026-SLLR-1988-V2-CYRIL-ALIAS-KULARATNE-AND-OTHERS-V.-THE-STATE.pdf
CYRIL ALIAS KULARATNE AND OTHERSV.
THE STATECOURT OF APPEALC A. 134-139/85H C KURUNEGALA NO. 22/81RAMANATHAN J. W N. 0 PERERA JAND A. DE Z. GUNAWARDENA J.
NOVEMBER 14.15.16 and 17,1988.
Criminal Law — Charges of unlawful assembly and murder ~ Requirement ofproper directions to the jury regarding legally tenable verdicts.
At the conclusion of the trial the jury brought in a verdict which was not legallytenable After re-direction by the Trial Judge, the 2nd verdict returned was alsonot sustainable on the evidence. The confusion that arose in regard to theverdict may not have arisen in this case, if the Trial Judge related the facts of thiscase to the law that would be applicable to the possible verdicts that could bebrought against the accused. It is the duty of the Trial Judge to relate the facts ofthe case to the legally tenable verdicts that could be brought in a particular case.
Cases referred to:—1. Police Sergeant Kutatunga vs Mudalihamy 42 NLR 33. 34.
2 Lionel vs. Republic of Sri Lanka 79 NLR 553. 574.
APPEAL f rom Judgment of the High Court of Kurunegala.
D. S. Wi/esinghe for accused-appellants.
Moses Fernando Senior State Counsel for the State.
Cur. adv. vult..
December 12.1988
A. DE. Z. GUNAWARDANA J.
In this case 7 accused were charged on the following countsin the High Court of Kurunegala.
.. (T) That on or about the 21st of August 1978. the saidaccused were members of an unlawful assembly, thecommon object of which was to cause hurt to Jayasinghe* Mudiyanselage Jayasinghe Bandars and to commit
mischief to the boutique and bicycle belonging to thesaid Jayasinghe Bandara an offence punishable undersection 140 of the Penal Code. ■
{2} That at the time and place aforesaid and in the course ofthe same transaction the said accused being members ofan unlawful assembly commit the murder of the saidJayasinghe Bandara in prosecution of the said commonobject and are thereby guilty of an offence punishableunder section 296 read with section 146 of the PenalCode.
That at the time and place aforesaid and in the course ofthe same transaction the said accused being members ofan unlawful assembly did commit mischief to a boutiqueand bicycle belonging to said Jayasinghe Bandara to thevalue of Rs. 2250/- in prosecution of the said commonobject and are thereby guilty of an offence punishabeunder section 410 read with section 146 of the Pena)Code.
That at the time and place aforesaid and in the course ofthe same transaction the said accused committed themurder of said Jayasinghe Bandara and are thereby guiltyof an offence punishable under section 296 read withsection 32 of the.Penal Code.
That at the time and place aforesaid and in the course ofthe same transaction the said accused committedmischief to a boutique and bicycle belonging to saidJayasinghe Bandara to the value of Rs. 2250/- and arethereby guilty of an offence punishable under section410 read with section 32 of the Penal Code.
After four witnesses had given evidence at the trial, theprosecuting State Counsel has made an application to amendthe indictment to delete the allegation of "committting mischiefto the boutique and bicycle" in count 1. on the basis that hewould not be leading any evidence to substantiate the allegationof mischief. Thereafter the case proceeded to trial on count 1 as
amended, oh the basis that the common object of unlawfulassembly was only to cause hurt to Jayasinghe Bandara. At theconclusion of the prosecution case the Trial Judge directed thejury under section 2200) of the Criminal Procedure Code, toacquit all accused on counts 3 and 5 as there was no evidenceto substantiate these charges. Accordingly all accused wereacquitted on counts 3 and 5. Thereafter the case proceeded onlyon counts 1/2 and 4.
In consequence of an application made earlier by the Counselfor the defence to acquit the 4th accused as there was noevidence against him. the learned Trial Judge-inquired from theprosecuting State Counsel after six witnesses had givenevidence for the prosecution, whether he was going to call anywitnesses who would testify against the 4th accused. On beinginformed by State Counsel that he would not be calling anyevidence against the 4ih accused, the learned .Trial Judgedirected the jury under section 220(1) of the Criminal ProcedureCode to acquit the 4th accused. Accordingly at that stage the 4thaccused was acquitted. Thereafter the Trial proceeded onlyagainst 1. 2, 3, 5. 6 and 7 accused.
