SOMARATNE RAJAPAKSE OTHERS v. HON. ATTORNEY GENERAL (KRISHANTHI KUMARASWAM

009-SLLR-SLLR-2010-V-2-SOMARATNE-RAJAPAKSE-OTHERS-v.-HON.-ATTORNEY-GENERAL-KRISHANTHI-KUMARASWAM.pdf


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Somamtne Rajapakse others v. Hon, Attorney General
(Krishanthi Kumaraswamy Rape Case)
113
SOMARATNE RAJAPAKSE OTHERS V.HON. ATTORNEY GENERAL(KRISHANTHI KUMARASWAMY RAPE CASE)
SUPREME COURT
DR. SHIRANI A. BANDARANAYAKE, J.,EDUSSURIYA, J.,
YAPA, J.,
J.A.N. DE SILVA, J. ANDJAYASINGHE, J.
S.C. APPEAL NO. 2/2002 (TAB)
H.C. COLOMBO NO. 8778/97NOVEMBER 12™, 17™, 27™ AND 28™ 2003
Penal Code – Section 293 – Culpable homicide – Section 294 -Murder – Section 298 – Punishment for murder – Section 32 -Liability for act done by several persons in furtherance ofcommon intention – Section 357 – Kidnapping or abducting awoman to compel or force her to have illicit intercourse or seduceto illicit intercourse – Section 364 – Code of Criminal ProcedureAct – Section 241 – Trial may be held in the absence of accused- Section 450 – Trial at Bar – Evidence Ordinance – Section 25 -Confession made to a police officer not to be proved against anaccused person – Section 27-How much of information receivedfrom accused may be proved.; a fact discovered by reason of suchinformation – Army Act – Military law.
This is an appeal filed in terms of Section 451 (3) of the Code of CriminalProcedure Act against the conviction and sentences imposed by thejudgment of the Trial-at-Bar on the Accused – Appellants [Appellants).
The 1“ to 5th Appellants had made confessions to the Military Policeaccepting their culpability to the offences in question. In addition, theAppellants did not offer any explanation as to how they came to knowindependently of one another, the exact location of where the bodies ofthe four deceased persons and where their clothing were buried.
At the hearing, the Appellants took up the following seven grounds ofappeal;
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Three Judges of the Trial-at-Bar gave three separate Judgmentsindependent of each other without any indication on record thatthere was concurrence or agreement. Accordingly, there was novalid Judgment.
The Trial-at-Bar erred in law by admitting the confessions madeby the Appellants to the Officers of the Militaiy Police when in factthey were obnoxious to Section 25 of the Evidence Ordinance.
The Trial-at-Bar erred in law by effectively inferring guilt of theAppellants from recoveries made in terms of section 27 of theEvidence Ordinance.
The Trial-at-Bar erred in law by placing reliance on photographicevidence to establish identity of the victims.
The Trial-at-Bar erred in law by failing to judicially evaluate theitems of circumstantial evidence.
The Trial-at-Bar erred in law by rejecting the Dock Statementsmade by the Appellants on the basis of a consideration of thecontents of the confessions admitted in evidence.
The Trial-at-Bar erred in law by the addition of a charge of rapefollowing an amendment to the indictment which was illegal andtherefore vitiated the entire proceedings.
Held:
Notwithstanding there were three separate Judgments by thethree Judges, all of them have come to the same conclusion afterconsidering the material individually and collectively. It cannot beaccepted that there was no valid judgment merely because theTrial-at-Bar delivered three separate Judgments.
Considering the powers and the authority the Military PoliceOfficers have over the persons in their custody, combined withthe gravity of the charges, the detention incommunicado, and theinaccessibility to lawyers to practice the rights of such persons intheir custody would be paramount necessity to include a MilitaryPolice Officer also into the definition of “Police Officer” in terms ofSection 25 of the Evidence Ordinance.
Somaratne Rajapakse others v. Hon. Attorney General
SC (Krishanthi Kumaraswamy Rape Case) (Dr. Shirard A. Bandaranayake, J.) 115
Accordingly the confessions made to Military Policy Officers by theAppellants are inadmissible and therefore cannot be used againstthe Appellants.
A vital limitation on the scope of Section 27 of the EvidenceOrdinance is that only the facts which are distinctly related towhat has been discovered would be permitted in evidence. Thereshould be a clear nexus between the information given by theaccused and the subsequent discovery of a relevant fact. Adiscovery made in terms of Section 27 of the Evidence Ordinancediscloses that the information given was true and that the Accusedhad knowledge of the existence and the whereabouts of the actualdiscovery.
The Judges of the Trial-at-Bar had correctly selected the portionof the statement which is distinctly related to the discovery of thebodies of the four persons and their clothing and had deleted theother parts of the statements made by the Appellants.
Taking into consideration the position that there is no principle inthe law of evidence which precludes a conviction in a criminal casebeing based entirely on circumstantial evidence and the fact thatthe Appellants decided not to offer any explanations regarding thevital items of circumstantial evidence led to establish the seriouscharges against them, the Trial-at-Bar has not erred in coming toa finding of guilt against the Appellants.
Per Dr. Shirani Bandaranayake, J., –
“Although there cannot be a direction that the accused personmust explain each and every circumstance relied on by theprosecution and the fundamental principle being that no personaccused of a crime is bound to offer any explanation of hisconduct, there are permissible limitations in which it would benecessary for a suspect to explain the circumstances of suspicionwhich are attached to him.”
On consideration of the Judgments of the Trial-at-Bar, it wouldappear that due consideration has been given to the dockstatements made by the Appellants.
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Section 160 (3) of the Code of Criminal Procedure Act provides thatthe Attorney General has the power to substitute or include in theindictment any charge in respect of any offence, which is disclosedin evidence.
The evidence considered established beyond reasonable doubtthat the Appellants are guilty of the offences with which they havebeen convicted.
Cases referred to:
R. v.Ireland – [1970] 44 A.L.J.R. 263
Lake v. Lake – [1955] 1 AER 538
Rose v. Fernando – (1927) 29 N.L.R. 45
Raj Ram Jaiswal v. State of Bihar- AIR (1964) S.C. 828
Jothi Savant v. State of Mysore – AIR (1976) S. C. 1746
Balakrisnan v. State of Maharastra – AIR (1981) S.C. 379
Mas v. Collector of Customs – AIR (1970) S.C. 1065
Nuge Kanny v. Pables Perera – (1908) 1 Thambiah Raports 25
Videne Arachchi of Kalupe v. Appu Sinno – (1921) 22 N.L.R. 412
Queen v. Rev. H. Gnanaseeha Thero and 21 others – (1969) 73N.L.R. 154
Colombe v. State of Connecticut – (367) US 568
Murugan v. Ramasamy – (1964) 68 N.L.R. 265
R. v. Babu Lai – ILR 6A 509
ThurteU v. Hunt – (1825) Notable British Trials, 145
Piyadasa v. The queen – (1967) 72 N.L.R. 434
Kottaya v. Emperor- (1947) AIR (P.C.) 70
Chakuna Orang v. State of Assam – (1981) Cri. L. J. 166
R. V. Gunaratne- (1946) 47 N.L.R. 145
Queen v. Santin Singho- (1962) 65 N.L.R. 445
R. V. Lord Cochrane – (Gurney’s Reports 479)
R. V. Seedar de Silva-(1940) 41 N.L.R. 337
Premathilake v. The Republic of Sri Lanka-[1972) 75 N.L.R. 506
Somaratne Rajapakse others v. Hon. Attorney General
SC (Krishanthi Kumaraswamy Rape Case) (Dr. Shirani A. Bandaranayake, J.) 117
Richard v. The State – (1973) 76 N.L.R. 534
IttangantiVke v. The Republic of Sri Lanka – (1984) 2 Sri L.R. 38
APPEAL against the conviction and sentences imposed by thejudgment of the Trial-at-Bar.
