C.A. 93-99/99/ H. C. Ratnapura 121/94 - State v Dayananda Lokugalappathi and others (Embilipitiya children's case)
IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
C.A. 93-99/99
H.C.Ratnapura 121/94
1. Dayananda Lokugalappathi
2. Hirantha Chaminda Lokugalapatthi
3. Rohana Parakrama Liyanage
4. Widanagamage Jaliya Dananjaya Epa
5. Gavesh Ginige
6. Kadupitiyage Vajira Vishista Chamarasinghe
7. Samaratunga Aarachchilage Senaratne
8. Kariyawasam Haputantri Gamage Upul Chandra
9. Ethugalage Jackson Kumarasinghe
Accused
And
1. Dayananda Lokugalappaththi
2. Widanagamage Jaliya Dananjaya Epa
3. Gavesh Ginige
4. Kadupitiyage Vajira Vishishta Chamarasinghe
5. Samaratuge Aarachchige Senaratne
6. Kariyawasam Haputhantrigamage Upul Chandra
7. Ethugalage Jakson Kumarasinghe
Accused-Appellants
vs.
The State
Before: P.H.K. KULATILAKA, J. & RAJA FERNANDO, J.
Counsel:
Dr. Ranjith Fernando with Sandamali Munasinghe, Sandamali Manatunga and Kaweendra Nanayakkara for the 1st, 3rd, 5th, 6th and 7th Accused-Appellants.
Ranjith Abeysuriya, P.C., with Sharmaine Goonaratne, Lanka de Silva and Dinusha Mirihana for the 4th Accused-Appellant.
A.S.M. Perera, P.C., with Shamila Daluwatte and Neville Ananda for the 2nd Accused-Appellant.
Palitha Fernando, Deputy Solicitor-General with Sarath Jayamanne, Senior State Counsel, and Mohan Seneviratne, State Counsel, for the Attorney-General.
R.K.W. Gunasekera with M.A. Justin J.C. Weliamuna, S.P. Denaratne, Priyadarshani Dias, P. Gunawarnasuriya, Chandima Sugathadasa and S. Liyanage for the aggrieved party.
Argued on: 02.05.2001; 28.05.2001; 29.05.2001; 11.06.2001; 12.06.2001; 18.06.2001;
19.06.2001; 25.06.2001; 26.06.2001; 02.07.2001; 03.07.2001; 09.07.2001;
10.07.2001; 17.07.2001; 18.07.2001; 31.07.2001; 02.08.2001; 27.08.2001;
29.08.2001; 03.09.2001; 04.09.2001; 05.09.2001; 10.09.2001; 11.09.2001;
12.09.2001; 17.09.2001; 19.09.2001; 24.09.2001; 25.09.2001; 26.09.2001;
23.10.2001; 24.10.2001; 25.10.2001; 30.10.2001; 05.11.2001; 06.11.2001;
07.11.2001; 12.11.2001; 13.11.2001; 19.11.2001; 20.11.2001; 21.11.2001;
22.11.2001; 26.11.2001; 27.11.2001; 28.11.2001; 29.11.2001; 03.12.2001;
07.12.2001; 10.12.2001; 11.12.2001; and 12.12.2001
Decided on: 04.01.2002
P.H.K. KULATILAKA, J.
In this prosecution before the High Court of Ratnapura sitting without a jury nine accused were indicted on a total of 80 counts to wit:
Count No. 1 related to conspiracy to commit acts of abduction or aiding and abetting to abduct in order to secretly and wrongfully confine certain unidentified persons in Embilipitiya area, an offence punishable under Section 356 read with Section 113(b) and Section 102 of the Penal Code.
Count No. 2 related to conspiracy to commit acts of abduction or aiding and abetting to secretly and wrongfully confine 25 identified and named persons in the Embilipitiya area, an offence punishable under Section 356 read with Section 113(b) and Section 102 of the Penal Code.
Count No. 3 related to conspiracy to commit acts of abduction or aiding and abetting to abduct certain unidentified persons in Embilipitiya area in order that such persons may be murdered or may be so disposed of to be put in danger of being murdered, an offence punishable under Section 355 read with Section 113(b) and Section 102 of the Penal Code.