• At.the conclusion of the trial, jury brought in their first verdictagainst the accused as follows:
Count 1 —Count 2 —
Count 4 —
all accused were found guilty of being membersof an unlawful assembly.
only the 1st, 3rd and 7th accused were foundguilty of having committed the murder thecommon object of the unlawful assembly and theother 3 accused namely the 2nd, 5th and 6thwere acquitted on that count.
1st. 3rd and 7th accused were found guilty ofhaving committed the murder of JayasingheBandara on the basis of common intention andthe other three accused namely the 2nd, 5th and6th were acquitted on that count too.
At this stage the learned State Counsel raised an objection to the1st verdict of the jury and stated that it is not a legallysustainable verdict, and that the Trial Judge should redirect thejury in terms of the provisions of section 235(2) of the CriminalProcedure Code. The Counsel for the defence also had agreed tothis suggestion. Thereafter the learned Trial Judge redirected thejury and informed them that if they found the accused guilty oncount 1 they should find the accused guilty on count 2 as well,either for the offence stated in count 2 or for a lesser offence, ashaving comitted in prosecution of the common object. He hadalso redirected the jury on the liability that arises on the basis ofcommon intention. After the said redirection the jury had retiredand brought in the 2nd verdict which was as follows:
Count 1 — all accused guilty of being members of anunlawful assembly
Count 2 — all accused guilty of committing murder of thesaid Jayasinghe Bandara in prosecution of thecommon object of the unlawful assembly.
Count 4 — only the 1 st. 3rd and 7th accused were foundguilty of having committed the murder of the saidJayasinghe Bandara on the basis of commonintention. The 2nd. 5th and 6th accused wereacquitted on this count.
It is from this convictions and sentences that the accused haveappealed to this Court.
According to witness Nandasena. the 1 st witness called by theprosecution, the deceased came to return the watch which hehad borrowed from him. The deceased came on a bicycle andmet him whilst Nandasena was on his way to the field.Nandasena told the deceased that he cannot take it at that placeand to keep it at the boutique of the deceased or to return it tohis (Nandasena's) mother. After about 10 minutes Nandasenahad heard shouts from the direction of his house. ThenNandasena had rushed back in the direction from where thenoise came. When he went near the place of the incident which
was near Rosalin's house he saw his mother fallen. When hewent near the scene he had seen Wijetilake. the 3rd accusedstabbing the deceased Bandara who was fallen face upwards. Hesaw Jayakody the 7th accused holding the deceased. He hadseen Kularatne. the 1st accused cutting the deceased with asword. Having stabbed and cut the deceased in that manner, the1 st. 3rd and the 7th accused have dragged the deceased to theEla and put him into it. He specifically states that the other 3accused, i.e. the 2nd accused Seneviratne, the 5th accusedKarunatilleke and the 6th accused Gamini were standing awayfrom the place where the deceased was attacked. When askedfor the exact distance at which they were standing he had saidthat they were standing at a distance of about 25 feet away fromthe place where the deceased was attacked. They were not withthe three accused who attacked the deceased. The 1st 3rd and7th accused had dragged the deceased for a distance of about 4to 5 fathoms to put him into the Ela. After having put thedeceased into the Ela. Wijeyatilake the 3rd accused had comeand threatened them not to give evidence and if they did so. theywill also be killed and put into the Ela. He had heard somebodystanding some distance away, stating that even 7 people couldnot kill the deceased. Thereafter Wijeyatilake. the 3rd accusedhad run and got into the Ela and did something like stabbing thedeceased again. He had not seen clearly what 3rd accused did.He was very categorical that he did not see the 2nd, 5th and 6thaccused doing anything to the deceased. They were standing at adistance of about 25 feet away from the other accused. Thelearned Counsel for the appellant conceded that there is noinconsistency in the evidence of this witness but submitted that* his statement to the police was belated by two days. Accordingto this witness he did not make a statement to the police on theday of the incident because he was threatened by the accused. Italso transpired in evidence that this witness had been convictedfor robbery, rape and also had been fined for manufacturingillicit liquor.
