029-SLLR-SLLR-2004-V-2-AJITH-SAMARAKOON-v.-THE-REPUBLIC-Kobaigane-Murder-Case.pdf
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Ajit Samarakoon v The Republic (Kobaigane Murder Case)
(Jayasuriya, J.)
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AJIT SAMARAKOONvTHE REPUBLIC(Kobaigane Murder Case)
COURT OF APPEALJAYASURIYA, J.
KULATILAKE, J.
CA8/97
H.C. KURUNEGALA 180/94NOVEMBER, 17,23,30,1998DECEMBER, 8,17, 1998FEBRUARY, 3,8,15,17,25,26,1999MARCH, 2,9,15,25,1999MAY, 10,1999
Penal Code – Section 296 – Conviction – Credibility and Testimonial trustwor-thiness of a witness – Is the Court of Appeal the Jury or the trial Judge? – Testof Spontaneity-Test of contemporaenity – Test of promptness and Test of
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improbability – Belated first Statement – Evidence of the handwriting expert -Dock Statement – Deliberate lies ? – Effect – Evidence Ordinance – section5(2)(1), section 8(2) sections 17-38, section 32(1), section 60(1), section 60(2)Dying Declaration – Circumstance of the transaction? – Difference betweenevidential burden and legal burden? – Shifting of same – Hearsay Rule -Analysis of Evidence.
The accused-appellant – Officer-in-Charge of the Police Station, Kobeigane -was indicted with having caused the death the of one N., punishable undersection 296. After trial the accused was sentenced to death.
HELD
Per Jayasuriya, J.,
“It is not the function of a Court of Appeal to retry a prosecution on thefacts and indulge in a re-appraisal of the facts”
Just because the statement of a witness is belated the Court is not enti-tled to reject such testimony. In applying the test of spontaneity, the testof contemporanenity and the test of promptness the court ought toscrupulously proceed to exercise the reasons for the delay. If the rea-sons for the delay are justifiable and probable the trial judge is entitled toact on the evidence of a witness who had made a belated statement.
The Examiner of Questioned Documents has very correctly placedbefore the court and media the grounds and reasons for his opinion,placed before the Judge the photograph enlargements and demonstrat-ed before Court the process of comparison thereby educating Court inregard to the points of similarity.
The accused had uttered a deliberate lie on a material issue – love let-ters written by the deceased to the accused-because he knew that if hetold the truth he could be sealing his fate, if such was the motive theutterance of such lie would corroborate the prosecution case.
“The principle is that a lie on some material issue by a party may indicateconsieousness that if he tells the truth he will lose."
Evidence volunteered by the mother of the deceased in regard to theentirety of what her daughter N narrated to her before she left theparental home on that day, is admissible in evidence – s. 32(1). Thestatement of the deceased to her mother is a fact inextricably interwovenand connected to the circumstances of the shooting and setting on firewhich resulted in her death.
Expression circumstances of the transaction is not so wide as circum-stances, which would constitute circumstantial evidence to the fact inissue in a case. Where there is a close proximate relationship betweenthe happening of the event and the murderous assault such circum-stances would constitute circumstances of the prosecution.
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The dock statement is highly deficient. The incriminating circumstancesestablished against him gave rise to presumptions and inferences whichshifted the evidential burden as opposed to the legal burden to explainaway the highly incriminating circumstances.
Hearsay documentary evidence could only be admitted if it could bebrought within any one of the sections provided for the exceptions to thehearsay rule – sections 17-38 of the Evidence Ordinance.
Evidence which merely constitutes the motive for the commission of thecrime and such incidents which take place during a period of time longprior to the commission of this criminal act would not constitute a cir-cumstance of the transaction, particularly where the evidence is relevantotherwise than as motive alone and where there is a close proximaterelationship between the happening of that event and the murderousassault, such circumstances would constitute a circumstance of thetransaction.
Per Jayasuriya, J.
'The Principles laid down in R v Cochrane and R v Burdette do notplace a legal or a persuasive burden on the accused to prove his inno-cence or to prove that he committed no offence but these two decisionson proof of a prima facie case and on proof of highly incriminating cir-cumstances shift the evidential burden to the accused to explain awaythe highly incriminating circumstances when he had both the power andthe opportunity to do so.“
Statements are made only logically relevant in as much as they stand inthe relationship of cause and effect to the fact in issue by the operationof s. 8(2).
APPEAL from the High Court of Kurunegala.
Cases referred to:
Km Endoris – 46 NLR 498
Ebert Silva v K – 52 NLR 505
Bhojraj v Sita Ram – AIR 193 – PC 60 at 62.
Pauline de Croose v Q – (1968 -1968) 71 LR 169 at 180
Narapal Singh v State of Haryana – 1977 AIR SC 1066
Haramanis v Somalatha – 1998 3 Sri LR 365 st 371
Popovic v Derks – 1961 VR 413 at 433 and at 429-430
Rwx v Lucas – 1981 3 AER 1008
Karunanayake v Karunasiri Perera – 1986 2 Sri LR 17 at 33
Credland v Knowler- 35 CAR 46 at 55
R v J.A.Knight- 50 CAR 122 at 126
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Jones v Thomas – 1934 – 1 KB 323 at 327
R v Chapman – 1973 2 AER 624
Dawson v Mackenzie – 1908 S.C.648
flv Baldwin – 1973 WLR 876
M Nawaz v Khawn v Regina – 1967 1 AER 80 at 82
Pakala Narayanasamy v King – AIR 1930 – PC 47
K v Mudalihamy – 47 NLR 139
K v Amolis Perera – 26 NLR 581
Dharmawansa de Silva v A.G. 1981 – 2 Sri LR 439
Somasiri v Republic of Sri Lanka – 1983 2 Sri LR 229
K v Marshall Appuhamy – 51 NLR 272 at 275
Somasiri v Q – 75 NLR 172
Regina v H.S. Perera – 76 NLR 271
Rex v Cochrane – Gurneys Reports 479
Rex v Burdette – 1820 – 4B Alderman Reports 95 at 120
Misnagollage Siriywathie v The Republic – CA156/95 – H.C.Avissawella72/92 – CAM 8.9.99
Kankanam Aratchilage Gunadasa v The Republic – CA 121/95 – H.C.Chilaw 71/95
Barwada Boghin Bhai Hirji Bhai v The State of Gujarat- 1983 AIR SC753 a 755
Ranjith Abeysuriya P.C., with Dr. Ranjith Fernando, Ms Priyadharshani Diasand M. Thalgodapitiya for accused-appellantC.R.de Silva, P.C., Addl. Solicitor General with Sarath Jayamanne, S.S.C,A.H.M.Nawaz S.C., for the Attorney-General
Cur. adv. vult
October, 10th .1999NINIAN JAYASURIYA, J.
The accused-appellant, Ajit Devapriya Samarakoon, who wasat all relevant times, Officer-in-Charge of the Police Station atKobeigane, was indicted in the High Court of Kurunegala with hav-ing caused the death of Mananlage Malini alias Nilanthi atKobeigane on or about the 25th October 1989 and that he therebycommitted the offence of murder punishable under section 296 ofthe Penal Code.
The said Malini alias Nilanthi was a very pretty and beautifulgirl, of 18 years of age who had been crowned as the Beauty
Queen (Ayurudu Kumari) at the New Year celebrations organisedby the officers of the Kobeigane Police Station and the residents ofKobeigane in 1987. She was fair complexioned, pretty and having
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Ajit Samarakoon v The Republic (Kobaigane Murder Case)
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long hair stretching towards her legs and was rather plump in herconstitution. She was the daughter of witnesses who gave evi-dence at the trial named Mananalage Dingiriya and MananalageEmalin. The father 'Mananalage Dingiriya was financially in direstraits bordering on poverty and he was employed as a coconutplucker on neighbouring estates.