Count No. 4 related to conspiracy to commit acts of abduction or aiding and abetting to abduct 25 identified persons in order that such persons may be murdered or may be so disposed of to be put in danger, of being murdered, an offence punishable under Section 355 read with Section 113(b) and 102 of the Penal Code.
Count Nos. 1 to 4 related to all nine accused.
Count No.5 to 29 related to the abduction, of 25 named persons with the intention of wrongfully confining them, an offence punishable under Section 356 read with Section 32 of the Penal Code.
These counts were preferred against the 4th, 5th, 6th, 7th, 8th and 9th accused.
Count Nos. 30 to 54 related to abduction of the same 25 named persons with the intention to commit murder or to be so disposed of as to be put in danger of being murdered, an offence punishable under Section 355 read with Section 32 of the Penal Code.
These charges are preferred against the 4th, 5th, 6th, 7th, 8th, and 9th accused.
Count Nos. 55 to 79 related to the wrongful confinement exceeding ten days in respect of the same 25 named persons, an offence punishable under Section 335 read with Section 32 of the Penal Code.
These charges were preferred against the 3rd, 4th, 5th, 6th, 7th, 8th and 9th accused.
Count No. 80 related to the wrongful confinement of one Nimal Sugathapala exceeding ten days, an offence punishable under Section 335 read with Section 32 of the Penal Code. These charges are levelled against the 3rd, 4th, 5th, 6th, 7th, 8th and 9th accused.
After trial all the accused were acquitted of counts 1 and 3 for conspiracy to abduct unidentified persons. The 2nd and 3rd accused were acquitted of all the charges preferred against them. The accused who were charged under counts 55 to 79 for committing offences preferred in terms of Section 335 read with Section 32 of the Penal Code were acquitted. So were the accused charged on count 80.
The 1st accused-appellant was convicted on counts 2 and 4 and was sentenced to five (5) years' rigorous imprisonment and the (10) years rigorous imprisonment respectively. Sentences are to run concurrently.
The 4th accused who is the 2nd accused appellant was convicted on counts 2, 4, 7, 32, 11, 36, 13 and 38 and was sentenced to five (5) years' rigorous imprisonment on counts 2, 7, 11, 13 and to a term of ten (10) years rigorous imprisonment on counts 4, 32, 36 and 38. Sentences are to run concurrently.
The 5th accused who is the 3rd accused appellant was convicted on counts 2, 4, 5, 30, 6, 31, 11, 36, 12, and 37. He was sentenced to five (5) years' rigorous imprisonment on counts 2, 5, 6, 11 and 12 and to a term of the ten (10) years' rigorous imprisonment on counts 4, 30, 31, 36 and 37. Sentences are to run concurrently.
The 6th accused who is the 4th accused appellant was convicted on counts 2, 4, 7, 32, 11, 36, 13, 38, 23, 48, 27 and 52. He was sentenced to five (5) years' rigorous imprisonment on counts 2, 7, 11, 13, 23 and 27 and to a term of ten (10) years' rigorous imprisonment on counts 4, 32, 36, 38, 48 and 52. Sentences are to run concurrently.
The 7th accused who is the 5th accused appellant was convicted on counts 2, 4, 6, 31, 9, 34,10, 35, 11, 36, 13, 38, 18, 43, 20, 45, 21, 46, 22, 47, 23, 48, 24, 49, 26, 51, 27, 52, 29, 54, (19, 44). He was sentenced to five (5) years' rigorous imprisonment on counts 2, 6, 9, 10, 11, 13, 18, 19, 20, 21, 22, 23, 24, 26, 27, 29 and (19) and sentenced to a term of ten (10) years' rigorous imprisonment on counts 4, 31, 34, 35, 36, 38, 43, (44), 45, 46, 47, 48, 49, 51, 52 and 54. Sentences are to run concurrently.
The 8th accused who is the 6th accused appellant was convicted on counts 2, 4, 9, 34, 10, 35, 18, 43, 23, 48, 26, and 51. He was sentenced to five (5) years' rigorous imprisonment on counts 2, 9, 10, 18, 23, and 26 and to a term of ten (10) years' rigorous imprisonment on counts 4, 34, 35, 43, 48 and 51. Sentences are to run concurrently.