Thereafter the prosecution led the evidence of Lenchina. themother of the earlier witness Nandasena. She had heardsomebody shouting "coj <reri sSdoocteHaving heard that
shout she had gone to the scene and seen the deceased fallen faceupwards. She had seen Kularatne. the. 1 st accused. Seneviratne2nd accused. Wije 3rd accused. Karune the 5th accused andJayakody the 7th accused assaulting the deceased withweapons. They were on the body of the deceased. Although shesaid that all were armed, she was unable to identify the type ofweapon that each accused had in his hand. She lost her temperwhen she saw the accused attacking the deceased. A little whilelater she lost consciousness. Thereafter she regainedconsciousness, and she saw the 3rd accused dragging thedeceased and putting him into the Ela. Thereafter the 1 st, 2nd,3rd and the 7th accused came and threatened them not to giveevidence and that, if they did, they would be cut and put into theEla. When she was cross-examined as to the type of weaponsthat were in the hands of the accused she had said that shecould not remember. She had identified a knife in the hands ofthe 3rd accused but had failed to recall having seen anyweapons in the hands of any of the other accused. When shewas asked why she did not make a statement to the police on theday of the incident, she had said that she was scared becauseshe was threatened by the accused. Her statement had beenrecorded by the police 2 days afterwards. Counsel for theappellant submitted that her evidence had been rejected by thejury because it was not coherant. He further submitted that shebeing an old lady had not been able to recall the incidentproperly. In addition she had lost consciousness twice that sameday, once, while the attack was on and for the second time, laterin the night, the same day. Hence her memory could have beenaffected. He submitted that her evidence was unsatisfactory, andno credence should be placed on it. In fact from the verdict ofthe jury it is clear, that jury has not believed her, when theyacquitted the 2nd, 5th and 6th accused. Although according toher, 2nd and 5th accused were also two of the persons, whoattacked the deceased. In our view the jury was correct in placingno credance on the evidence of this witness because of theunsatisfactory nature of her evidence.
The next witness called by the prosecution was Seelawathie.According to her when she was in the house she heard a shout"oadS er£cJ> ©SoS ” when she came to the place of the incident,she had seen the 1st accused Kularatne. 2nd accused Seneviratne.
3rd accused Wije. 5th accused Karune, 6th accused Gamini andthe 7th accused Jayakody. She had seen these accused havingan alteracation (SOQ gObdOj) with the deceased. She had seen the3rd accused stabbing the deceased with a knife, on the back ofhis chest. Then she had shouted for someone to come to help.She had seen Lenchina coming there at that time. She waschased away by the accused when she tried to intervene.According to her Lenchina lost consciousness shortly afterwards.Thereafter Lenchina's son Nandasena also came there. Havingattacked the deceased, they had dragged the deceased and puthim in the Ela. According to her, 3 people dragged the deceased.She had heard someone shouting "although there are six people,you all could not kill that man." Thereafter the 3rd accused hadjumped into the Ela and did something like cutting the neck ofthe deceased. The accused also had threatened her saying that ifanyone gives evidence that person will be cut and put into theEla. This witness had made her 1 st statement to the police theday after the incident but had not mentioned any of these details.Her explanation for not doing so was that she was threatened. Shehad come out with the details only in the 2nd statement whichshe had made 2 days later. In cross examination, she hadadmitted that she uttered falsehoods in- her first statement. Shehad not mentioned about the presence of Nandasena in her 1stor 2nd statement. Although she insisted that 9he told the policethat some person shouted that, even though there were 6 peoplethey could not kill the deceased, it was shown that she had notstated so. in her police statement. She had failed to mention tothe police that the 3rd accused stabbed the deceased. In her 1ststatement she had stated that on 21.8.78, that is, the day of theincident, that she had gone to the house of her sister. She deniedhaving stated so to the police. But was proved that she had toldthe police so, in her 1st statement. Although she stated that shedid not mention anything about the accused in her 1ststatement, it was proved that in fact she had mentioned the nameof the 1st accused, as having seen coming running towards heron the road, that day. This contradiction was marked as VI.According to her, the 3rd accused kept the head of the deceasedon his lap and stabbed him. But she has not mentioned this inher statement to the police. She has stated that she identified theweapons in the hands of some of the accused. In her statement
to the police however, she had merely, mentioned that theothers had clubs and other weapons; this contradiction wasmarked as V2. Learned Counsel for the appellant submittedthat in view of these contradictions and deficiencies in herevidence and further buttressed by fact that she had admittedhaving made a false statement to the police, her evidence wasnot worthy of credit. It is clear that the jury had also taken thesame view and they had disbelieved her. We are of the viewthat there is much merit in this submission, and that the juryhad rightly discredited her evidence.