The prosecution case was presented on the basis that theaccused appellant had a love affair with the deceased Nilanthi and 20certain letters alleged to have been written by the accused appel-lant extolling his love for her, were produced at the trial. – (X3),marked at the trial as T4 and T5.
The accused denied the charge and in the course of his dockstatement he denied categorically that he had a love affair withNilanthi and he also denied that he ever wrote any letters to her.After the accused made his dock statement learned trial judge,heard submissions of the State Counsel and the Defence Counsel,and thereafter delivered his judgement on the 10th of October 1997finding the accused guilty of the charge of murder and sentenced 30the accused to death. The accused has preferred an appeal to thiscourt against the findings,conviction and sentence pronounced andimposed on him by the learned High Court.Judge of Kurunegala.
An eye witness to this alleged incident named KarunanayakeMudiyanselage Chulasiri gave evidence against the accusedincriminating him in relation to the charge preferred. At the argu-ment of this appeal, learned President’s Counsel appearing for theaccused-appellant sought to impugn the evidence of the eye wit-ness on the basis of shortcomings and contradictions in his evi-dence, which in the submission of learned counsel made him an 40untrustworthy and an incredible witness. However, it must beemphasized that the trial Judge who had the all important factor ofthe demeanour and deportment of the witness, has after giving hismind to the alleged contradictions and deficiencies in witness.Chulasiri's evidence, has arrived at the conclusion upholding thetestimonial trustworthiness and credibility of the witness. VideJudgment pages 587 onwards, page 627 and page 720.
At the conclusion of the argument in this appeal this court wasunable to hold that the trial judge’s findings in regard to credibility
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and testimonial trustworthiness, were not justified or erroneous. As sosuccinctly pointed out by Justice Soertsz, ACJ in King v Endoris 0),it is not the function of a Court of Appeal to retry a prosecution onthe facts and indulge in a re-appraisal of the facts though enthu-siastically encouraged by learned counsel who often preferredsubmissions as if the Court of Appeal is the jury or the trial judge.
Both the provisions of the former Court of Criminal AppealOrdinance and the provisions of the Criminal Procedure Codeclearly spell out the jurisdiction of the Court of Appeal in hearing anappeal preferred by an accused-appellant. In this context JusticeSoertsz in King v Endoris (supra) remarked thus:60
“Counsel appearing in support of this application addressed usas if we were the Jury in the Assize Court but our function hasclearly been laid down by the Court of Criminal AppealOrdinance, is to examine the evidence in the case in order tosatisfy ourselves with the assistance of counsel that there isevidence uoon which the Jury should have reached a verdictwhich they came to and also similarly to examine the chargeof the trial Judge to satisfy ourselves that there has not beenanv mis-direction or non-direction.
For similar expression of view by the Judicial Committee of the 70Privy Council – Vide the judgment of Lord Tucker in Ebert Silva vKing <2>-
Although learned Counsel who appeared for the accused atthe trial seemed to treat witness Chulasiri as an accomplice,Chulasiri steadfastly in the witness box, asserted that he wasunaware of any plan on the part of the accused to kill the deceasedwhen he accompanied the accused on the journey in the van onthat disastrous night.
The Learned President’s Counsel who appeared at the appealsubmitted that on the evidence, Chulasiri cannot be treated as an 80accomplice and he argued the appeal on the footing that witnessChulasiri was not an accomplice. However, learned PresidentCounsel impugned the evidence of witness Chulasiri as inherentlyimprobable, on the ground that his statements were made after along delay and therefore were belated and on the basis of contra-dictions, having regard to the contents of th statements made on
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(Jayasuriya, J.)
2.3.1991 by witness Chulasiri to his superior officers of the Army, tothe evidence given by him in the non-summary proceedings in theMagistrate’s Court.
Witness Chulasiri in the course of his testimony volunteeredbefore the High Court of Kurunegala referred to the followingsalient facts: That the accused who was the Officer-in-Charge ofthe Kobeigane police station initially rented the front room of ahouse owned by as Grama Sevaka which adjoins the police stationand thereafter the accused occupied a bungalow situated oppositethe police station and that the witness had brought his meals attimes from the police mess and at times from the witness’s ownhome. On particular occasions, it is alleged, that when the witnessbrought his meals the accused was very particular in advancingright up to the door and accepting his meals. On the day Nilanthimet with her death, the witness had taken the accused’s all threemeals for the day in a basket and as the house was closed whenhe called out to the accused, the accused had come out in a semidressed state covering himself with a towel and a hurriedly wornpair of shorts and had opened the door half way and had taken thebasket on all three occasions, witness says, contrary to the normalroutine followed the accused did not permit him to enter the houseand leave the meals on the table. The witness had been working asa Grama Arakshaka Niladari, but attached to the Kobaigane policefor about two years from the year 1987. The accused lived alone inthis bungalow and the accused was not married at that time. A fewdays before the witness ceased to work at the police station, it isalleged that the accused had called him one evening and requiredhim to bring the white coloured Toyota Hiace van owned by a per-son named Jothiratne from its driver S.R. Gunaratnehamy alongwith two tyres.
Gunaratnehamy lived at the Kuliyapitiya Co-operative Stores.Witness had proceeded to the Cooperative Store, metGunaratnehamy and had conveyed the message of the accused tobring the said van with two tyres. Gunaratnehamy in pursuance ofthat message had brought the said van at about 6 p.m. to the policestation after obtaining two tyres from the lorries which were parkedat the Cooperative Society. Having parked the van at the police sta-tion, Gunaratnehamy had left at about 7.30 p.m. on that day. The
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accused had invited the witness to get into the said van and theaccused had driven the van from the police station to the accused'shouse. Thereafter the accused had reversed the said van right upto the front door of his house and had proceeded into the saidhouse. Thereafter the accused and the deceased Nilanthi hadcome out of that house. Nilanthi seated herself on the front seat in 130the van on the left hand side, the accused sat at the driving seatand the witness had got into the rear seat of the van. On this occa-sion the accused had a LMG gun with him which he always car-ried and the accused had kept the gun on the floor of the van nearthe seat. Thereafter the accused drove the van with the two otherpassengers leaving the bungalow in the direction of Kithagamajunction. Then the accused had stopped the van,turned it and had 140driven it further towards the junction and at that stage the accusedhad stated – “let us get out of the van and proceed on foot to Mr.Dunuwila’s house situated on Amaton Estate”. The accused hadgot down first from the van and had opened the front left hand sidedoor to enable Nilanthi to get down and thereafter the accused andNilanthi had proceeded about six to seven feet from where the vanwas halted. The accused had fired the gun which was in his handat Nilanthi and the witness had seen fire emanating from the gunand heard the noise of the gun shots. Thereafter the accused hadinstructed the witness to bring the two tyres from the van. When heshouted again at the witness, the witness had brought the two tyresfrom the van. Thereafter the accused had lifted Nilanthi and placedher body on the top of the two tyres. The accused had thereafter 150placed some tubes over her body and had poured petrol over herbody from the can which was transported in the van. Thereafter, theaccused had directed the witness to set fire to Nilanthi's body. Butwhen the witness refused to do so, the accused had lit a piece ofpaper and thrown it over her body with the result that her bodycaught fire and thereafter the accused and the witness had movedaway from the scene in the van. Having returned to the police sta-tion, the accused had offered to transport the two officers who werescheduled to perform security functions at the Provincial CouncilMinister’s house. Thereafter with those two officers and the witness 160in the van, the accused had driven the van to Gunaratnehamy’splace of residence. The two officers who had relinquished securityduty at the Provincial Council Minister’s house had also boarded,
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the van driven by the accused. After the accused had set fire toNilanthi’s body he had addressed the witness and requested thus:-“only you and I are aware of this incident. Do not tell anybody”.Witness agreed because he was afraid that he too would be killedby the accused.