Ranjith Abeysuriya, P.C., with Thanuja Redrigo for the 1“ Accused -Appellant.
Dr. Ranjith Fernando with Hashini Qunawardene and Himalee Kularatnefor the 2nd, 3"1, 4th and 5“* Accused- Appellants.
C. R. de Silva, Solicitor General, P.C., with Sarath Janamanne, S.S.C. forthe Attorney-General.
Cur.adv.vult.
February 03rd 2004
DR. SHIRANI A. BANDARANAYAKE, J.This is an appeal filed in terms of Section 451 (3) of theCode of Criminal Procedure Act, as amended by Act No. 21of 1988 against the conviction and sentences imposed by thejudgment of the Trial at Bar on the accused-appellants (here-inafter referred to as appellants).
Originally nine accused were indicated on 18 Counts. Ofthe 18 Counts in the indictment 1st to 7th Counts were unlawfulassembly Counts for committing abduction, rape and murderand all the accused-appellants were acquitted on thoseCounts. Therefore the counts that would be material for thepurpose of this appeal are the counts numbers 8 to 18. Theyare as follows:-
Count No. 8 – The accused-appellants abducted KrishanthiKumaraswamy, an offence punishable under Section 357read with Section 32 of the Penal Code.
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Count No. 9 – That the 1st accused-appellant committed rapeon Krishanthi Kumaraswamy, an offence punishable underSection 364 of the Penal Code.
Count No. 10 – That 2nd accused-appellant committed rapeon Krishanthi Kumaraswamy, an offence punishable underSection 364 of the Penal Code.
Count No. 11 – That the 3rd accused-appellant committedrape on Krishanthi Kumaraswamy, an offence punishableunder Section 364 of the Penal Code.
Count No. 12 – That 4th accused-appellant committed rapeon Krishathi Kumaraswamy, an offence punishable underSection 364 of the Penal Code.
Count No. 13 – That 7th accused -appellant (the 5th appellantin this appeal) committed rape on Krishanthi Kumaraswamy,an offence punishable under Section 364 of the Penal Code.
Count No. 14 -The 8th accused-appellant attempted rapeon Krishanthi Kumaraswamy, an offence punishable underSection 364 read with Section 490 of the Penal Code.
Count No. 15 – That they caused the death of KrishanthiKumaraswamy, an offence punishable under Section 296read with Section 32 of the Penal Code.
Count No. 16 – that they caused the death of RasammaKumaraswamy, an offence punishable under Section 296read with Section 32 of the Penal Code.
Count No. 17 – That they caused the death of PranavanKumaraswamy, an offence punishable under Section 296read with Section 32 of the Penal Code.
Somaratne Rajapakse others v. Hon. Attorney General
SC (Krishanthi Kumaraswamy Rape Case) (Dr. Shirani A. Bandaranayake, J.j 119
Count No. 18 – That they caused the death of Kirubamoorthi,an offence punishable under Section 296 read with Section32 of the Penal Code.
One accused, namely, W.S.V. Alwis died during thecourse of the trial, accused D.G.Muthubanda was acquittedat the end of the prosecution case and accused A.P. Nishanthawas acquitted at the end of the trial. The 8th accused, namely,one D.V. Indrajith Kumara was absconding during thecourse of the trial and therefore the trial against himproceeded in absentia, in terms of Section 241 of the Codeof Criminal Procedure Act, No. 15 of 1979. The 18 counts onwhich accused were indicted related to charges of unlawfulassembly and common intention in respect of the offencesof abduction, rape and murder. These charges related to theabduction, rape and murder of Krishanthi Kumaraswamy,murder of Rasamma Kumaraswamy, murder of PranavanKumaraswamy and murder of Kirubamoorthi. RasammaKumaraswamy and Pranavan Kumaraswamy were the motherand the brother respectively of Krishanthi Kumaraswamyand Kirubamoorthi was a neighbour as well as a friend ofKumaraswamy family.
At the conclusion of the Trial at Bar, the 1st appellant wasfound guilty of charges relating to abduction (Krishanthi),rape (Krishanthi) and murder (Krishanthi, Rasamma,Pranavan and Kirubamoorthi) and was sentenced to 10years rigorous imprisonment on the abduction charge and afine of Rs. 50,000/- with a default term of 2 years rigorousimprisonment (Court 8), 20 years rigorous imprisonmenton the rape charge (Count 9) and the death sentence on themurder charges (Counts 15, 16, 17 and 18).
The 2nd appellant was found guilty of charges relatingto rape (Krishanthi) and murder (Krishanthi, Pranavan andKirubamoorthi) and was sentenced to 20 years rigorous
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imprisonment on the rape charge (Count 10) and the deathsentence on the murder charges (Counts 15, 17 andl8).
The 3rd appellant was found guilty of charges relatingto abduction (Krishanthi), rape (Krishanthi) and murder(Krishanthi) and was sentenced to 10 years rigorous impris-onment on the abduction charge and a fine of Rs. 50,000/-with a default term of 2 years rigorous imprisonment(Count 8), 20 years rigorous imprisonment on the rape charge(Count 11) and the death sentence on the murder charge(Count 15).
The 4th appellant was found guilty of charges relating toabduction (Krishanthi) rape (Krishanthi) and murder (Pranavanand Kirubamoorthi) and was sentenced to 10 years rigorousimprisonment on the abduction charge and a fine ofRs. 50,000/-with a default term of 2 years rigorous imprison-ment (Court 8), 20 years rigorous imprisonment on the rapecharge (Count 12) and the death sentence on the murdercharges (Counts 17 and 18).
The 5th appellant was found guilty of charges relatingto rape (Krishanthi) and murder (Rasamma, Pranavan andKirubamoorthi) and was sentenced to 20 years rigorousimprisonment on the rape charge (Count 13) and the deathsentence on the murder charges (Courts 16, 17 and 18).
The 1st appellant was a Lance Corporal attached to theSri Lanka Army serving in Jaffna. On the day of the incident,viz., 07.09.1996, he was assigned to the Chemmuni SecurityCheck Point. The 2nd and 4th appellants were soldiers ofthe Sri Lanka Army who had been assigned duties at theChemmuni Security Check Point whereas the 3rd appellantwas a Reserve Constable who had been assigned duties at
Somaratne Rajapakse others v. Hon. Attorney General
SC (Krishanthi Kumaraswamy Rape Case) (Dr. Shtrani A. Bandaranayake, J.) 121
the said check point. The 5th appellant was a Corporal ofthe Sri Lanka Army who had been assigned to the ForwardDefence Line which was situated about 50 meters away fromthe Chemmuni Security Check point.
At the time of the incident which took place in 1996,Krishanthi Kumaraswamy was eighteen years old and wassitting her General Certificate of Education (Advanced Level)Examination from Chundikuli College, Jaffna. She has losther father in 1984 and lived with her mother Rasamma andyounger brother Pranavan in Kaithadi South. Her elder sister,Prashanthi, was resident in Colombo. Krishanthi had beendecribed as an intelligent student who had obtained sevenDistinctions and one Credit Pass at the General Certificate ofEducation (Ordinary Level) Examination.
