thatconsequent to an extract from the statement of the 1staccused-appellant (P4), and axe (P3) allegedly used tocommit the offence was recovered hidden in a paddy field.However the police have failed to send this axe to theGovernment Analyst. Even though the medical evidence hadestablished that the injuries on the dead body were inflicted bya heavy blunt weapon that had crushed the skull and also bya sharp-cutting weapon causing an injury on the jaw and hadalso completely severed a leg, there is no conclusive evidenceto establish that the aforesaid axe (P3) was used to committhe offence.
Based on the above evidence, the learned trial Judge hadconvicted both the accused-appellants for murder under section296 of the Penal Code and sentenced them to death. As recordedin the last paragraph of the judgment (Page 264 of the originalrecord), the learned trial Judge had arrived at this conclusion on the
110Sri Lanka Law Reports[2008] 1 Sri L.R
basis of individual liability of each accused and not on the basis ofcommon intention as stated in the preceeding paragraphs of thejudgment. (Pages 262 – 263).
The learned counsel for the appellants has raised the followingcontentions in support of his arguments to assail the convictions ofthe appellants.
The learned trial Judge has misdirected himself by placingtotal reliability on the most important witness Siriyawathie who haddisplayed a complete lack of creditworthiness in that it was not safeto found a conviction based on her evidence.
Due to the total absence of direct evidence as to the actusreus itself, there is no clear-cut evidence as to who actually causedthe death of the deceased either by way of individual liability or byway of joint liability on the basis of common intention, and thereforethe conviction founded on the basis of individual liability of eachaccused cannot be sustained, (page 45 of the judgment and page264 of the original record)
Until the end of the evidence of the 4th witness for theprosecution the two accused persons were seated in wrong placesin the dock during the trial (page 88 of the original record) givingrise to a confusion as to which accused commited which act, whichis reflected not only in the evidence of the first few witnesses butalso in the judgment itself.
(a) There is a total failure on the part of the trial Judge to
properly scrutinize and analyse the evidence of thedefence and had failed to give valid reasons for therejection of the defence evidence.
The learned trial Judge had failed to evaluate theevidence with regard to the defence of alibi adduced bythe accused-appellants.
While evaluating the defence evidence, the learned trialJudge had misdirected himself in attaching a burden tothe defence to prove its innocence and to disprove theveracity of the prosecution evidence.
Having perused the entirety of the proceedings, the judgment ofthe learned trial Judge, the Information Book Extracts and the oral
qAWimalaratne Silva and another v Attorney General■( -j
(Sarath De Abrew, J.)
and written submissions tendered to court, I now proceed to dealwith the several grounds of appeal urged on behalf of theappellants, in the light of the oral and written submissions tenderedon behalf of the respondent.
At the outset it must be emphasized that the paramountquestion that has to be answered first is the question of credibilityof the main witness Sirivawathie as stated in the first contentionraised on behalf of the appellants. In order to arrive at a reasonableconclusion in this regard, the following features in the evidence ofSiriyawathie has to be closely scrutinized.
Eight contradictions (V1 – V8) have surfaced in Siriyawathie’sevidence at the High Court trial. The learned trial Judge hasopted to disregard these contradictions on the basis that theydo not go to the root of Siriyawathie’s evidence. (Page 255 ofthe originial record).
Under cross-examination at the trial, even though Siriyawathiehas denied having admitted to giving a false statement to thepolice and to giving false evidence at the inquest (V4) (Page58) and also giving false evidence at the non-summary inquiry(V6) (Page 59), non-summary proceedings of 24.04.98indicate otherwise and that she had been remanded afteradmitting she had given false evidence. (Pages 30-31 non-summary proceedings). This important aspect had escapedthe attention of the learned trial Judge while evaluating theevidence of Siriyawathie.
The learned trial Judge had also failed to assess the belatednature of Siriyawathie’s testimony. The evidence reveals thatfrom the third day after the disappearance of the deceasedPiyaratne, the 2nd accused-appellant ‘Putina’ had beenmaking utterances to Siriyawathie, firstly to the effect that thedeceased had left Kudagala to go to his native village,secondly that the deceased will not come back andSiriyawathie need not be afraid, and thirdly culminating withthe confession that he and his brother Appu, the 1st accused-appellant killed and buried the deceased. Siriyawathieobviously was not only a belated witness but a reluctantwitness as she had made no attempt to divulge this vital
112Sri Lanka Law Reports[2008] 1 Sri L.R
information either to the Grama Sevaka or the Police, until shewas apprehended by the Police and her statement wasrecorded on 14.08.1997. The explanation for the delay ascontained in V8 (Page 61 of the original record) was that shewaited for the body to be found to make a statement. Underthe circumstances, the conduct of Siriyawathie was more inthe nature of an accomplice who may have instigated thecommission of the offence.
In reviewing the veracity or creditworthiness of a witness, theappellate court, which do not have the benefit of observing thedemeanor and deportment of a witness first-hand, may resort to thefollowing methods.
The appellate court may look into the statement to the policemade by the witness. Keerthi Bandara v Attorney-GeneraK1)
Credibility of a witness may be impugned by employing thetests of probability and improbability, consistency andinconsistency, spontaneity and belatedness andinterestedness and disinterestedness. Wickremasuriya vDedoleena and others (2)
The following salient features in Siriyawathie’s evidencedisplayed her total unreliability and complete lack ofcreditworthiness as contended on behalf of the appellants.
On a perusal of Siriyawathi's statement to the police it is quiteevident that Siriyawathie was the mistress of both thedeceased Piyaratne and the 1st accused-appellant “Appu”,even though she had vehemently denied this position at theHigh Court trial. The defence had marked contradicition VI inthis respect. As the entire episode revolved around therelationship of Siriyawathie with the deceased and the 1staccused-appellant, this contradiction goes to the root of thematter as far as Siriyawathie’s creditworthiness wasconcerned.
As illustrated by contradictions V4 and V6, Siriyawathie hadkept on changing her position from the police statement,inquest proceedings, non-summary inquiry and finally the High
Court trial.
QAWimalaratne Silva and another v Attorney-General113
(Sarath De Abrew, J.)
In applying the test of spontaneity and belatedness,Siriyawathi has failed to adduce a justifiable and plausiblereason to justify the belated and involuntary nature of herstatement to the police.
Sumanasena v A ttorney-General (3)
Queen v Pauline de Croos (4)
Siriyawathi’s evidence as to the involvement of the appellantsin the death of the deceased is not corroborated by any otherconclusive, direct or circumstantial evidence..
In view of the foregoing reasons. I am firmly of the view thatSirivawathie lacked creditworthiness and it would have beenunsafe to have founded a conviction on the uncorroboratedtestimony of Sirivawathie. In view of the above the first contentionadduced on behalf of the appellants should succeed.
I now proceed to dwell on the 2nd contention raised on behalf ofthe appellant as to the sufficiency of evidence to base a convictionfor murder against the appellants either on individual liability or byway of joint liability on the basis of the concept of commonintention. On a perusal of the judgment it is quite confusing andambiguous as to on what basis the convictions were founded. Atthe outset the learned trial Judge opines that the prosecutionshould prove the presence of common intention but the lastpassage of the judgment concludes by convicting the appellants onthe basis of individual liability.
At page 43 of the judgment (Page 262 of the original record), the
that the 1st accused-appellant was activated with a murderousintention at the time of the commission of the offence, based firstlyon the utterance of the 1st accused to Chandrakanthi the followingday and secondly on the failure of the 1st accused to produce