On the next morning the accused had summoned the witnessagain to his office and repeated his earlier request not to divulgethe incident to anybody. Subsequent to this incident on another dayin the evening the accused had directed the witness to get ready toproceed on a journey to apprehend a JVP suspect. The witnesshad proceeded in a vehicle driven by the accused together withtwo other officers towards Nikaweratiya. The accused had stoppedthe vehicle near the bridge and near a jam tree and waited in thatposition for a long time. At that stage the witness had inquired froma sergeant officer how long they would have to wait to accomplishtheir object and at that stage the sergeant had smiled in a suspi-cious unusual manner and directed the witness to inquire from theaccused. The inquiry made from the other officer produced thesame result, thereupon the witness’s fears were alerted and hebelieved that the accused had brought him there to exterminatehim. The witness thereupon pretended that he would proceed tothe jungle for toilet purposes and thereafter had fled through thejungle and reached a friend’s house, taken refuge in that house andinduced the friend to inform his parents of his whereabouts. Thewitness did not proceed to his work place and report for duty afterthat incident. The accused persistently kept pursuing and followingthe witness thereafter wherever the witness proceeded. To be freedfrom the pursuit of the accused the witness conceived the idea ofjoining the army and he joined the army on the 12th of November1989. After a training period at Diyatalawa for three and a halfmonths and having worked at the Army Headquarters in Colombofor three months, the witness was posted to Batticaloa. Theaccused had telephoned the army officers stationed at Batticaloaand made inquiries about the witness. In view of these persistentinquiries the witness had narrated an account of the incident lead-ing the Nilanthi’s death to Major Raja Fernando. The accused hadsecured a transfer to the Batticaloa police while the witness wasstationed at Welikande, Valachchenai.
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Major Raja Fernando had instructed the witness to give thedetails in writing and the details were written out by the Chief Clerkand the witness had signed that document. Witness stated that hestill afraid while making the statement due to his belief that anybodyknown to the accused may be working at the army camp atBatticaloa. On the 19th of March 1991 the army authorities sent thewitness with another officer to the Criminal InvestigationDepartment office in Colombo. On that occasion he made a state-ment to the Criminal Investigation Department. It is highly signifi- 210cant that the witness had not been contradicted at that trial inregard to the contents of this statement.
Learned President Counsel raised the issue in the course ofhis argument, though Chulasiri was not an accomplice, is not theversion of Chulasiri so inherently improbable when he states thatthe accused had been so foolhardy as to take with him a mere wit-ness against himself on this alleged mission, which he could haveso conveniently achieved himself. Learned President’s Counselutilised the Test of Improbability to assail the version narrated bywitness Chulasiri. This submission has to be viewed in relation to 220the attendant facts and circumstances of the case. This incidenthappened during the period of terror raised by the JVP insurgentswho had held out threats to the lives of police officers. From theaccount narrated by Chulasiri, it is evident that the accused intend-ed to use the witness as a parti-ceps criminis when he directed himto bring the tyres and place them on the ground, when he directedhim to fetch the can of petrol which was inside the van, when hedirected the witness to hold Nllanth’s legs when he carried her bodyand placed it on the tyres and when he directed and requested himto set fire to Nllanthi’s body which had been moistened with petrol. 230The accused had presumably believed and a expected that the wit-ness would obey all his commands and therefore take an activepart in the criminal act so as to render him an accomplice and aguilty associated in the crime, in which event the witness wouldassume the role of a guilty confederate and therefore would notdivulge the incident to any third party and thereby refrain fromincriminating himself. Viewed in this light, it could not be arguedwith justification that the course of action taken was extremely fool-hardy on the part of the accused-appellant and therefore the ver-sion is intrinsically improbable.240
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Ajit Samarakoon v The Republic (Kobalgane Murder Case)
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The learned President's Counsel relied on the Test ofSpontaneity and contended that the statement made to the CIDmade by witness Chulasiri was belatedly made after a lapse of aperiod of nearly one and a half years. It was argued that Chulasiri’sfirst revelation was in a letter addressed to his superiors in the armyon 2.3.1991 and even in that disclosure he has admitted at the trialthat some aspects mentioned therein are incorrect and false.Learned President’s Counsel also relied on the Test ofInconsistency between his testimony in Court and the contents ofthe statement made to the army officers and the evidence given 250before the learned Magistrate at the non summary inquiry.
In this context it is relevant to consider the issue of the credi-bility of the witness Chulasiri in the light of the principles enunciat-ed by Lord Roch in Bhojraj v Sita Ram <3) – Lord Roche has set outthe real test for rejecting or accepting on the basis of testimonialtrustworthiness in these words:
"How consistent is the story with itself? (consistency per se).
How does it stand the test of cross-examination? (stabilityunder cross examination) How far it fits in with the rest of theevidence and the circumstances of the case (inconsistency 260inter se)".
Witness S.R. Gunaratnehamy in his testimony has clearlystated that the witness Chulasiri conveyed a message from theaccused that the accused wanted the Toyota Hiace vehicle dri-ven by Gunaratnehamy with two tyres. Witness Gunaratnehamyhas stated that he obtained the two tyres, put in into the van andbrought the van to the police station and left it thereafter havinghad a conversation with the accused. He has stated that he tookthe two tyres off a lorry parked at the Cooperative. When he metthe accused at the police station at about 7 to 7.30 p.m. the 270accused had asked him whether Gunaratnehamy could lend thevan for about an hour. When he agreed to the request, theaccused who was holding the post of Officer-in-ChargeKobeigana police station, had driven the van and dropped theManager Gunatilake and Gunaratnehamy at the Cooperativeand that he thereafter had driven away in the van.Gunaratnehamy also stated in evidence that the accused cameback in the van with Chulasiri and two other police officers at
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about 9 to 9.30 p.m. on that day and had returned the van.Gunaratnehamy has stated that before taking the van to the 280police station in compliance with the message sent by theaccused, he had cleaned the van and removed the dust and dirtinside the van. Thereafter, after having received the van when heproceeded to wash the van, on the next day he had discoveredtwo hair pins inside the van and he had thrown the hair pins awaybelieving them to be items of no significance. This evidence nar-rated by witness Gunaratnehamy was not subjected to any chal-lenge, impugnment nor assailment in cross examination bylearned counsel who appeared for the accused at the trial. Thusthe unassailed and un-impugned evidence of Gunaratnehamy 290corroborated a part of the material version volunteered by wit-ness Chulasiri at the trial. Thus in certain material respects, theevidence of witness Chulasiri fits in with the un-assailed evi-dence given by witness Gunaratnehamy and the proved atten-dant circumstances upon this prosecution. This aspect of supportand substantiation arising from the testimony of Gunaratnehamyhas greatly influenced the trial Judge in accepting and actingupon the evidence of witness Chulasiri.
Just because the statement of a witness is belated the Courtis not entitled to reject such testimony. In applying the Test of 300Spontaneity the Test of Contemporaenity and the Test ofPromptness the Court ought to scrupulously proceed to examinethe reasons for the delay. If the reasons for the delay adduced bythe witness are justifiable and probable the trial Judge is entitledto act on the evidence of a witness who had made a belatedstatement. Vide in this context the pertinent observations ofJustice T.S. Fernando in Pauling de Cross v The Queen (4) at 180Vide also Narapal Singh v The State of HariyanaS5)
Witness Chulasiri at the trial has referred to the repeatedpleas and requests on the part of the accused, held out to him, 310not to divulge this incident to anybody and the fact that this inci-dent was only known to the accused and the witness. He hasalso referred to the Nikaweratiya episode where he entertainedreasonable apprehension and danger to his own life. In view ofsuch danger emanating from the accused he had decided to jointhe Sri Lanka Army. He had referred to the persistent conduct of
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the accused in pursuing him wherever he went, whether to theboutique or to the town. He has referred to the telephoneinquiries which the accused had made about his movementseven when he was stationed in the army camp at Welikanda andat Batticaloa. He states through fear of reprisals to his personalsafety he refrained from disclosing this incident to the authoritiesand that he even made his statement to his superior officer in thearmy only on the 2nd of March 1991. He had not made a com-plete account of the incident and that he had made certain untrueassertions and facts because he genuinely feared that the per-son to whom he made the statement may be known or related tothe accused. The accused was also transferred to the Batticaloapolice station as Officer-in-Charge and he had been making sev-eral inquiries about the movements of the witness from officersin the army, in his statement which has marked D29 in describ-ing the shooting he had stated that the accused instructed him topush the van and when he could not do so, the accused hadasked Nilanthi to get down and push the vehicle and when hewas behind the vehicle an trying to get out, the accused shotNilanthi and thereafter that he got scared and ran away.