Rasamma Kumaraswamy was 59 years of age at the timeof her death. She was a Graduate and a former Principalof Kaithadi Muthukumaraswamy Maha Vidyalaya and wasteaching at Kaithadi Maha Vidyalaya at the time of herdeath.
At the time this incident took place, Pranavan was abright student aged sixteen years and studying at St. John’sCollege, Jaffna.
Siddambaram Kirubamoorthi was a close friend of theKumaraswamy family who had assisted them and was workingat the Co-operative Stores.
(A) The case for the prosecution
On the day of the incident, viz., 7th September 1996,Krishanthi left home on her bicycle to sit for her ChemistryMultiple Choice question paper at Chundikuli College. She
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was dressed in her white school uniform, red tie with socksand shoes. After handing over her answer script to theSupervisor sometime sifter 11.30 a.m., she had left theExamination Hall. Thereafter Krishanthi, with her classmateand friend Sundaram Gautami, went on their bicycles to thehouse of a deceased colleague to pay their last respects. Thesetwo girls had left the said funeral house around 12.30 p.m.and had parted company at a junction. Krishanthi was lastseen cycling towards Kaithadi along the road where she hadto pass the Chemmuni Check Point. When Krishanthi wascycling past the Chemmuni Security Check Point, she wasordered by the 1SI appellant to stop on the pretext of wantingto question her. On obeying his orders, she alighted from herbicycle and then Krishanthi was taken inside a bunker, anda piece of cloth was tied around her mouth.
Due to the delay in her daughter’s return after theexamination, her mother Rasammaleft home around 2.30 p.m.in search of her, after making inquiries from the neighbours.Pranavan and Kirubamoorthi accompanied her. They had lefton two bicycles, one being Pranavan’s black bicycle, whichhad a chain case with a special badge commonly knownas ‘the Honda badge’. They had arrived at the ChemmuniSecurity check point and inquired from the military personnelabout Krishanthi. However, the 1st appellant had denied anyknowledge of Krishanthi’s whereabouts.
At that time Rasamma, Pranavan and Kirubamoorthiinsisted on finding Krishanthi. The 1st appellant who did notwant the matter being reported to higher authorities hadtaken the three of them inside a bunker and detained themforcibly. In the night, the appellant had strangled the twomen (Pranavan and Kirubamoorthy) with a rope and buried
Somaratne Rajapakse others v. Hon. Attorney General
SC (Krishanthi Kumaraswamy Rape Case) (Dr. Shirani A. Bamdaranayake, J.) 123
the two bodies behind the Security Check Point. Their clotheswere buried in a separate pit. Rasamma was also murderedand buried in the same manner. Krishanthi was. rapedcontinuously by the appellants and murdered in the sameway as was done with the other three. Her body was put in apit behind the Security Check Point.
Sometime later the Army Authorities had receivedan anonymous petition regarding four missing civilians.Thereafter an inquiry commenced and the persons who wereassigned to Chemmuni Security Check Point were interrogatedand consequently four decomposed bodies together withitems of clothing were exhumed from a point close to the saidChemmuni Security check Point.
The 1st, 2nd, 3rd, 4th and 5th appellants had madeconfessions to the Military Police accepting their culpabilityto the offences in question. In addition the appellants did notoffer any explanation as to how they came to know indepen-dently of one another the exact location of where the bodies ofthose four persons and their clothing were buried.
At the hearing of this appeal, seven grounds of appealwere taken on behalf of the appellants. They are as follows
Three Judges of the Trial at Bar gave separate judgmentsindependent of each other without any indication onrecord that there was concurrence or agreement andtherefore there was no valid judgment of the Trial atBar.
Trial at Bar erred in law by admitting the confessionsmade by the appellants to the Officers of the MilitaryPolice when in fact they were obnoxious to Section 25 ofthe Evidence Ordinance.
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The Trial at Bar erred in law by effectively inferringguilt of the appellants from recoveries made in terms ofSection 27 of the Evidence Ordinance.
The Trial at Bar erred in law by placing reliance onphotographic evidence to establish identity of thevictims.
The Trial at Bar erred in law by failing to judicially evaluatethe items of circumstantial evidence.
The Trial at Bar erred in law by rejecting the DockStatements made by the appellants on the basis of aconsideration of the contents of the confessions admittedin evidence.
The Trial at Bar erred in law by the addition of a chargeof rape following an amendment to the indictment whichwas illegal and therefore vitiated the entire proceedings.
It was contended that if the appellants were successfulon the first ground of appeal, the trial would stand vitiatedand the trial would have to be taken de novo. In respect ofthe other grounds, it was contended that if the appellantswere successful, the convictions and sentences against theappellants should be set aside and they be acquitted.
Ground 1
Three Judges of the Trial at Bar gave three separatejudgments independent of each other without anyindication on record that there was concurrence oragreement and therefore there was no valid judgment ofthe Trial at Bar.
The appellants contended that they expected the threeJudges of the Trial at Bar sitting together ‘to jointly hear,consider and evaluate the evidence led’, and to come to a
Somaratrve Rajapakse others v. Hon. Attorney General
SC (Krishanthi Kumaraswamy Rape Case) (Dr. ShiraniA. Bandaranayake, J.) 125
finding jointly. It was submitted that in this case the threeJudges of the Trial at Bar have written three separate judg-ments totally independent of one another and had signedseparately even making reference to their respective HighCourt stations in their judgments. Learned Counsel for theappellants further submitted that although the final findingsin respect of the guilt of the appellants are the same in eachjudgment, on an interpretation of strict legal principles, it isnot a valid and proper judgment of the Trial at Bar in respectof the appellants an therefore this case should be sent backfor a trial de novo.
Halsbuiy’s Laws of England (Vol, 26 -4th Edition pg. 237)defines the meaning of a judgment as ‘any decision given by aCourt on a question or questions at issue between the partiesto a proceeding properly before the Court.’ In R v. Ireland wit was stated that,
“In a proper use of terms the only judgment given by aCourt is the order it makes. The reasons for judgment arenot themselves judgments though they may furnish theCourt’s reason for decision and thus form a precedent.”
Discussing the reserved judgments in the House ofLords, Michael Zander (The Law Making Process, 4th edition,Butterworths pg. 283) point out that there could be a singlejudgment or separate judgments where there are disagree-ments. However, he has clearly pointed out that even whenthe Judges wholly or mainly agree with both the result andreasons still they write their own separate judgments.
The decision in Lake v Lake (2) again referred to thejudgment or order as one which means the final judgmentor order which is drawn up and not the reasons given by
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the judge for the conclusion at which he arrives. Stroud’sJudicial Dictionary of words and phrases described ajudgment’ as the sentence of the law pronounced by theCourt upon the matter contained in the record. (5th Edition,Volume III, pg. 1374).
In this case three Judges of the Trial at Bar had arrivedat the same conclusion for different reasons. It would ap-pear that they had individual and different approaches whenthey considered the evidence individually and had evaluatedvarious issues that arose in the course of the trial. Althoughthere were there separate judgments written by the threeJudges, all of them have come to the same conclusion, afterconsidering the material individually and collectively. Thereforeon a close examination of the three judgments it would notbe a fair assessment to say that the three Judges have giventhree judgments in isolation without any indication on recordthat there was concurrence and agreement.