and proceeds to hold

learned trial Judge quite emphatically declares
appellants for the offence of murder.
The judgment of the learned trial Judge is flawed for the
following reasons.
A conviction has to be founded either on individual liability orvicarious liability or sometimes both. It should be based onconcrete evidence and not on surmise and conjecture.
Due to the absence of evidence as to the commission of theactus reus in this case, a conviction cannot be based onindividual liability as against each accused-appellant, due tothe lacuna of evidence as to which blow dealt by whichaccused caused fatal injuries on the deceased which directlycaused his death. There is no evidence whatsoever,circumstantial or otherwise, to decide beyond reasonabledoubt that each of the accused-appellants dealt fatal blows onthe deceased directly causing his death. It could very well bethat only one of the appellants dealt fatal blows on thedeceased, in which event the other accused-appellant cannotbe held liable on the basis of individual liability, unlike on thebasis of vicarious liability and the concept of commonintention.
Whatever the influx of circumstantial evidence as to motive,opportunity, previous conduct and subsequent conduct cannotfill this lacuna of evidence as to the commission of the actusreus itself, unless there is clear-cut circumstantial evidence asto which accused dealt which fatal blow in order to base aconviction on individual liability.
The alleged confession to Siriyawathie by the 2nd appellantcannot be proved against the 1st appellant under section 30 ofthe Evidence Ordinance. As the testimonial creditworthinessof Siriyawathie is questionable, it is not safe to convict the 2ndappellant on the basis of individual liability on thisuncorroborated testimony alone.
114Sri Lanka Law Reports[2008] 1 Sri L.R
evidence that would consolidate his innocence and contradict theprosecution evidence. In the last paragraph of the judgment (Page264 of the record), the learned trial Judge has finally held:-
and proceeded to convict both