In his evidence at the trial the positions in which the partieswere placed shortly before the shooting has been differentlydescribed by the witness and he has stated that after the entireincident he got into the van and proceeded away from the scene,when the van was being driven by the accused to the police sta-tion. This discrepancy in regard to the positions and the discrep-ancy of getting scared and running away was explained by thewitness when he stated-
“I did not write the truth in the letter (complaint) signed andhanded over to the army. I did not know that the person Icomplained to was known or related to the accused. I didnot run away as stated in that letter. But I came back to thepolice station with the accused.”
The point to be emphasized is that the evidence that wit-ness gave in the High Court that he got into the van after the inci-dent and tie came back to the police station when it was drivenby the accused is substantiated and corroborated by the evi-dence of Gunaratnehamy. Gunaratnehamy has stated to Court
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that the accused came to the Cooperative driving the van on thatoccasion and inside the van there was the witness Chulasiri andtwo other police officers. Thus, though Chulasiri’s statement hasbeen made after the lapse of nearly one and a half years afterthe happening of the incident,having regard to the explanationgiven by him to the trial Judge, that explanation cannot be adju- 360dicated as being totally unconvincing as contended for bylearned President's Counsel.
According to the evidence of Chulasiri it is the conduct andactions of the accused which had contributed both to the delay inmaking the statement and to the discrepancies in the statementas regards the events which immediately preceded the shooting.
Vide the trial Judge’s observations in his judgement at pages587, 589, 590,591. The reasons adduced by Chulasiri are equal-ly applicable to the failure on his part to divulge this incident toMananalage Dingiriya, the father of Nilanthi. It is true that 370Chulasiri in his deposition at the non-summary proceedings con-ducted in the Magistrate's Court had stated that he thought thatNilanthi was shot by the JVP – vide D32. However, the trialJudge who had the benefit of the demeanour and deportment ofwitness Chulasiri when he was giving evidence at the trial, hasarrived at a favourable finding in regard to his testimonial trust-worthiness notwithstanding the proof of the contradictions in hisstatement to the Army official made on 2.3.1991 which weremarked as D28 – ride D30 and the contradictions in regard to thedepositions which were marked D31 to 036. D33 however has 3donot been proved. In regard to the contradictions arising in rela-tion to the dispositions, the only material contradictions are D32,
D33 and D35. In the circumstances, we are unable to say thatthe trial Judge has erred in arriving at a favourable finding inregard to the credibility of witness Chulasiri and we uphold hisfindings on the evaluation of Chulasiri’s evidence, since he hasgiven careful consideration to the alleged contradictions and dis-crepancies relied upon by the defence. (Vide pages 586 to 592and 627 onwards).
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There has been evidence led – elicited from witness 330Munasinghe Arachchige Mutu Menika, W.M. Sugathadasa, R.M.Jusie Appuhamy and A.M. Gunadasa who were residents livingclose to the scene of the incident, which had taken place nearKitagama junction. These witnesses collectively have stated thatwhen they were listening to Bana preaching over the radio atabout 8 p.m. on Wednesday, they had heard the noise of a gunshot emanating from the direction of Kitagama junction andshortly prior to that they had heard the noise of a vehicle beingdriven in that direction.
Witness Jusie Appuhamy states precisely that he was lis- 400tening to Bana on Wednesday when he heard the noise of themovement of a vehicle and then he heard gun shots. Later whenhe came out and looked he had seen light emanating from a firein the direction of Ematon Estate.On the next day when the wit-ness proceeded to that point at about 10.a.m. they found a heapof ash and a strong smoke emanating from it. The 25th ofOctober 1989 was in fact a Wednesday.
Witness Gunadasa states that on Wednesday at about 9.15p.m. he saw a mass of fire underneath his door. Thereafter whenabout half an hour had lapsed, he had proceeded some distance 410towards the fire with Rajapakse and on seeing what was appar-ent he had believed that it was a human body burning. Aftersome time he states that the corpse burst and he saw somethinglike intestines coming out of the corpse and on the next daywhen he went there he found that the body is burnt except forabout one foot of the corpse.
Sarath Gamini Dasanayake, Inspector of Police attached tothe Criminal Investigation Department who conducted the inves-tigations stated that Mananalage Dingiriya made a complaint tothe Police Headquarters in Colombo on the 31st January 1991 420regarding the killing of his daughter Malini alias Nilanthi by shoot-ing her and later by burning her body. He has stated that he wasdirected to investigate the said complaint by the DeputyInspector General of Police attached to the CriminalInvestigation Department on 5.2.91 and that he undertook theinvestigation on 14.2.91 when the accused was still functioningand officiating as the Officer-in-Charge of the Kobeigane police
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station. The accused was transferred from this post to theBatticaloa police as Officer-in-Charge only in March 1991.
Investigating the said complaint of Dingiriya, witness 430Dassanayake had proceeded to the point shown by Dingiriya tohim. Witness Dassanayake states that he found at that placesigns and marks that something had been burnt at that spot. Hehad discovered and taken into custody a piece of human skullnear a coconut tree at a point 20 feet away from the scene of theincident. He had discovered a piece of burnt tyre near a hedge.
On further careful examination the witness had discoveredpieces of bones mixed with earth and a small talisman made outof white steel, (gg os>a gdcsaJ) which was mingled withearth.This talisman was burnt and it was identified by witness 440Dingiriya as the talisman purchased by him to be worn byNllanthi as she had developed a skin disease. WitnessDasanayake had handed over the piece df the skull, a sample ofearth containing human bones and ashes and a piece of theunder skirt recovered by him to the Medical Officer at the MedicalFaculty.
On the 5th April 1991 he had taken into his custody theInformation Book relating to this investigation. The accused’sstatement had been recorded by Assistant Superintendent ofPolice, P.A. de Silva on 5.4.91. Witness Dassanayake has filed 450a B report in the Magistrate's Court on the 26th of April 1991 andthe learned Magistrate had visited the scene to conduct aninquiry on the 26th of April 1991 itself and a post mortem exam-ination on what was discovered was held on the 29th of April1991. The accused was arrested by Assistant Superintendent ofPolice, P.A.de Silva on the 15th of May 1991, and broughtbefore the Magistrate on 16th of may 1991. The witness hadmoved the learned Magistrate and three letters marked as X1,
X2 and X3, the specimen writing of the accused and theInformation Book were sent with the orders of the Magistrate to 460the Examiner of Questioned Documents for examination andreport. Witness has stated that the piece of the skull was dis-covered approximately 25 feet away from the place where thetalisman was discovered.
CA
Ajit Samarakoon v The Republic (Kobaigane Murder Case)
fJavasuriva. J.)
225
At the trial it was suggested under cross-examination to thewitness that the talisman, the piece of the skull and the sample ofearth containing particles of bones were fabricated to fit thedeceased. However, this suggestion particularly in regard to theskull was established to be wholly unsustainable at the trial. SeniorLecturer attached to the Judicial Medical Division of the Faculty ofMedicine, Dr. H.N. Jean Martia Perera, in her evidence has clearlystated that the piece of skull sent for inspection by her was that ofa person who had been burnt-whose age was under 30 years andas there were insufficient bones it was not possible to state whetherthe skull pertained to a male or female person. Thus if this piece ofskull was fabricated and introduced by the Inspector of Police asirresponsibly suggested by the defence the Inspector of Policewould have had no means of perceiving the age of the personwhose piece of skull was recovered. This medical evidence relatingto this discovery belies the defence suggestion put to the Inspectorunder cross examination.