The 9th accused who is the 7th accused appellant was convicted on counts 18 and 43 and was sentenced to five (5) years' rigorous imprisonment on count 18 and ten (10) years' rigorous imprisonment on count 43. Sentences are to run concurrently.
The above accused-appellants have appealed against the conviction and sentence.
In view of the mass of evidence that was led in the case it is pertinent to keep in mind the respective positions the accused-appellants occupied in the dock at the trial Court. The 1st accused-appellant was the 1st accused at the trial. The 2nd accused-appellant was the 4th accused at the trial. The 3rd accused-appellant was the 5th accused at the trial. The 4th accused-appellant was the 6th accused at the trial. The 5th accused-appellant was the 7th accused at the trial. The 6th accused-appellant was the 8th accused at the trial. The 7th accused-appellant was the 9th accused at the trial.
After considering the evidence led against the 7th accused-appellant at the trial, the observations made by the learned trial Judge at the closure of the prosecution case and the submissions made by the learned senior counsel who appeared who appeared for the 7th accused-appellant and also the learned Deputy Solicitor-General on behalf of the Attorney-General during the course of the argument before us we acquitted the 7th accused-appellant.
We have very carefully considered the submissions made by the learned senior counsel who appeared for the 1st, 3rd, 5th and 6th accused-appellants and the submissions made by the learned President's Counsel who appeared for the 2nd accused-appellant and also the submissions made by the learned President's Counsel who appeared for the 4th accused-appellant. We also gave our minds to the submissions made by the learned Deputy Solicitor-General on behalf of the Attorney- General and Mr. R. K. W. Gunasekera, Senior Counsel for the aggrieved parties.
At the commencement of their submissions the learned Deputy Solicitor-General and thereafter the senior counsel for the aggrieved parties submitted to Court that in order to adequately understand the alleged conspiracy, it is incumbent upon Court to be conscious of the background of the events that prevailed in Embilipitiya during this time as deposed to by the prosecution witnesses. It is common knowledge that in 1989/90 there was an uprising in the South geared by the JVP. The government of the day had stationed army camps all over the country with a view to crush the Southern insurrection immediately. One such camp namely Sevana camp was set up at Embilipitiya. That was a time when law and order had failed.
At the time of the conspiracy and abduction of 25 students as alleged in the indictment from some schools in Embilipitiya, the 1st accused-appellant was the Principal of Embilipitiya Madya Maha Vidyalaya. He was in fact serving as the head of the cluster schools in Embilipitiya.
Witness Sujatha Kalugampitiya then Principal of Moraketiya Vidyalaya testified that prior to the 1st accused-appellant's coming to Embilipitiya Madya Maha Vidyalaya as its Principal there had been student unrest during Principal Jayatissa's time over an attempt to acquire a portion of the school playground for the purpose of putting up a filling station. The 1st accused-appellant had supported the student agitation which in fact paved the way for him to come as the Principal of that school. Even after his coming there as the Principal the student unrest continued which made him to arm himself with a pistol and a hand bomb as well, as deposed to by witnesses. Apparently, the 1st accused-appellant's explanation in this regard was that the prosecution witnesses would have mistaken a wood apple he was carrying to be a hand grenade.
The student unrest appears to have heightened when the students themselves were divided into two camps over a love affair the 2nd accused (at the trial) who was the son of the 1st accused-appellant supposed to have had with Pavitra Ranmali a girl studying in Grade II A in that school. There was also evidence of students hooting at the Principal the 1st accused-appellant when he was going back to his official residence after a meeting with the parents. Thus according to the prosecution the 1st accused-appellant had a grudge against the students and that he had ear marked a number of students as trouble makers and was determined to get rid of them. The prosecution version is that to achieve that end he got the support of men in uniform stationed at the Sevena camp which was about 200 yards away from the school.
According to the prosecution witnesses the 6th accused-appellant, 4th and 5th accused-appellants were seen in the school premises, Principal's office and the official residence during his period, showing that a close rapport and liaison had existed between the 1st accused-appellant and the men in uniform. So much so, that at times they addressed the 1st accused-appellant as "uncle".