(individual liability)
CAWimalaratne Silva and another v Attorney-General-j -j 5
(Sarath De Abrew, J.)
For the above reasons, the decision of the learned trial Judge toconvict both appellants on the basis of individual liability cannot besustained.
It is now left to examine whether there was sufficient evidenceto convict the appellants for the offence of murder on the basis ofvicarious liability and common intention. Here too, the judgement isflawed for the following reasons, as the learned trial Judge hadfailed to observe the following rules.
The acts and complicity of each accused must be consideredseparately. King v AssappiA5) Justice Dias.
The inference of common intention must not be drawn unlessit is an irresistible and necessary inference from which there isno escape. W. Richard v The Republic (76 NLR 534).
The Prosecution must prove that each of the accused wereharboring a common murderous intention at the time of thecommission of the offence.
Punchi Banda v The QueenW Justice Sirimanne.
It is now opportune to examine the circumstantial evidenceavailable against each accused separately in compliance with theabove guidelines in order to determine whether a conviction formurder can be sustained against them on the basis of commonintention.
Evidence against the 1st accused-appellant
Presence at Siriyawathie’s house on the night of 03.08.97, thelast time the deceased Piyaratne was seen alive:-(Siriyawathie and Oliver De Silva) This would constituteevidence of opportunity only.
Being assaulted by the deceased Piyaratne at Siriyawathie’shouse:- (Siriyawathie) This would constitute evidence ofmotive and provocation only.
utterance to witness Chandrakanthi on the following day04.08.97). This would imply that by the next day after thedisappearance of the deceased, the 1st appellant was awarethat the deceased had died. It may be through his ownpersonal knowledge or from what was told to him by anothersuch as the 2nd appellant. It does not prove beyond
(1st appellant’s

116Sri Lanka Law Reports[2008) 1 Sri L.R
reasonable doubt of the complicity of the 1st appellant in thedeath itself of the deceased.
Recovery of the axe (P3) on the Evidence Ordinance section27 statement (P4) made by the 1st appellant. There is noevidence to connect the axe to the crime. The fact that asharp-cutting weapon was used to kill the deceased does notnecessarily mean that this same axe was used. If humanblood which tallies with that of the deceased was detected onthe axe by the Government Analyst, it would have constituteda strong piece of circumstantial evidence against the 1stappellant. When part of a statement of an accused person isput in evidence under section 27 of the Evidence Ordinance,it is only evidence that the accused knew where the articlediscovered could be found, and nothing more.
H. M. Heen Banda v The Queen (7)
The totality of the above circumstantial evidence certainly doesnot give rise to an irresistible inference that the 1st appellant washarboring a common murderous intention with the 2nd appellant tokill the deceased Piyaratne. Therefore the charge of murder undersection 296 of the Penal Code against the 1st appellant, even onthe basis of common intention, should fail.
Evidence against the 2nd accused-appellant
(1) Evidence of Siriyawathie of the repeated utterances by the2nd appellant as to the deceased leaving the village, that thedeceased will not come back and do not be afraid, and finally theconfession that the 2nd appellant together with the 1st appellantattacked the deceased with a rice-pounder and killed and buriedhim in the marshy canal near their paddy field. In this regard thefollowing salient features have escaped the attention of the learnedtrial Judge.
The existence of a serious doubt as to thecreditworthiness of Siriyawathie.
The alleged rice-pounder has not been recovered.
Though suppressed by Siriyawathie, as the evidencepoints to a sexual intimacy, Siriyawathie had with the 1stappellant and not with 2nd appellant, and as it was the 1stappellant and not the 2nd appellant who intervened to
QAWimalaratne Silva and another v Attorney-General117
(Sarath De Abrew, J.)
save Siriyawathie from the clutches of the deceased onthe night of 03.08.97 and got assaulted by the deceasedinto the bargain, in applying the test of probability andimprobability, it would be more reasonable to presumeunder section 114 of the Evidence Ordinance, that if at alla confession has to be made, in all probability it wouldhave been the saviour the 1st appellant, and not the 2ndappellant, who would intimately disclose the gruesomedetails of the murder to Siriyawathie.
(2) The discovery of the body consequent to informationprovided to the police by Siriyawathie and the 2nd appellant.
This item of evidence, admissible against the 2nd appellantunder section 8(2) of the Evidence Ordinance by way ofsubsequent conduct, would only prove that the 2nd appellant wasaware where the body was buried and nothing more. It does notprove his complicity in the crime beyond reasonable doubt. It wouldvery well be that the 1st appellant or Siriyawathie herself couldhave informed the 2nd appellant where the body was. In view of theabove, a conviction for murder under section 296 of the Penal Codecannot be sustained against the 2nd appellant, even on the basisof common intention.
For the aforesaid reasons the 2nd contention raised on behalf ofthe appellants too should succeed.
In view of the above findings in favour of the appellants withregard to the contentions A and B already dealt with I do notpropose to dwell at length on contention C as to the effect of theaccused persons being seated in wrong places in the dock, exceptto comment that the proper procedure would have been, afterdiscovery of the error, for the learned trial Judge to recall theprosecution witnesses already led and rectify the confusion.Fortunately, the accused persons were known to the witnesses bytheir aliases namely “Appu” and “Putha” which would haveredeemed the situation to a certain extent so as to avoid aconfusion as to the identity of each accused.
However, I cannot refrain from adding a few comments ofdisapproval with regard to the last contention D as to how thelearned trial Judge has misdirected himself on the question ofburden of proof and the application of the El/enborough principle. In
Apparantly, the learned trial Judge was referring to the dictum of
Lord EHenborough in Rexv Cochaine(9) which is followed in our lawand succinctly quoted as follows:-
“When the prosecution establishes a strong and incriminatingcogent evidence against the accused, the accused in thosecircumstances was required in law to offer an explanation of thehighly incriminating circumstances established against him”
Eg:- (1) Sumanasena v A. G. (Supra)
Geekiyanage John Singho v The King 0°)
Sirisena alias Cyril Baas v A. G.(11)