The letters which I have referred to above, had been originallytaken charge by the Nikaweratiya police, who initially investigatedinto this matter, from Mananalage Dingiriya, the father of thedeceased. The evidence led at the trial disclosed a clearmalpractice on the part of the officers attached to that police station.The original of the letter alleged to have been written by theaccused to Malini had been transcribed again at the police stationusing the identical words by another person so as to assist theaccused to impugn the hand writing. However, witness Dharmasiribefore handing over the original copy had been careful to obtain aphotostat copy of that document.
The Examiner of Questioned Documents, C.D. Kalupahanahaving compared the writing on the photo copy MDi and (X3) hasclearly vouched for the fact that it contains the hand writing of theaccused. The expert witness has very correctly placed before Courtthe media, grounds and reasons for his opinion, placed before thelearned Judge the photographic enlargements and demonstratedbefore Court the process of comparison, thereby educating theCourt in regard to the points of similarity between the contents ofthe photo copy MDi and (X3) and the specimen hand writing of theaccused. Though the accused denied that he had written the
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original of the photo copy MD, (marked as T4) the learned trialJudge having been enlightened and educated by the expertwitness, has arrived at a finding independently of the expert’sopinion, but assisted by the expert that the photo copy MD, containsthe hand writing of the accused
Notwithstanding the persistent denials of the accused-appellant, these revelations manifest the mischievous, but illegalactivities of the officers of the Nikaweratiya police and their 510concerted endeavour to unlawfully and illegally assist the accusedwho was continuing to hold the post of Officer-in-Charge of theKobaigane police station which was a neighbouring police station tothe Nikaweratiya police station. This discovery manifests theirundue partiality and propensity to illegally assist the accused byventuring even to fabricate documentary evidence. In thecircumstances, as the trial Judge has rightly held, no reliancewhatsoever can be placed on the statements recorded by theNikaweratiya police of the prosecution witnesses. Though aconcerted attempt was made by the counsel at the trial to rely on 520the alleged statements made by the prosecution witnesses to theNikaweratiya police for purpose of contradicting the testimony ofsuch witnesses at the trial, in view of this revelation and discoverywe hold that the aforesaid contradictions marked by havingrecourse to the statements recorded by the Nikaweratiya police,have necessarily to be disregarded as being of no tangiblesignificance in the discovery of the truth and ascertainment of thecredibility of the witnesses.
The learned trial Judge has had the benefit of the media,ground and reasons fully placed before the Court by the Examiner 530of Questioned Documents, Mr. Kalupahana for his considered viewand finding that the hand writing on the document MD1, and X3(marked at the trial as T4 and T5) coincided and was identical to thespecimen hand writing taken from the accused (the learned trialJudge has dealt with the evidence of the expert on these aspects atpages 505 to 508 of his judgment) and he has arrived at hisadjudications independently, but assisted by expert evidence, thatthe accused had written out the contents of the love letters whichwere marked as MD1 and X3 and produced at the trial as T4 andT5. X3 and MD1 were read aloud before the Court of Appeal by 540
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Ajit Samarakoon v The Republic (Kobalgane Murder Case)
(Javasuriva. J.)
227
used by the accused in 3 and MD1 were, a pointed reference to anact of sexual intercourse which he has had with Nilanthi. LearnedPresident’s Counsel’s placed a different interpretation on the wordsused by the accused in X3 and MD1. This Court holds that theinterpretation put upon the words in T4 by learned AdditionalSolicitor General is the correct construction of the contents of thatletter.550
The accused made a dock statement in the course of whichhe denied the charge and he emphatically stated that he had helda high and exalted position of Officer-in-Charge of the Kobeiganapolice station and there was no necessity whatsoever for him tomaintain and have a love affair with a daughter of Dingiriya who asa mere coconut plucker by profession and who resided in the samevillage. He also stated that there was no necessity whatsoever forhim to obtain Gunaratnehamy’s van when there were several jeepsand a requisitioned van at the Kobeigana police station for his use.
He also stated in his dock statement – “If I visited Dingiriya’s house, 560if Nilanthi came to the police station or in search of me, there wasno necessity for me to write letters to her as I regularly visited thathouse”. He has further stated that “he had no idea whatsoever to killNilanthi Malini or to have a love affair with her”. This is the firm anddefinite position asserted by the accused in his dock statement.However, at the argument of this appeal, learned President’sCounsel wisely admitted and conceded on behalf of the accusedthat the accused did have and maintain a love affair with Nilanthi, inview of the overwhelming evidence elicited in support of this fact atthis trial.570
The prosecution witnesses, M.M.Gunawathie and SunethraDilhani have also given evidence at the trial in regard to the loveaffair that existed between the accused-appellantand Nilanthi. Bothwitnesses under affirmation have stated that they had written onNilanthi’s instructions love letters on her behalf to the accused, evenas late as two months prior to her death. Thus it is patently andmanifestly clear that the accused has in his dock statement utteredan international and deliberate falsehood.
both President’s Counsel and by the Additional Solicitor General
The Additional Solicitor General submitted that the expressions
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The question arises whether this falsehood was uttered on amaterial and relevant point upon this prosecution. There is no doubt 580that this lie was deliberately uttered on a highly material issue in thiscase. The next question is the consideration whether the motivatingfactor for the lie was a realization of guilt and the fear for the truth;if so, the utterances of the lie weakens the defence case andsubstantiates and advances the prosecution version narratedagainst him. We hold that the accused uttered this deliberate lie onthis material issue because he knew that if he told the truth hewould be sealing his fate as regards this legal proceedings. If suchwas the motive, the utterance of such a lie would corroborate theprosecution case. In the decision in Haramanis v Somalatha at 590371 I stated the rationale in regard to the motive for the utterancesof a deliberate lie on some material issue by a party as follows:
‘The principle is that a lie on some material issue by a partymay indicate a consciousness that if he tells the truth he will
lose.”
Justice Hall in Popovic v Derks at 433 and at 429-430 (perJustice Sholi) remarked –
"Matters which otherwise might be ambiguous are renderedcorroborative by reason of the false denial.”
I have referred in that decision to Chief Justice Lane’s eoojudgment in Rex v Lucas <8> and the judgment of Justice Athukoralein Karunanayake v Karunasiri Perera <9> at 33. Justice Athukoraleremarked –
"It seems to me that the tests which should be applied indetermining whether a lie told by an accused or a defendant,whether in or outside Court, is capable of constitutingcorroboration or not, have been correctly set out by Lord Lane,
CJ. in Rex v Lucas (supra). Under the circumstances I shouldadopt and apply the criteria formulated by him to local casesboth criminal and civil in which the question arises for 610consideration.
Vide also the decisions in Credland v Knowleri10> at 55; R vJ.H. Knight) at 126; Jones v Thomad12> at 327; R v Chapmad13)Dawson v Mackenzie<14); R v Baldwid15); Navaz Khawn vReginaC®) at 82 .
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Ajit Samarakoon v The Republic (Kobaigane Murder Case)
(Javasuriva. J.)