Further considering the legality of a judgment based onthe aforementioned authorities it cannot be accepted thatthere was no valid judgment merely because the Trial at Barhad delivered three separate judgments.
Ground 2:
Trial at Bar erred in law by admitting the confessionsmade by the appellants to the Officers of the MilitaryPolice when in fact they were obnoxious to Section 25 ofthe Evidence Ordinance.
The contention of the learned Counsel for the appellantsis that certain statements made by the appellants to thepersonnel of the Military Police have been admitted inevidence and acted upon by the Trial at Bar, holding that
Somaratne Rajapakse others v. Hon. Attorney General
SC (Krishanthi Kumamswamy Rape Case) (Dr. Shirani A Bandaranayake, J.) 127
a Military Police Officer would not come within the scope ofthe definition of a Police Officer in terms of Section 25 of theEvidence Ordinance.
It is not disputed that the confessionary statements ofthe appellants were recorded in the presence of Military Po-lice Officers under the supervision of Major Podiralahamy andLt. Col. Kalinga Gunaratne.
Section 25 of the Evidence Ordinance is in the followingterms:
"No confession made to a Police Officer shall be proved as
against a person accused of any offence. ”
It is to be noted that the Evidence Ordinance does notdefine the term Police Officer. The Police Ordinance definesthe terms to mean a member of the regular Police Forceand includes all persons enlisted under that Ordinance. Onthe other hand the Code of Criminal Procedure Act, No. 15of 1979 refers to a Police Officer to mean a member of anestablished Police Force and includes Police Reservists.Learned Solicitor General for the Attorney General Contendedthat a public Officer empowered with certain police powersdoes not, by that fact alone, become a Police Officer withinthe meaning of Section 25 of the Evidence Ordinance. Herelied on the decision in Rose v. Fernando(3) Learned Solici-tor General also drew our attention to the provisions in theArmy Act and submitted that a Military Police Officer, whofor the purpose of the Army act is an Army Officer who enjoysno more powers than those enjoyed by excise and customsofficers. The contention of the learned Solicitor General wasthat the Military Police is a unit in the. Army establishedfor the purpose of performing certain administrative and
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disciplinary functions within the Army. His position was thatunder the Army Act there is no distinction between mili-tary police officers and other Army Officers as all the powersenjoyed by the Officers of the Military Police are the powersthat have been conferred in general on all Army personnel.Learned Solicitor General cited an example where in terms ofthe Army Act and Regulations made under that Act, a MilitaryOfficer arresting a person subjected to the Army Act woulddo so on the general powers that have been conferred to theArmy personnel. He also submitted that a Military PoliceOfficer does not have the authority that an ordinary PoliceOfficer would exercise in a criminal investigation.
It was also contended by the learned Solicitor Generalthat if the legislature intended to expand the meaning of“Police Officer’ in terms of Section 25 of the EvidenceOrdinance to include Public Officers conferred with limitedpowers with regard to arrest, detention and search, that couldhave been done under Section 25(2) of the Evidence Ordinancein the same manner where confessions made to ExciseOfficers and Forest Officers become inadmissible. Thereforehe submitted that the Courts should be mindful of themanifest intention on the part of the Legislature to restrictthe unqualified expansion of the term Police Officer andtherefore, the Court must give a narrow interpretation tothis terms. In support of this contention learned SolicitorGeneral cited several Indian Authorities (Raj Ram Jaiswal v.State of Bihar Jothi Savant v. State of Mysore, Balakrisnanv. State of Maharastra[6 Mias v. Collector of Customsi*71.
It was also the submission of the learned SolicitorGeneral that the Army Act was enacted after the decisionin Rose v. Fernando (Supra) aijd that the amendment toSection 25 of the Evidence Ordinance does not provide for
Somaratne Rajapakse others v. Hon. Attorney General
SC (Krishanthi Kumaraswamy Rape Case) (Dr. Shirard A. Bandaranayake, J.) 129
the exclusion of confessions made to an Officer of the Militarypolice or any other Army Officer exercising authority over aperson making a confession. He drew our attention to PartXI of the Army Act, which deals with the rules of evidenceapplicable to a Court Marshal. His position is that this partdoes not directly or indirectly equate a Military Police Officeror any other Army Officer to a Police Officer for the purposeof Section 25 of the Evidence Ordinance. The contention ofthe learned Solicitor General is that at the time the Army Actwas enacted in 1949, if the legislature intended to excludeconfessions made to Military Police Officers and other ArmyOfficers in authority, the legislature would have included anexclusionary provision in Part XI of the Army Act. Thereforesuch a deliberate omission clearly demonstrates the intentionof the legislature to permit the admissibility of confessionsmade to Military Police Officers at a Court Marshal.
On the other hand learned Counsel for the appellants con-tended that the legislature did not define the term ‘Police Offi-cer’ in the Evidence Ordinance advisedly to enable the Courtsto give broader interpretations with a view to enhancingthe liberty of a suspect. Several decisions of the SupremeCourt were cited where this rationale was accepted. In NugeKanny v Pables Perera (8) and in Vtddne Arachchi of Katupev Appu Sinno (9> it was held that a confession to a Mudali-yar, who held an inquiry, was a Police Officer. It is of inter-est to note that in Nuge Kanny v Pables Perera (supra) theMudaliyar had held the departmental inquiry against a PoliceVidane. In this case, in the course of the judgement, WoodRention, J. stated that,
“ It is of great moment that both the spirit and the letter of
that section should be maintained, and I think it applies
to headmen of all grades as well as Police Officers within
the strict meaning of the term”.
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In Rose v Fernando (Supra) although it was held thata confession made to an Excise Officer was inadmissible,Schneider, J. was categorical that the expression ‘Police Officer’in the Evidence Ordinance should be construed not inany technical sense, but giving it a more comprehensivesignificance. A similar view was expressed by Gavin J. in Rosev Fernando (Supra) where he stated that,
“The term ‘Police Officer’ ordinarily means a member ofan established Police Force; as used in Section 25 of theEvidence Act it may legitimately be applied to officers ofGovernment who are authorized generally to act as PoliceOfficers and are charged with performance of the dutiesand armed with the powers of a Police Officer. In short,who are, as my Lord has said in his Judgement, PoliceOfficers in everything but name.”
A similar view has been taken by the Indian Courts,with regard to Section 25 of the Indian Evidence Ordinancewhich was the model Ordinance for our Evidence Ordinanceenacted in 1895. For instance, in Raj Ram Jaiswal v State ofBihar (supra), Mudholkar, J. was of the view that, the test fordetermining whether a person is a public officer in terms ofSection 25 of the Evidence Ordinance would be whether thepower of a Police Officer is conferred on him or whether heis in a position to exercise such power. In Rai Ram’s case hewent on to state that,
“In other words, the test would be whether the powersare such as would tend to facilitate the obtaining by himconfession from a suspect or a delinquent. If they do, then itis unnecessary to consider the dominant purpose for whichhe is appointed or the question as to what other powershe enjoys. These questions may perhaps be relevant
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SC (Krishanthi Kumaraswamy Rape Case) (Dr. Shirani A Bandaranayake, J.) 131
for consideration where the powers of a Police Officerconferred upon him are of a very limited character andare not by themselves sufficient to facilitate the obtainingby him of a confession.”