The learned Senior Counsel who appeared for the 1st accused-appellant submitted that no aspertions can be directed at the 1st accused-appellant for getting the army personnel to guard the school premises for the reason that the circumstances that prevailed in Embilipitiya was so tense that the 1st accused-appellant had to seek protection from army personnel. Albeit, at the trial the 1st accuse-appellant's position was that the army men were present only on occasions when the politician visited the school. It was an attempt to distance himself from the army.
The learned Deputy Solicitor-General submitted that the parents were under the impression that their children were taken away by the army personnel because they had committed some offences, but they expected that they would be dealt with according to law. When they realised that it was not going to be so they went to the local police with a view to get their children back but the local police did not entertain their complaints. In fact Sujatha Kalugampitiya had rushed to the Embilipitiya Police that very morning but the Police refused to record her complaint. This was the story that came out from the mouths of the parents and brothers and sisters of the missing students before the learned trial Judge. Of the accused-appellants except for the 1st accused-appellant who was the Principal of Embilipitiya Madya Maha Vidyalaya the others were army officers/soldiers.
An examination of the evidence in the case reveals certain significant features, namely:
1. that almost all the persons abducted were school children studying in Grades 10, 11 and 12 classes.
2. majority of the abducted children were students of Embilipitiya Madya Maha Vidyalaya wherethe 1st accused-appellant was the Principal.
3. that the parents of the abducted students soon after the abductions had hurried to the 1st accused-appellant to complain about the abductions crying for help from him knowing the close relationship between the Principal and the army personnel.
4. that the manner and the time of abduction in most cases were similar.
5. that most of the abducted children had been taken directly to Sevana army camp.
6. that most of the parents were under the impression that their children had been involved in some illegal activity and that was the reason why the Army arrested them. Albeit, they expected that their children would be dealt with according to law. They did not want to believe that their children were not among the living, so much so that some mothers stood at the gate in tears for weeks expecting that their children would be released.
7. that most of the parents and relatives while giving evidence complained to Court about the manner in which the local police treated them when they went to make complaints. Either the police did not want to record their complaints or even in cases where the police took down their statements, deliberately they had omitted to record vital matters they spoke of to the police.
8. that there was a fear psychosis prevalent among the people of the area during and after the relevant period. Except in few cases only the mothers testified to the abduction of their children.
One of the arguments adverted to by the learned Senior Counsel who appeared for the 1st, 3rd, 5th, 6th accused-appellants and the 7th accused-appellant (acquitted by this Court during the argument) was that the prosecution has failed to establish beyond reasonable doubt the pre requisite intention to establish the offence of abduction. He argued that if the prosecution fails to show that such intention was entertained by the accused-appellants at the time of abduction, then the prosecution should fail.
Section 353 of the Penal Code defines the term "abduction" in the following terms:
"Whoever by force compels or by deceitful means, or by abuse of authority or any other means of compulsion induces any person to go from any place is said to abduct that person".
According to the above definition the essence of abduction lies in inducing or compelling any person to go from one place to another in one of the following ways:
1. by force
2. by abuse of authority or any other means of compulsion
3. by use of deceitful means.
In the instant case the prosecution witnesses spoke of their children being taken away either by use of force or by deceitful means.
The charges of abduction have been levelled against the accused-appellants, on the basis, firstly that the students were abducted with intent to cause them to be secretly and wrongfully confined ad secondly, for compelling or inducing of the victims for the following purposes:
a. to murder
b. be so disposed of as to be put in danger of being murdered.
It must be observed here the fact that the purpose specified in the charge was not in fact accomplished does not exculpate an accused from criminal liability, so long as the offence of abduction is proved to have been committed with that purpose in mind.
There is no doubt that in a charge of abduction intention is a necessary ingredient. It does not mean that the test applied is a subjective test to be proved by the prosecution beyond reasonable doubt. It has been held that the actual intention of the abductors at the time of abduction could be inferred from the circumstances, such as the time and manner of removal, the number of persons engaged in the enterprise. Vide the judgment of Sansoni, J in Queen vs. M. Murugesu 65 NLR 11 at page 16. Hence the test applied is an objective test.