229
In regard to the tests laid down by Lord Lane, learnedPresident’s Counsel appearing for the accused-appellant concededthat the accused had intentionally and deliberately lied in his dockstatement on a material issue, but he contended that the motive forthe lie was not a consciousness on his part that if he speaks thetruth in Court he will lose. Learned President’s Counsel strenuouslyargued that the accused did not act with the consciousness that ifhe told the truth he would be sealing his fate as regards this criminalprosecution. He argued that because the accused held a high postin government service as Officer-in-Charge of the police stationand because he held a high position in the social ladder, he spokethe untruth and denied his love affair with Nilanthi as she was thedaughter of a mere coconut plucker who stood in a low socialposition. In analyzing and evaluating this submission of learnedPresident’s Counsel, one must necessarily take account of thelapse of time which had ensued prior to the date on which heuttered this lie. There was a non-summary proceedingsin the Magistrate Court of Kuliyapitiya where evidence in regard tothis love affair was led at an anterior point of time. The investigationconducted by the Criminal Investigation Department and,proceedings at the inquest and in the Magistrate Court which tookplace at an anterior point of time would have necessarily attractedthe attention of the public as well as the recitors of verses (kavi kolakarayas) at bus stands in the district. Thus this love affair wouldnecessarily have been a widely publicized matter in the entiredistrict.
Besides, witness Somawathie has given pertinent evidence inregard to this aspect of the matter. In her evidence which appearsin the record, she has convincingly and affirmatively stated that ona day roughly about one month before Nilanthi’s death, the accusedwho was the Officer-in-Charge of the Kobeigana police station hadsent a message to her through a person called Martin, to call overpersonally at the police station. She has stated that when she wentthere the accused had stated thus to her:
“When I was taking Nilanthi in my official jeep your daughterSunethra Dilhani has mocked and laughed and stated certainthings. Warn your daughter to be very careful and abstain fromsuch conduct in the future.”
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After Somawathie had proceeded near the gate of the policestation the accused again summoned her and had reiterated inSinhala. The evidence given by Somawathie on this point has notbeen challenged or impugned in cross examination. This evidenceof Somawathie contains an admission that the accused had takenNilanthi in his open jeep along the town of Kobeigana. Had theaccused entertained fears and apprehensions about the social 660standing of Nilanthi when he had taken her in his official jeep alongKobeigane town? This admission which was elicited is provableagainst the accused quo admission and this evidence militatesagainst the acceptance of the explanation and the aforesaidsubmission preferred by learned President's Counsel at the hearingof argument on this appeal. Thus it is clear that the accused hasuttered these deliberate lies due to his consciousness that if hestated the truth, his fate would have been sealed as far as thisprosecution was concerned. Thus this lie weakens the defencecase, advances in strength, corroborates and substantiates the 670prosecution case presented against the accused.
Equally, the accused falsely asserted in his dock statementthat he did not obtain a Toyota Hiace van which was driven byGunaratnehamy and that there was never a need for him to obtainthat vehicle, as there were two jeeps and a requisitioned vanavailable for his use at the police station. But the unimpugnedevidence disclosed that the police vehicles were under repair andthe police officers to perform security duties at the ProvincialCouncil Minister's house were picked up into Gunaratnehamy's vanat the police station on this day to be transported by the accused. 680The evidence of Guneratnehamy on this aspect was neverchallenged, impugned or assailed by counsel who appeared for theaccused at the trial in cross examination. This manifest lie utteredby the accused in his dock statement too satisfies the three testsformulated by Lord Lane in Rex v Lucas (Supra). The borrowing ofthe said van was a material fact in this prosecution and theprosecution version is that Nilanthi was taken in this particular vanon the 25th of October 1989 to be killed near Kitagama junction.
The accused has uttered this falsehood deliberately with theconsciousness that it he admitted the truth and the borrowing of this 690van, his fate would be sealed as far as this prosecution wasconcerned.
CA
Ajit Samarakoon v The Republic (Kobaigane Murder Case)
(Javasuriva. J.)
231
Mananalage Emalin testified before the High Court that on the24th of October 1989 her daughter Nilanthi left home in the morningat about 7.30 a.m. or 8 a.m. stating to the witness that the LokuMahataya of Kobeigane had requested her to come over to marryher and on that occasion Nilanthi had stated to the witness that shewas expecting a child in her womb due to the actions of the saidLoku Mahataya and that he wanted to get married to her on accountof that fact. She also stated that her daughter told her not to look for 700her and it it is possible that she should come round about 4 o’clockor not come at all. The aforesaid evidence given by Emalin wassought to be admitted in terms of the provisions of section 32(1) ofthe Evidence Ordinance as a dying declaration.
Learned President's Counsel contended that the entirety of thesaid dying declaration alleged to have been made by Nilanthi to hermother (the witness) did not come within the ambit of section 32(1)and was therefore inadmissible. He contended the phrase “thecircumstances of the transaction which resulted in her death” wouldrelate only to that part of Nilanthi’s statement wherein she stated in 710the morning that she was proceeding to meet the Loku Mahataya,but that the object or purpose for so proceeding was inadmissible.
The learned President's Counsel sought to rely on certainwords use by Lord Atkin in Pakala Narayanaswamy v King(17).However in the course of the argument this Court was constrainedto draw the attention of learned President’s Counsel to the effect ofthe judgment of the Privy Council in admitting as admissible thewhole of the statement sought to be admitted by the prosecutionagainst the accused-appellant and to the judgment of Justice Diasin King v Mudalihamy (18> where the learned Judge purporting to 720apply the principles laid down by the Privy Council in PakalaNarayanaswamy’s case held that the statement made by thedeceased to witness Mary Nona that he was proceeding to thejungle at the invitation of the accused to collect bee’s honey in thejungle was admissible in terms of section 32(1) of the EvidenceOrdinance. Thus both in Pakala Narayanaswamy’s case and inMudalihamy’s case not only the fact of the invitation but thepurpose of object of the invitation were determined to be acircumstance of the transaction which resulted in death.
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At a later stage of his argument learned President’s 730Counsel was constrained to accept the tenability of the saidproposition of law enunciated by this Court in the healthydialogue that took place so often between Judge and Counsel.
At this stage he argued that part of the evidence of Emalin thatNilanthi was expecting a child on account of the activities of theLoku Mahataya and because of that fact the Loku Mahatayawanted to get married to her was clearly inadmissible as itmerely constituted the alleged reason for the purpose ofproceeding to meet Loku Mahataya which he characterized asbeing the REASON for the reason.740
Alternatively, learned President’s Counsel argued that theevidence given by Emalin, on this point was false and incredibleas being inherently improbable. Dealing with the latter issue ofimprobability, this court observes that although witness Emalinas a mother was aware about her daughter’s pregnancy aboutthree months prior to the date, when she set out from herparental home on that morning, the significant fact is that ayoung girl aged 18 was leaving the parental home in the morningto get married alone, unceremoniously and unaccompanied byany other person and without the presence and the blessings of 750her parents. Especially, among the conservative village folk,daughters of young age do not go out of their homes to getmarried without the presence of their parents having regard tothe practices, usages and the culture that prevails in the ruralvillages
In this context when Nilanthi reiterated that she wasexpecting a child by Loku Mahataya and that she was setting outalone to get married to him in terms of his directions, this Courtdiscovers no intrinsic or inherent improbability as contended forby learned President’s Counsel, when one relates this statement 760and the evidence to the attendant circumstances elicited uponthis prosecution. Though her mother was aware of herpregnancy about three months prior to the date of her settingout, it is quite probable that Nilanthi was apologetic about thefact that she was setting out alone on this mission.
Now reverting to the issue of legal admissibility of that partof her statement that she was expecting a child on account of
Ajit Samarakoon v The Republic (Kobaigane Murder Case)
CA(Jayasuriya, J.)233
the activities of the Loku Mahataya and that he wished to getmarried to her on account of this fact, this Court, proceeds toconsider whether this part of the statement is sufficientlyproximate to render it a part of the circumstances of thetransaction which resulted in her death.