A close analysis of the Sri Lanka cases including Rosev Fernando (supra) would show that the line of thinking ofthe contents of Section 25 of the Sri Lanka Evidence Ordi-nance does not differ much from the test propounded byMudholker, J. in Raj Ram’s Jaiswal v State of Bihar (Supra).
In the light of the above it would now be appropriateto consider the rationale for excluding statements made toPolice Officers. This has been clearly explained and set out inour case law.
In Queen v Rev. H. Gnanaseeha Thero and 21 others ,10)the Court considered the evidence in regard to the circum-stances under which the accused made their statements tothe Police. The decision of Frankfurtur, J. in Colombe v. Stateof Conncticut(111 where it was stated that,
“The prisoner knows this – knows that no friendly ordisinterested witness is present – and the knowledgemay itself induce fear. But, in any case, the risk is greatthat the Police will accomplish behind their closed doorprecisely what the demands of our legal order forbid:make a suspect the unwilling collaborator in establishinghis guilt. This they may accomplish not only with theropes and a rubber hose, not only by relay questioningpersistently, insistently subjugating a tired mind, but bysubtler devices.
In the Police Station a prisoner is surrounded by knownhostile forces. He is disoriented from the world he knows
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and in which he finds support. He is subject to coercingimpingements,undermining even ifnotobviouspressures-of every variety. In such an atmosphere, questioningthat is long continued – even if it is only repeated atintervals, never protracted to the point of physical ex-haustion – inevitably suggests that the questioner hasa right to, and expects, an answer. This is so, certainly,when the prisoner has never been told that he need notanswer and when, because his commitment to custodyseems to be at the will of this questioners, he has everyreason to believe that he will be held and interrogateduntil he speaks.”
In Murugan Ramaswamy,ia* Viscount Radcliffe deliveringthe opinion of the Judicial Committee of the Privy Councilreferred to the policy in excluding in evidence confessionsmade to Police Officers. He observed that,
“There can be no doubt as to what is the general purposeof Sections 25 and 26. It is to recognize the dangers ofgiving credence to self – incriminating statements made topolicemen or made while in police custody, not necessarilybecause of suspicion that improper pressure may havebeen brought to bear for the purpose of securing convic-tions. Police authority itself, however carefully controlled,carries a menace to those brought suddenly under itsshadow; and these two Sections recognize and provideagainst the danger of such persons making incriminatingconfessions with the intention of placating authority andwithout regard to the truth of what they are saying.”
The appellants, as pointed out earlier had madecertain statements which were confessions by their natureto the Military Police Officers in the Army were admitted in
Somaratne Rajapakse others v. Hon. Attorney General
SC (Krishanthi Kumamswamy Rape Case) (Dr. Shirani A. Bandamnayake, J.) 133
evidence in the Trial at Bar. Learned Counsel for the appellantshad raised objections regarding the admissibility of theconfessions to Military Officials on the ground that theycannot be admitted as evidence in violation of Section 25 ofthe Evidence Ordinance. The Trial at Bar made order thatthose statements made to the Military Police Officers wereadmissible if they were made ‘freely and voluntarily’ in termsof Section 24 of the Evidence Ordinance. Consequently a voir- dire inquiry was held in view of the objections taken bythe appellants regarding the admissibility of the confessionsmade by the appellants. The Trial at Bar held that confessionsmade to the Military Police Officers are admissible as theMilitary Police Officer would not come within the definitionof a Police Officer in terms of Section 25 of the EvidenceOrdinance.
The Army Act in Part VII defines persons subject toMilitary Law and Section 34 states that,
*For the purpose of this Act, 'person subject to Military
Law’ means a person who belongs to any of the following
classes of persons:-
all officers and soldiers of the Regular Force;
all such officers and soldiers of the Regular Reserve,volunteer Force, or Volunteer Reserve, as are deemedto be officers and soldiers of the Regular Force undersubsection (3) of Section 3. ”
Section 35 of the Army Act refers to custody of thepersons who are subject to Military Law and the descrip-tion of the. custodians are given in Section 37. According toSection 35 of the Army Act, if a person subject to MilitaryLaw has committed any military or civil offence he may be
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taken into military custody. It is to be noted that the Code ofCriminal Procedure Act, which deals with the procedureregarding arrest has provided for more restricted powers inarresting a person by defining the offence into cognizableand non-cognizable offences. Provision has also being madethat in order to arrest a person in certain circumstances, it isnecessary to obtain a warrant from a Judicial Officer therebynecessitating the intervention of the Judiciary. An examinationof the provisions of the Army Act reveals that on a comparisonwith the provisions of the Code of Criminal Procedure Act,there are no such restrictions with regard to the power ofMilitary Police Officers to arrest persons. Accordingly itappears that the Military Police have more power over arreststhan the regular police officers.
Moreover it is also to be noted that when a MilitaryPolice Officer has arrested a person subject to the MilitaryLaw the commanding officer of that Military Police Officersshall without unnecessary delay investigate the charge onwhich the person is in such custody. According to Section 39of the Army Act, the Military Police could keep a person underthe Millitary Law in detention up to a period of seven days,whereas a Police Officer could only keep a suspect in custodyfor a maximum period of 24 hours prior to producing himbefore the nearest Magistrate.
The effect of all these provisions under the Army Act isthat the Military Police Officers have far greater powers inrespect of the persons arrested under the Millitary Law thanthe powers vested in Police Officers with regard to personskept in their custody.
It was disclosed that the confessionary statements of theappellants were recorded in the presence of Military Police
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SC (Krishanthi Kumaraswamy Rape Case) (Dr. Shirani A. Bandamnayake, J.) 135
Officers in charge and under the supervision of MajorPodiralahamyandLt. Col. KalingaGunaratne. An examinationof the evidence reveals that the appellants had beenquestioned for an hour and at the time when the appellantswere interrogated, they were ordered to remove their caps andbelts. Learned Counsel for the appellants regarded this as theusual practice of a ‘symbolic stripping of power and authorityof the person before interrogation.’
Section 25 of the Evidence Ordinance in my view is abroadly worded section and it absolutely excludes fromevidence a confession made by an accused to a PoliceOfficer while in his custody. The circumstances in whichsuch a confession was made is irrelevant for this purpose.Mohomood, J. in R v Babu Lal{13) stated that,
“The legislature had in view the mal-practices of PoliceOfficers in extorting confessions from accused personsin order to gain credit by securing convictions and thosemal-practices went to the length of positive torture.”
These observations as well as the observations madeby Frankfurtur, J. in Colombe v State of Connecticut (Supra)highlights the desirability in excluding statements madeto Police Officers or Officers who have certain powers andauthority over accused persons in their custody. Consideringthe powers and the authority the Military Police Officers haveover the persons in their custody, combined with the gravityof the changes, the detention incommunicado, and theinaccessibility to lawyers to practice the rights of suchpersons in their custody would be a paramount necessityto include a Military Police Officer also into the definitionof “Police Officer’ in terms of Section 25 of the EvidenceOrdinance.
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Accordingly the confessions made to Military Police Of-ficers by the appellants in this case are inadmissible andtherefore cannot be used against the appellants.
Ground 3
The Trial at Bar erred in law by effectively inferringguilt of the appellants from recoveries made in terms ofSection 27 of the Evidence Ordinance.