According to the medical evidence the deceased is alJegedto have sustained 51 injuries. Most of them were cut injuries.Of them only 3 have been described as grievous. That is.
Injury No. 2 — a cut injury on the nose
Injury No. 5 cut injury on the eyeball
Injury No. 29, cut injury 5 Vi" long on the right leg.
The cause of death has been given as shock and haemorrhageas a result of multiple cut injuries of the body.
The accused when called for their defence, did not giveevidence, but the 1st accused made a statement from thedock. In his statement he stated that on the day in question hewent to meet one Kiribanda to his house and when he wastalking to Kiribanda the deceased came in a bicycle andcrashed on to him. Then he fell. Thereafter, the deceasedpulled out a knife and stabbed him several times and he heldhis hand out in defence. Seneviratne. the 2nd accused whowas there grappled with the deceased and snatched the knifefrom thp deceased. Thereafter he has dealt several blows onthe deceased, in the exercise of the right of private defence.This incident took place on the bund of the Ela. As he fearedfurther attacks from the deceased he pushed the deceasedinto the Ela. Having thrown away the knife he and Seneviratne.the 2nd accused, went to the Giribawa Police Station.According to him, at the time of the incident. Kiribanda and2nd accused. Seneviratne. were the only persons there. Police
had given them a ticket to enter the hospital. They had gone andadmitted themselves to the hospital. In fact this part of the storyis corroborated by the Police who have arrested the 2nd accusedat the hospital that same night. The version given by the 1 staccused is further corroborated by evidence given by Dr. C.Illangakone who has produced the medical legal report- andspoken to 5 injuries sustained by the accused. None of themwere self inflicted. Injury No. 1 is* a cut injury on the wrist jointand according to her it has been inflicted by a sharp cuttinginstrument. According to the doctor injury No. 1 is a defenceinjury which had been inflicted whilst avoiding a blow by a sharpcutting weapon. Injury No. 3 could have been caused if he fell ona rough surface whilst struggling with another person. Accordingto the history given by the accused these injuries have beencaused on 21.8.78 by an assault by a known person. This doctorhas also given evidence about the injuries sustained by the 7thaccused Jayakody. He had 8 injuries of which 3 were cut injuries,the others were abrasions. He has also given a history of assaultbut not given the name of the assailant. He had been examinedon 28.8.78. The manner in which the 1st and 7th accused havesustained the injuries has not been explained by any of theprosecution witnesses. Furthermore, the first informationregarding this incident had been given to the police by the 1 staccused. Therefore, it lends support to the contention made bythe Counsel for the appellants, that the injuries on thedeceased were caused in a sudden fight, and that theprosecution witnesses have not come out with the full story, asto the manner in which the deceased came by his death.
The Counsel for the accused appellants, and 'also ,the StateCounsel conceded that the only credible evidence in thiS case isthat of Nandasena. On the evidence of Nandasena it is clear thathe has come to the scene after the incident has started.Therefore he would not have known how the incident started.The bicycle also has been produced as a production in this case.Therefore, it appears that the incident would have started in themanner the 1 st accused has described, and it is reasonable to
assume that the injuries would have been caused in a suddenfight. This is consistent with the evidence given by Nandasena.