This expression “circumstances of the transaction” is not sowide as circumstances which would constitute circumstantialevidence to the fact in issue in a case. The setting out fromhome for the purpose of getting married to the Loku Mahatayahas been subsequently conceded by learned President’sCounsel to be part of the circumstances of the transaction whichresulted in death.The fact that she carried the accused’s child inher womb is certainly a reason for the marriage contemplated bythe parties. Is not that reason sufficiently connected andproximate to the invitation to get married? The answer to thatquestion has definitely to be in the affirmative. Hence thepregnancy is highly connected to the invitation to get marriedand is also closely connected to the alleged acts of shooting andthe burning of Nilanthi.Viewed in this light this statement ofNilanthi to her mother shortly before she left the house thatmorning is a fact inextricably interwoven and connected to thecircumstances of the shooting and the setting on fire whichresulted in her death. In the circumstances this Court upholdsthe cogent contentions advanced by learned Additional SolicitorGeneral and rejects the submissions preferred by learnedPresident’s Counsel and holds that the evidence volunteered bywitness Emalin in regard to the entirety of what her daughterNilanthi narrated to her before she left the parental home on the24th of October 1989 is admissible in evidence in terms of theprovisions of section 32(1) of the Evidence Ordinance, adoptingthe wide and extensive construction placed upon this provisionby Lord Atkin in Pakala Narayanaswamy’s case, as opposed tothe restricted and limited construction put upon it by JusticeGarvin in King v Arnolis PereraS^
The reference in the dying declaration to the fact of pregnancyis causally and closely related to the actual occurrence and thereis a proximate relationship between the pregnancy and the actualoccurrence. It is directly related to the occasion of the death. It is
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possible that evidence which merely constitutes the motive for thecommission of the crime and such incidents which have takenplace during a period of time long prior to the commission of thecriminal act, would not constitute a circumstance of the transaction.
Vide Dharmawansa de Silva v Attorney GeneralS2°) Particularly siowhere the evidence is relevant otherwise than as motive alone andwhere there is a close proximate relationship between thehappening of that event and the murderous assault, suchcircumstances would constitute a circumstance of the transaction -See Somasiri v Republic of Sri Lanka <21); King v MarshallAppuhamyP2> at 275; Somasiri v The Queen (23) per JusticeH.N.G.Fernando and Regina v H.S.PereraS24) (where there was aninterval of over two weeks between the fact relied upon asreason for the attack on the deceased and the causing of the deathof the deceased).820
Witness Mananalage Emalin has stated in her evidence thatwhen her husband Dingiriya arrived at their home after work thatshe had related that Nilanthi left home in the morning and had notreturned as yet. This witness also stated that she met the accusedat the police station and requested the accused to take down herstatement and had requested the assistance of the accused to findher daughter but the accused had failed to record her statementand had instead observed that her daughter may have got friendlywith a boy and run away and therefore to investigate further beforemaking a complaint.830
Long prior to the 24th of October 1989 witness Emalin hasstated that the accused had come to her compound to meet herdaughter on two or three occasions and she had seen her daughtertalking to the accused in their garden. She has also testified to theeffect that a person named Dharmasiri had proposed to herdaughter and that when Dharmasiri discovered that Nilanthi washaving an affair with the accused on discovery of a love letterwritten by the accused to Nilanthi, he had terminated therelationship with Nilanthi. Under cross-examination she wasconfronted with the evidence that she gave at the non summary 840proceedings in the Magistrate Court. In parts of her statement madeto the Criminal Investigation Department marked, D20 and D21,she has stated that her daughter Nilanthi when leaving the houseon the 24th of October 1989 at about 7.30 a.m. had told her thus:
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Ajit Samarakoon v The Republic (Kobaigane Murder Case)
(Javasuriva. J.)
235
“Mother Kobeigane Loku Mahataya had wanted me to come. Do notlook for me. If possible I will come around 4 o’clock or I will notcome". The purpose in marking these statements as D20 and D21was to pin point that in these statements there is no reference to thepurpose of the mission which was to get married or a reference tothe pregnancy at the hands of the accused. D24 had related to whatthe witness informed the Nikaweratiya police. We have already setour views in regard to that investigation and the recording ofstatements by the Nikaweratiya Police.
Another witness who testified at the trial was MananalageDingiriya the father of the deceased, in the course of his evidencehe has stated that Dharmasiri ceased to come to their home to seeNilanthi about six months before her death. He has referred to thefact that he purchased a white steel talisman on the advice of theVeda Mahathaya as Nilanthi had developed a skin disease.According to his testimony on the 24th of October 1989 when hecame back from work to his home, he had discovered from his wifeEmalin that Loku Mahataya had wanted Nilanthi to come over to getmarried to her and his wife had stated that she had left the home inthe morning at about 7.30 a.m. On the 25th of October 1989, thewitness had proceeded to Kobeigane police station and hadexpressed a desire to make a written complaint to the accused thathis daughter was missing. Whereupon the accused had dissuadedhim from making a complaint in writing by observing that she mayhave run away with a boy and therefore to make further inquiriesand after the lapse of two or three days to make the desiredcomplaint. On the 26th of October 1989 when he proceeded toKitagama junction he had discovered the corpse of a young girlburnt to death and when he looked closer he had seen a burnttalisman and believed the body to be that of his daughter. On hisarrival at home he had narrated this discovery to his wife andthereafter proceeded to the police station to meet the accused andhad again expressed a desire to lodge a complaint. On thisoccasion too the accused had dissuaded him from making acomplaint stating that his daughter will come back home and tomake the statement if necessary after the lapse of a few days.Thereafter when the witness insisted on making the complaint theaccused had instructed the Reserve Officer, after coming out with ajoke, to record his statement.
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The Reserve Officer subsequently advised him to inquire fromhis daughter’s friends and come back later to the police station andas a result the witness was unable to have his complaint recordedeven on that day. On the next day when he was proceeding to workhe had seen the burnt body again and he had observed the burntpart of a under skirt hidden under a bush. Subsequently he hadproceeded to this spot and taken charge of this burnt under skirt 890and later handed it over to the officers of the Criminal InvestigationDepartment. He had stated that he found letters written by theaccused to his daughter and about three letters written by Niianthito the accused which were deposited in her suitcase.
On the 31st of January 1991 the witness had made acomplaint to the Police Headquarters in Colombo and after thelapse of six days of making the said complaint his whole house hadbeen burnt. The witness has not been contradicted at the trial inregard to the contents of this complaint. Later an officer of theCriminal Investigation Department arrived at his home and 900recorded his statement. The witness had taken the officer of theCriminal Investigation Department to the spot where he found theburnt body and the burnt talisman. Long before the CID officerscame to meet him in his statement to the Police Headquarters, hehas specifically referred to the burnt body and talisman.
In this factual background, learned Additional Solicitor Generalcontended cogently that although the mother and father of his lovedgirl friend orally complained to the accused that their daughterNiianthi was missing on the 24th of October and 25th of October1989 and requested the accused to record their complaints, the 910accused had made every endeavour to dissuade them from making ’a written complaint observing that his girl friend Niianthi may haveeloped with a boy and had suggested to them to make furtherinquiries and in his capacity as Officer-in-Charge of the policestation the accused took no steps whatsoever to investigate intothese complaints, notwithstanding the fact that the person missingwas an individual to whom he had written love letters. He urged thisCourt on proof of these incriminating facts to raise an adverseinference in regard to the callous conduct and failure of the accusedto commence an investigation into these complaints.These 920complaints were made on the evening of the 24th of October 1989
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(Jayasuriya, J.)
237
(by the mother) and on the 25th of October 1989 (by the father ofthe deceased) and the very significant fact is that according to thetestimony of Chulasiri, Nilanthi came out of the residential house ofthe accused together with the accused and got into the van, whichwas later driven by the accused, on the 25th of October 1989 atabout 7.30 or 7.45 p.m.