Learned Counsel for the appellants contended that therewas inadequate application of the principles of law relatingto the concept of admissibility of a statement made interms of Section 27 of the Evidence Ordinance by the Trialat Bar. According to the learned Counsel it is necessary toobserve certain basic criteria before there is an admission of astatement under Section 27 of the Evidence Ordinance. Onesuch criteria would be that, a recovery or a discovery is nota relevant fact and would not be admissible under Section27 of the Evidence Ordinance, if such recovery or discoveryhad been shown by another person on a previous occasionand therefore the place in question was known to the Policepreviously. It was also contended that in the Judgment (Vol. I),President of the Trial at Bar had correctly stated that the onlyinterference that could be drawn from the Section 27 statementas to where the bodies were buried is the “knowledge’ of thewhereabouts of the deceased. Later the president of the Trialat Bar, according to the learned Counsel for the appellant,had gone on to say that recoveries based on Section 27statement is an important factor in dealing with the guilt orthe innocence of the accused and that the murderous intentof the accused is clearly established by the recoveries madein term of Section 27.
Somaratne Rajapakse others v. Hon. Attorney General
SC (Krishanthi Kumaraswamy Rape Case) (Dr. ShimniA. Bandaranayake, J.) 137
Learned Counsel for the appellants also strenuouslyargued that when one of the appellants were taken to theplace in question to show where the bodies were buried,the same place had already been shown earlier by anotherappellant.
Section 27 of the Evidence Ordinance, which comesunder the caption admissions and confessions deals withhow much of such information received from accused may beproved against them and is in the following terms:
“27(1) Provided that, when any fact is deposed to asdiscovered in consequence of information received from aperson accused of any offence, in the custody of a PoliceOfficer, so much of such information, whether it amounts toa confession or not, as relates distinctly to the fact therebydiscovered may be proved. ”
The rationale underlying the proviso contained isSection 27 of the Evidence Ordinance was analysed is Thurtetlv. Hunt ,14) by Baron Parke where he made the followingobservation:
“A confession obtained by saying to the party, youhad better confess or it. will be the worse for you’ is notlegal evidence. But, though such a confession is notlegal evidence, it is everyday practice that if, in the courseof such confession, that party states where stolen goodsor a body may be found and they are found accordingly,this is evidence, because the fact of the finding proves thetruth of the allegation, and his evidence in this respect isnot vitiated by the hopes or threats that may have beenheld out to him.”
A discovery made in terms of Section 27 of the EvidenceOrdinance discloses that the information given was true and
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that the accused had the knowledge of the existence and thewhereabouts of the actual discoveiy. Therefore as has beenadopted by T. S. Fernando, J. in Piyadasa v. The Queen,IS>following the Indian decision in Kottaya v. Emperor,16) that ifa fact is actually discovered in consequence of informationgiven, some guarantee is afforded thereby that the informationwas true’. It was therefore held that such information couldbe ‘safely allowed to be given in evidence’.
A Tact’ has been defined is Section 3 of the EvidenceOrdinance to mean and includes’
anything, state of things or relation of things capable of
being perceived by the senses; and
any mental condition of which any person is conscious.
This indicates that the definition given to the term Tact’is of extensive scope and would embrace both material andpsychological facts.
Considering the evidence that was admitted by the Judgesof the Trial at Bar, it is clear that there had been no suchmisdirection in dealing with the evidence pertaining to thediscovery in terms of Section 27 of the Evidence Ordinance.
The President of the Trial at Bar had identified as itemNo. 5 the recovery of bodies and the clothes of the deceasedpersons which were recovered on the basis of the statementsmade by the 1st, 2nd, 3rd and 4th appellants. He has verycorrectly pointed out that the statements of the appellants canbe used only for the purpose of showing that the appellantshad only the knowledge of the existence and whereabouts ofsuch items. The President of the Trial at Bar had categoricallystated that the relevant statements cannot be used for any
Somaratne Rajapakse others v. Hon. Attorney General
SC (Krishanthi Kumaraswamy Rape Case) (Dr. Shirani A. Bapdaranayake, J.) 139
other purpose. The other Judges too refer to the statementsmade by the appellants leading to the discovery of the bodiesof the four persons and stated that the appellants had onlythe knowledge as to where the four bodies were buried.
A vital limitation on the scope of Section 27 of theEvidence Ordinance is that only the facts which are distinctlyrelated to what has been discovered would be permitted onevidence. It is well settled law that there should be a clearnexus between the information given by the accused andthe subsequent discovery of a relevant fact. Also it would benecessary to select the portion of the statement which isdistinctly related to the discovery of a relevant fact. Discussingthese distinct issues Prof. G. L. Peiris had stated that, (Law ofEvidence, pg. 179).
“The issue of admissibility necessitates selection of thatportion of the statement which is distinctly related to thediscovery of a relevant fact, and the deletion of all otherparts of the statement.made by the accused. This was theproblem with which the Court was confronted in a caselike Justin Perera (supra) and Albert (supra) where theaccused states, for example, that he raped the girl andthrew the sarong containing blood and seminal stainsinto a ditch where the item of clothing was subsequentlydiscovered, only the portion of the statement dealing withthe throwing of the sarong into the ditch, and not the firsthalf of the statement which contains a confession thatthe accused committed rape, may be admitted againsthim in terms of Section 27.”
The three Judges of the Trial at Bar, it should benoted, had quite correctly selected the portion of the statementwhich is distinctly related to the discovery of the bodies of
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the four persons and their clothing. Moreover, the judgmentsare clear on the fact that they have deleted the other partsof the statements made by the appellants and consideredonly the relevant portion. In such circumstances it would notbe correct to say that Trial at Bar erred in dealing with theevidence pertaining to discovery made under Section 27 ofthe Evidence Ordinance.
Ground 4
The Trial at Bar erred in law by placing reliance on photo-graphic evidence to establish identity of the victims.
At the out set learned Counsel for the appellants raisedthis point as one of the grounds on which he was challeng-ing the decision of the Trial at Bar. However, subsequentlyhe informed Court that he is not pursuing this objection. Inthe circumstances, I am of the view that it is unnecessary toexamine this ground of appeal any further.
Ground 5
The Trial at Bar erred in law by failing to judicially evaluatethe items of circumstantial evidence.
Learned Counsel for the appellants contended thatthe Trial at Bar has not indulged in the necessary exerciseof a judicial evaluation of the items of circumstantial evidenceindependent of the confessions to ascertain whether suchitems of circumstantial evidence would be sufficient toestablish the culpability or the guilt of the appellantsbeyond reasonable doubt. His position is that the Judgeshad evaluated the items of circumstantial evidence inrelation to the confessions made to the Military Police.
Somaratne Rajapakse others v. Hon. Attorney General
SC (Krishanthi Kumaraswamy Rape Case) (Dr. Shirard A. Bandaranayake, J.) 141
Learned Counsel for the appellants therefore contended thatthe Trial at Bar erred thereby and the resulting position beingif the confessions are ruled inadmissible, there is no judicialevaluation of any other evidence available and hence therecannot be a conviction of the appellants.
Circumstantial evidence is evidence of facts where theprincipal or the disputed fact, or fuctum probandum could beinferred. In Chakuna Orang v. State of Assam,17) describingcircumstantial evidence it was stated that,
“Evidence which proves or tends to prove the factumprobandum indirectly by means of certain inferences ofdeduction to be drawn from its existence or its connectionwith other facts probanda' it is called circumstantialevidence.”