As pointed out earlier the jury also has acted only on theevidence of Nandasena. However, the jury has failed toappreciate that even if Nandasena is believed fully, that it doesnot prove beyond reasonable doubt that the 2nd. 5th and 6thaccused took part in the attack nor were they near the scene ofthe attack. They were 25 feet away from the place of the attackand offered no encouragement or help. As pointed out byHoward C.J. in Police Sergeant Kulatunga vs. Mudalihamy (1)to bring home a charge of unlawful assembly under section140. "So far as each individual accused was concerned it hadto be proved that he was.a member of the unlawful assemblywhich he intentionally joined. Also that he knew of thecommon object of the assembly." In our view the evidenceavailable falls short of such proof. The evidence of Nandasenadoes not show that the 2nd. 5th and 6th accused shared thecommon object of causing hurt to Jayasinghe Bandara or thatthey intentionally joined the unlawful assembly. Therefore weare of the view that 2nd, 5th and 6th accused should beacquitted on both counts 1 and 2. The resulting positionwould be. that the charge of unlawful assembly would fail inrespect of the 1 st. 3rd and 7th accused and they would alsobe entitled to an acquittal on count 1 and 2. Then the onlycount that will be left against 1st, 3rd and 7th accused wouldbe count 4. viz. of being guilty of murder, of JayasingheBandara on the basis of common intention.
In the light of the view that we have taken in regard to themanner in which this incident seems to have taken place,namely, that the injuries on the deceased and the accusedwould have been caused in a sudden fight, the 1st, 3rd and7th accused would then be guilty of culpable homicide notamounting to murder on the basis of a sudden fight.Accordingly the verdict of the jury convicting them for murder,and the sentence of death imposed on them is set aside, andinstead a verdict of culpable homicide on the basis of suddenfight is substituted thereon, in respect of 1st, 3rd and 7thaccused, and each of them is sentenced to >10 years R. I.
There is one other matter on which this Court is impelled tocomment namely, that the confusion that arose in regard to theverdict may not have arisen in this case if the Trial Judge relatedthe facts of this case to the law that would be applicable to thepossible verdicts that could be brought against the accused inthis case. The Trial Judge has referred to’ the case Lionel vs.Republic of Sri Lanka (2) where the following quotation from thejudgment of the Court of Appeal of United Kingdom was citedwith approval.
• "In the judgment of this court, if the trial Judge had notcommented in strong terms on the appellant's absence fromthe witness box. he would have been failing in his duty. Theobject of a summing-up is to help the jury and in ourexperience a jury is not helped by a colourless reading outof the evidence as recorded by the Judge in his notebook.The Judge is more than a mere referee who takes no part inthe trial save to intervene when a rule of procedure orevidence is broken. He and the jury try the case togetherand it is his duty to give them the benefit of his knowledgeof the law and to advise them in the light of his experienceas to the significance of the evidence and when an accusedperson elects not to give evidence, in most cases but not all,the judge should explain to the jury what the consequenceof his absence from the witness box are and if, in hisdiscretion he thinks that he should do so more than once,he may: but he must keep in mind always his duty .to befair."
Although the Trial Judge quoted this quotation with approvalto the jury he has unfortunately not given full expression to theprinciples enunciated there, for we see that in the s.umming-upthe learned Trial Judge has Compartmentalised his summing-upto two sections, namely, the first part dealing with the law andthereafter the second part where he has given a summary of theevidence of each witness. Instead, the Trial Judge should haverelated the facts of the case to the relevant law. which would• help the jury to arrive at a legally tenable verdict. It is our view,that this failure resulted in-the confusion that arose in this case,which occasioned the jury to bring in two verdicts, which werenot tenable in law. Therefore, in our view it is the duty of the TrialJudge to relate the facts of the case , to the legally tenableverdicts that could be brought in a particular case. This willgreatly help in the discharge of the functions of the jury andfacilitate the due administration of justice.
RAMANATHAN J. — I agree
W.N.D.PERERAJ. — I agree.
Verdict of murder set aside. Verdict of culpable homicide notamounting to murder substituted against 1. 3. and 7 accusedand accused sentenced to 10 years Rl each. Other accusedacquitted.