The failure to record the complaints of the parents and thefailure to commence an investigation into the said complaintscoupled with the evidence of Chulasiri that he saw Nilanthi coming 930out of the accused’s residence together with the accused to boardthe van, raises highly incriminating circumstances against theaccused which the accused has failed to explain away, though itwas in the power and dominium of the accused to do so when hehad that unfettered and unrestricted opportunity to do so in his dockstatement. His dock statement to this extent is highly deficient. Thedock statement contains no denial of Dingiriya’s visits to the policestation and requests held out to the accused to have his complaintrecorded. These incriminating circumstances established againsthim gave rise to presumptions and inferences which shifted the 940evidential burden, as opposed to the legal burden, to explain awaythese highly incriminating circumstances in terms of the speechesof Lord Ellenborough in Rex v Cochrana (25> and that of JusticeAbbott in Rexv Burdett <26) at 120, The principles laid down in thesetwo cases do not place a legal or a persuasive burden on theaccused to prove his innocence or to prove that he committed nooffence but these two decisions on proof of a prima facie case andon proof of highly incriminating circumstances shift the evidentialburden to the accused to explain away these highly incriminatingcircumstances when he had both the power and opportunity to do 950so. Vide the judgment in Misnagollage Siriyawathie v The Republic(27> and Kankanam Aratchilage Gunadasa v The Republic (28l
We have held that the totality of the contents of the dyingdeclaration made by Nilanthi, shortly before she left the parentalhome on the 24th of October 1989, to her mother is admissible andrelevant in terms of sec 32(1) of the Evidence Ordinance.
Learned Additional Solicitor General alternatively argued thatthe statement relating to her going out to get married and thestatement relating to her pregnancy at the hands of the accused
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Nilanthi?’ The actual author of this letter is deceased Nilanthi andwitness Gunawathie has merely transcribed the letter at the 980dictation and instance of Nilanthi. Thus if the author of the letter isnot called as a witness, the contents of the letter dated 11.10.89 arehearsay. Although the contents of this letter are logically relevant tothe facts in issue upon this prosecution, this hearsay documentaryevidence could only be admitted if it could be brought within anyone of the sections providing for the exceptions to the hearsay ruleas spelt out in the Evidence Ordinance. Those exceptions are 1contained in our Evidence Ordinance in sec. 17-38 and the contentsof this letter do not fall within the ambit of any of these sections.Thus Gunawathie’s evidence on this matter has necessarily to be 990limited to the fact that Nilanthi dictated a letter to that effect. To thatextent Gunawathie’s evidence when so limited is direct evidence interms of section 60 of the Evidence Ordinance. In thecircumstances though the contents of this letter was marked inevidence, this letter is not admissible to establish the truth of thematters contained in the assertions of Nilanthi as embodied in thatletter. In fact even to the third aspect of evidence relied on by the
was also alternatively admissible under sec. 8(2) of the Evidence 960Ordinance as conduct of any party to any suit or proceeding andthat when such conduct is relevant a statement made whichaccompanies and affects such conduct is also relevant. This samelegal contention was advanced by learned Additional SolicitorGeneral in regard to two other items of evidence led upon thisprosecution. In the circumstances I will discuss the tenability of thiscontention in law after referring specifically to other items ofevidence which were referred to by him in the course of theargument.
Witness Gunawathie giving evidence (recorded at page 160) 970stated that fourteen days prior to Nilanthi’s death she wrote theletter dated 11th October 1989 at the dictation and at the instanceof Nilanthi addressed to Ajith Samarakoon who functioned as theLoku Mahataya at the Kobeigane police station. The contents of thisletter, inter alia, reads as follows:
“You have not sent me a letter presumably for the reason thatyou do not wish to meet me. Brother Ajit is your heart a gal
Do you think and recollect about innocent
katayak?
CA
Ajit Samarakoon v The Republic (Kobaigane Murder Case)
(Jayasuriya, J.)
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learned Additional Solicitor General the principle of law enunciatedby me would be equally applicable.
Witness Somawathie giving evidence (recorded at page 317) 1000stated that when she was peeling ekels whilst seated on a benchpositioned under a tree in her compound. Nilanthi, who oftenstepped in at her house on the way to sewing classes, requestedfor some water to drink and stated thus:
“Aunt, the Loku Mahataya requested me every day to comeover to Kitagama junction. I accordingly proceed to that spot, but hedaily disappoints me and is in the habit of getting me to waste mytime at this place.”
Somawathie alleged that this statement was made by Nilanthito her one month before her death. In fact in relation to these three 1010aspects of evidence, learned Additional Solicitor Generalstrenuously argued that they are admissible as conduct and theaccompanying statements which explain such conduct are alsoadmissible under the provisions of section 8(2) of the EvidenceOrdinance. We hold that in law these statements are made onlylogically relevant in as much as they stand in the relationship of"CAUSE AND EFFECT” to the fact in issue by the operation ofsection 8(2) and all three aspects of evidence which were referredto by the Additional Solicitor General are species or hearsayevidence, and are excluded by the general rule excluding hearsay 1020evidence. To render these statements legally admissible inevidence, it has to be established that they fall within the ambit ofsections 17-38 of the Evidence Ordinance which provide for theadoption of hearsay under well defined exceptions to the hearsayrule in Sri Lanka. These statements do not come within any of therecognized exceptions to the hearsay rule as set forth in theEvidence Ordinance. In the circumstances these statements areinadmissible in law to establish the truth of the assertions containedin those three statements. However, the persons to whom thesestatements were made namely witness Emalin, witness 1030Gunawathie and witness Somawathie could give direct evidence toestablish merely that such statements were made. (Vide Section60(1) and 60(2) of the Evidence Ordinance), but they cannot giveevidence of the statements with the object of proving the truth of theassertions contained in those statements. Thus Somawathie’s
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evidence that Nilanthi made such a statement and that she heardsuch a lament from Nilanthi is admissible only to prove that such astatement was made. Vide section 60 of the Evidence Ordinance.
However, it has to be emphasized that the learned trial Judgehas nowhere in his judgment relied on these three statements 1040(which were hearsay) for his adjudications and has not relied on thetruth of the facts contained in those assertions to arrive at findingsagainst the accused appellant. However, the whole of the statementmade by Nilanthi to her mother shortly before she left her home isadmissible in evidence in terms of section 32(1) of the EvidenceOrdinance.
I wish to amphasize that the witnesses for the prosecution A.M.Gunadasa, R. M. Jusie Appuhamy, W. M. Sugathadasa andMunasinghe Aratchilage Mutu Menika have stated that theywitnessed only one conflagration of the nature which they 1050witnessed on the 25th of October 1989 night, in the areasurrounding Kitagama junction and specifically that there were noother such conflagrations in the area. In regard to the evaluation ofthe evidence of witness Chulasiri, witness Emalin and witnessDingiriya, it is very pertinent to analyze their evidence in the light ofthe principles laid down by Justice Thackker in the celebrateddecision in Barwada Boghin Bhai Hirji Bhai v The State of GujeratI29) at 755, in regard to the sequence in which evidence is narratedby witnesses and the tendency on the part of the witness to mix upthe sequence of events in narrating his evidence in Court.1060
I have patiently and fully considered the submissionsadvanced on behalf of the accused appellant and the Republic. Wewish to express our appreciation of the devotion and dedicationdisclosed by learned President’s Counsel on both sides in theargument of this appeal before this Court on several dates and wewish to record our gratitude to junior counsel appearing on bothsides for their research and the carefully compiled written summaryof evidence and written submissions prepared by junior counsel forthe accused appellant.
For the reasons enumerated we hold that there is no merit in 1070his appeal and the evaluation of evidence, the findings and theconviction indulged in, reached and imposed respectively by the
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Seelawansa Them and Two others v Tennakoon, Additional
Secretary, Public Service Com. (Shirani Bandaranayake, J.)
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learned trial Judge is wholly justified and lawful, in the result, weproceed to dismiss the appeal of the accused-appellant.
KULATILAKA, J.- I agree
Appeal Is dismissed.