On a consideration of the judgments of the Trial at Bar,it is not correct for the learned Counsel for the appellantsto have submitted that the circumstantial evidence has notbeen judicially analysed and evaluated by the Trial at Bar.
The President of the Trial at Bar, in his judgment frompg. 17 to pg. 25 has considered the items of circumstan-tial evidence. Similarly the other two members of the Courthave evaluated the circumstantial evidence in their separatejudgments (Judgment No. II pg. 26 – 49 and 52 – 77,Judgment No. Illpg. 135- 157). Consequently, independent ofthe confessions of the appellants made to the Military Policy,the following items were considered as circumstantialevidence.
Witness Samarawickrama (RPC 34102), was on dutyat Chemmuni Security Point No. 2 which was about half akilometer away from the Chemmuni Security Check point
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where the 1st, 2nd, 3rd and 4th appellants were assigned forduty on 07.09.1996. Samarawickrama was conversantin Tamil. Around 2.00 p.m. on the day in question, the 1stappellant had sent a message informing him that it wasnecessary to question a LTTE suspect who spoke in Tam-
il.Therefore when he visited the Chemmuni Check point agirl in her school uniform was seated on a chair. Her hands,legs and mouth were tied. The 1st and 4th appellants werealso present at the check point at that time. On being ques-tioned, the girl identified herself as Krishanthi Kumaraswamystudying at Chundukuli College. On the instructions of the1st appellant, when she was asked as to whether she has anyconnections with the LTTE, she had stated that she obtainedseven Distinctions at her ordinary Level Examination andhad queried, as follows:
“why are you treating me like this? We came here trustingyou all.’
Thereafter the girl had started shouting and the 1stappellant had informed Samarawickrama to leave. A photo-graph of the deceased was shown to the witness Samara-wickrama which he identified as the person with whom hehad spoken to on 07.09.1996 at the Chemmuni Check Point.Around 3.00 p.m. on the same day a middle aged womanwith two men had come to check point No. 2 in search of agirl. The woman had told Samarawickrama that her daughterwho went to school had not returned and inquired wheth-er a school girl had been arrested at the check point. WhenSamarawickrama denied such an arrest. She thanked himand left the place with the other two persons. Saarawickramahad identified the photographs marked as P2, P3 and P4which were the photographs of Pranavan, Kirubamoorthi andRasamma respectively as the persons who had inquired frominquired from him about the missing school girl.
Somaratne Rajapakse others v. Hon. Attorney General
SC (Krishanthi Kumaraswamy Rape Case) (Dr. Shirard A. Bandaranayake, J.) 143
About 6.00 p.m. on the same day Samarawickramaheard that the three persons whom he had met in the earlyafternoon that day were detained at the Chemmuni SecurityCheck Point. On hearing this Samarawickrama has senta message to one Corporal Ajith Asoka who was in chargeof the Check Point No. 3 which was about half a kilometeraway from the Check Point No. 2 to intervene and rescue thepersons who were detained at Chemmuni Check Point.According to Samarawickrama Corporal Ajith Asoka wassenior in rank to the 1st appellant.
When the request was made to hand over the personswho were looking for a missing girl both by Asoka andSamarawickrama the 1st appellant had turned down theirrequests. The 1st appellant had further stated that theMilitary Police had also learnt about the said people detainedand therefore he would look after them. Samarawickrama’sversion had been corroborated by Corporal Asoka.
In consequence of the information provided by the 1st,2nd, 3rd, and 4th appellants bodies of the four deceased personswith their clothing were recovered by Inspector Senarath.According to Inspector Senarath, four appellants hadseparately shown the places where the bodies were buriedThis exercise was carried out in the presence of the Magistrate,Jaffna.
The body of the deceased Rasamma was identified byher sister and brother on the basis of a surgical scar thatwas found immediately below her navel. The saree worn byRasamma on that fateful day was also identified by her sisteras belonging to Rasamma. A gold chain which was with theIs* appellant was taken by the Prison Authorities and hadgiven it to his brother who had later given it to his sister
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Rohini who had pawned the same at the Mawathagama Ru-ral Bank. The brother and the sister of 1st appellant identi-fied the chain marked Pll as the chain that was given tothem by the prison Authorities. The sister of Rasamma iden-tified this chain as the chain that belonged to the deceasedRasamma. According to her Rasamma always wore this chain.The 1st appellant had given no explanation at to how thischain which was ‘regularly worn’ by the deceased Resammacame into his possession.
Nagendra Sashideran who gave evidence in this casehad stated the Pranavan has fixed a badge which had theletters to read as “HONDA” in his cycle. Pranavan was lastseen searching for his sister and at that time he was on thiscycle.
A bicycle chain case with a Honda Badge was found ata point close to the place of the incident. Sashideran in hisevidence had stated that he had seen such a badge at a cyclerepair shop at Ariyal and had informed his uncle about it.This was corroborated by the evidence of Sashideran’s un-cle Kodeswaran. Sashideran had specifically stated in hisevidence that this particular badge was fixed on to the cycleby both of them about 2-3 months before Pranavan’sdisappearance. This badge was fixed using ‘mechani-cal screws’ which are generally used to fix children’s toys.Pranavan’s clothes were also identified by this witnessNagandra Sashideran.
The wife of Kirubamoorthi, Kamaleswari identified theclothes of her husband which was confirmed by the laundrymark that appeared on the clothing.
In R v. Gunaratne |18) the Court of Criminal Appealcited with approval the following quote which suggested that
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SC (Krishanthi Kumaraswamy Rape Case) (Dr. Shirard A. Bandaranayake, J.) 145
despite certain weaknesses, circumstantial evidence wouldafford sufficient proof of the facts in issue. It was statedthat,
“It has been said that circumstantial evidence is to beconsidered as a chain, and each piece of evidence as alink in the chain, but that is not so, for then, if any onelink broke, the chain would fall. It is more like the caseof a rope composed of several chords. One strand of therope might be insufficient to sustain the weight, but threestranded together may be quite of sufficient strength.”
It is to be noted that the following main items of circum-stantial evidence were led at the trial in this case.
All the appellants involved were either from the ChemmuniSecurity Check Point or from the check point No. 2 whichwas about 50 meters away from the Chemmuni SecurityCheck Point. Due to the close proximity to one another,all appellants would have been in a position to be awareof the events that took place on the day of the incident.
According to the evidence of Samarawickrama andAsoka, Krishanthi Kumaraswamy was last seen detainedin a bunker by the 1st appellant around 2.35 p.m. on theday of the incident. At that time the 4th appellant also hadbeen present at the bunker. The evidence of Samarawick-rama and Asoka has not been challenged and remainedunimpugned.
The bodies of the 4 deceased persons and their clotheswere found buried and the place they were buried wereshown separately by the 1st, 2nd, 3rd and 4th appellants.
The Honda Badge which was attached to Pranavan’scycle on which he was last seen going in search of his
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sister Krishanthi, was found in a place close to thesecurity check points.
A gold chain belonging to Rasamma was found in thepossession of the 1st appellant.