Furthermore, at page 263 of the record, the learned trial Judge
had commented
has again misdirected himself by failing to evaluate the evidentiaryplea of alibi in order to determine whether it would create a doubtin the prosecution case whether the accused persons were presentat the scene at the time of the commission of the offence.
Lionel alias Hitchikolla v A. G.(8)
(Page 262 of the record). The learned trial Judge

learned trial Judge has gravely misdirected himself by imputing aburden on the accused to prove their innocence and to disprove theprosecution evidence. Further, commenting on the evidence of thetwo defence witnesses who have impliedly set up a defence of alibi,
the learned trial Judge has commented.
In other words, the
118Sri Lanka Law Reports[2008] 1 Sri L.R
evaluating the defence evidence, the learned trial Judge hadcommented on the evidence adduced by the accused persons to
the effect that.

CAWimalaratne Silva and another v Attorney-General119
(Sarath De Abrew, J.)
It must be emphasized that the Ellenborough dictum should notbe drawn haphazardly in order to bolster the sagging fortunes of anotherwise weak prosecution case as in the present case.Prosecution should as a pre-requisite establish strong andincriminating evidence against the accused. The rationale behindthis is to afford an opportunity for an innocent accused person toexplain away the circumstances of guilt which was in his own powerto do so. In the present case, the learned trial Judge had failed toperceive, that the chain of circumstantial evidence against theaccused persons was impregnated with lacunas* on several vitalaspects in that it was insufficient to point an unwavering finger ofguilt at the accused on a charge of murder, in which event theevidence falls short of the requirements to apply the Ellenboroughdictum.
On the basis of the above, the contention D too raised on behalfof the appellants has to be resolved in their favour.
It is the paramount duty of courts to act well within the boundsof admissible evidence and not to act on mere conjecture andsurmise. Where the prosecution has failed to establish the chargebeyond reasonable doubt, the benefit of the doubt should alwaysbe given to the accused.
For the foregoing reasons, I allow the appeal and set aside theconviction and sentence under section 296 of the Penal codeimposed on the 1st accused-appellant and the 2nd accused-appellant by the learned High Court Judge of Ampara on18.03.2002 and acquit the accused-appellants of the charge ofmurder under section 296 of the Penal Code.
The registrar is directed to inform the prison authoritiesaccordingly and to forward a copy of this order to the High Court ofAmpara forthwith.
IMAM, J. – I agreeAppeal allowed.