With all this damning evidence against the appellantswith the charges including murder and rape, the appel-lants did not offer any explanation with regard to any of thematters referred to above. Although there cannot be adirection that the accused person must explain each andevery circumstance relied on by the prosecution and thefundamental principle being that no person accused of acrime is bound of offer any explanation of his conduct, thereare permissible limitations in which it would be necessary fora suspect to explain the circumstances of suspicion whichare attached to him. As pointed out in Queen v. SantinSinghd19' if a strong case has been made out against theaccused, and if he declines to offer an explanation althoughit is in his power to offer one, it is a reasonable conclusionthat the accused is not doing so, because the evidencesuppressed would operate adversely on him. The dictum ofLord Ellenborough in R v. Lord Cochrane*70' which has beenfollowed by our Courts R v. Seeder de Silva ,2n Q v. SantinSingho(supra) Premathilake v. The Republic of Sri LankcP7',Richard v. The State ,23) Illangantillake v. The Republic of SriLanka,24) described this position in very clear terms.
“No person accused of a crime is bound to offer anyexplanation of his conduct or of circumstance of suspicionwhich attach to him; but, nevertheless if he refused todo so, where a strong prime facie case has been madeout, and when it is in his own power to offer evidence, ifsuch exist, in explanation of such suspicious appearance
Somaratne Rajapakse others v. Hon. Attorney General
SC (Krishanthi Kumaraswamy Rape Case) (Dr. Shirani A. Bandaranayake, J.) 147
which would show them to be fallacious and explicableconsistently with his innocence, it is a reasonable andjustifiable conclusion that he refrains from doing so onlyfrom the conviction that the evidence so suppressed oradduced would operate adversely to his interest. .
On a consideration of the totality of the evidence that wasplaced before the Trial at Bar and the judicial evaluation ofsuch evidence made by the Judges, the appellants have notbeen able to establish any kind of misdirection, mistake of lawor misreception of evidence. In such circumstances, takinginto consideration the position that there is no principle inthe law of evidence which precludes a conviction in a criminalcase being based entirely on circumstantial evidence and thefact that the appellants, decided not to offer any explanationsregarding the vital items of circumstantial evidence led toestablish the serious charges against them, I am of the viewthat the Trial at Bar has not erred in coming to a finding ofguilt against the appellants.
Ground 6
The Trial at Bar erred in lawby rejecting the Dock Statementmade by the appellants on the basis of a consideration ofthe contents of the confessions admitted in evidence.
Learned Counsel for the appellants submitted thatinadequate consideration was given to the dock statementsmade by the appellants.
The 1st appellant had not made any dock statementand the 2nd, 3rd, 4th and 5th appellants stated that they aretotally innocent of the Crimes they were accused ofcommitting. Their position was that the statements were not
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made voluntarily by them and that they were forced to signsome documents.
On a consideration of the judgments of the Trial at Bar,
I find it difficult to agree with the submission of the learnedCounsel for the appellants that inadequate consideration wasgiven to dock the statements as it would appear that dueconsideration has been given to them.
Ground 7
The Trial at Bar erred in law by the addition of a changeof rape following an amendment to the indictment whichwas illegal and therefore vitiated the entire proceedings.
Learned President’s Counsel for the Is* appellant tookup the position that the Trial at Bar did not have the legalcompetency to have tried the rape charge as it was not anoffence in respect of which His Lordship the Chief Justicemade order on 24.06.1997 for the holding of the Trial at Barin terms of Section 450(2) of the Code of Criminal Procedure,Act as amended At Act No. 21 of 1988. Learned President’sCounsel submitted that the procedure of a Trial at Bar is anextraordinary method of trial which could be invoked onlyin terms of Section 450 of the Code as amended. Accordingto learned President’s Counsel, Section 450(1) specified theoffences which could be tried before a Trial at Bar, but noneof the offences charged in the instant case would come withinthat category.
Therefore his submission is that, action in this matterhad to be taken in terms of section 450(2) where the Hon.Chief Justice is empowered to make a specific order “underhis hand’ directing that,
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SC (Krisharvthi Kumaraswamy Rape Case) (Dr. Shirani A. Bandaranayake, J.) 149
“the trial of any person for that offence be held before the
High Court at Bar by three Judges without a jury.”
The contention of the learned President’s Counsel wasthat before making an order in terms of Section 450(2) of theCode of Criminal Procedure Act, the Hon. The Chief Justiceis required to take into consideration ‘the nature of theoffence’ or the circumstances relating to the ‘commission ofthe offence’. Based on the letter sent by the Hon. AttorneyGeneral dated 13.06.1997, requesting the nomination of threeJudges of the High Court to constitute a Trial at Bar on thecharges contained in the information sent to the High Court,the Hon The Chief Justice had appointed a Trial at Bar andthat information contained 11 charges on which His Lordshipthe Chief Justice’s determination was based. LearnedPresident’s Counsel further submitted that the offence of Rapewas not specified in the information sent by the Hon. TheAttorney General and the charge of rape was included in theindictment later before the three Judges at the Trial at Baron a motion of the prosecuting Counsel. His position is thatalthough Section 167(3) of the Code of Criminal ProcedureAct permits the addition of a new charge “to an indictment’,there is no reference to an amendment of the “information’,which was the method of instituting the case before the Trialat Bar. Accordingly learned President’s Counsel submittedthat such an addition would constitute an unwarrantedvariation of the specific mandate of the Hon. Chief Justicewho is the only legally competed authority to constitute aTrial at Bar in respect of any given offence.
In terms of Section 450(2) of the Code of CriminalProcedure Act (as amended), only the Hon. Chief Justiceis empowered to constitute a Trial at Bar taking into
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consideration the nature of the offence and circumstancesrelating to the commission of such offence. However, Section450 (3) specifically provides that such proceedings wouldbe based either on an indictment or information furnishedby the Hon. Attorney General. Furthermore Section 450 (5)provides that the Trial at Bar shall proceed as nearly aspossible in the manner provided for trials before the HighCourt without a Jury. In all trials before the High Courtwithout a Jury the Hon. Attorney General is entitled to amendan indictment before the judgment is pronounced in termsof Section 167 of the Code of Criminal Procedure Act. Noneof the provisions stipulated in the Amending Act No. 21 of1988, indicate that the right given under Section 167 to alterany indictment or charge either expressly or by implicationin cases before a Trial at Bar has been taken away. In facta careful examination of Section 450(2), which provides forthe Hon. Chief Justice to decide that a Trial at Bar shouldbe commenced considering the nature of the offence and thecircumstances relating to the commission of such offenceindicate no requirement for the Hon. Chief Justice to decideon the charges or the indictment.
Section 160(3) of the Code of Criminal Procedure Actprovides that the Hon. Attorney General has the powerto substitute or include in the indictment any charge inrespect of any offence, which is disclosed in evidence. In suchcircumstances, considering the aforementioned provisions inSection 450, it would be absurd to contend that the AttorneyGeneral has no authority to amend an indictment.
For the aforementioned reason I am of the view that thereis no merit in any of the grounds urged by learned Counselon behalf of the appellants except the ground relating to
Somaratne Rajapakse others v. Hon. Attorney General
SC (Krishanthi Kumaraswamy Rape Case) (Dr. Shimni A. Bandaranayake, J.) 151
the admissibility of the confessions made to the MilitaryPolice Officer. After leaving out the confessions, the evidencereferred to above established beyond reasonable doubt thatthe appellants are guilty of the offences with which they havebeen convicted. In the circumstances I affirm the convictionand the sentences imposed on the appellants and dismissthis appeal.
EDUSSURIYA, J. – I agree.
YAPA, J. – I agree.
J. A. N. DE SILVA, J. – I agree.
JAYASINGHE, J. -1 agree.
appeal dismissed.