The learned senior counsel who appeared for the 1st, 3rd, 5th and 6th accused-appellants contended that the abductors could not have entertained both intentions—namely an intention to wrongfully confine the abductees and an intention of murdering or disposing of the abductees so as to put them in danger of being murdered referred to in the two sets of charges on abduction contained in the indictment. In dealing with this contention, we must be mindful of the legal position that the offence of abduction is a continuing offence and that the principle of aggravation of liability on account of a specific intent is applicable to the offence of abduction. The full mens rea required for the specific intent is not expressed in the accused's immediate commission of the material acts of the offence, namely manner of entry to the houses of the abductees, manner of removal, the number of persons engaged in the exercise, whether the abductees or their household members protested or not, whether the abductors used force or not or took them by deceitful means. The evidence in the case reveals that intention of murdering or disposing of the abductees so as to put them in danger of being murdered superimposed on the primary intention entertained by the abductors namely to cause the abductees to be secretly and wrongfully confined. Hence the intention required to establish liability for the aggravated offence is a combination of the general intent which is the feature of the basic offence and the particular intention which is peculiar to the more serious offence. Vide chapter 11 of G. L. Peiris's "General Principles of Criminal Liability in Ceylon". The evidence in the case clearly establishes that the abductions were primarily for the purpose of secretly and wrongfully confining the abductees. The prosecution also has established that after arresting the abductees they had been tortured at the Sevana camp which was the abode of the accused-appellants, made use of them to get information and thereafter disposed of the abductees. Hence it can safely be inferred that the prosecution has through circumstantial evidence (discussed later in the judgment) has proved the specific intent required to establish liability for the aggravated offence. In view of the material set out above we are unable to agree with this contention of the learned senior counsel.
If an accused had any intention other than what is suggested by the natural circumstances of the case the burden lies upon him under Section 106 of the Evidence Ordinance to prove his innocence. Vide R vs. Mohamed Sidiq AIR (1938) Lahore, 474.
The learned Deputy Solicitor-General strongly submitted that the learned trial Judge has taken into consideration the manner of abduction of these abductees from their parents. Further the learned counsel invited our attention to the prevailing circumstances at Embilipitiya during this period and that those circumstances also be looked into when considering the issue of abduction.
It is evident from the testimonies of witnesses who spoke of the removal of their children by giving them the impression that their children had done something against the law and it was for that reason that the Army Officers stationed at Sevana army camp took away their children, they thought that their children would be dealt with according to law. But they later realised that their children were never to be seen again alive or dead.
Considering the manner of abduction, in some cases the abductors had come under the guise of police officers. They got the inmates of the house to open the doors for them to enter and take away the abductees, stating that they were from the Police. In some cases they came under the guise of "deshapremi" members. In cases where the inmates were reluctant to open the door s they broke open the doors and came in. In some cases they took away the abductees by force and in that process assaulted or caused physical harm and harassment to the parents and relatives of the abductees as well. In some cases children were taken away by deceitful means telling the parents and the relatives that they were being taken away for the purpose of recording a statement. Parents never ever saw their children so taken alive or dead. Witnesses described the dress the abductors wore. Some wore shirts and sarongs, some shirts and shorts. One abductor had covered his head with a cap in one occasion and a towel on another occasion. Most of the abductions had been executed in the night, forcing the inmates to switch off the lights with a view to conceal their identity. In fact they terrorised the inmates.
The learned President's Counsel who appeared for the 2nd accused-appellant went on to say that in order to curb the insurrection the Army officers were authorised to arrest any person. It should be noted that such a position was never taken up at the trial. However, the learned Deputy Solicitor-General met this argument by submitting that if they came as Army officers without hiding the identity and arrested them that could have been lawful and he may not have any complaint to make as to the manner of abduction.
In this regard we would refer to the testimonies of some of the parents recounting the manner in which the abductors conducted themselves at the time they took away the children. Some children were hiding under the bed when they were mercilessly dragged out. Sujatha Kalugampitiya who was the Principal of Moraketiya Maha Vidyalya from 1980 to 1996, is the mother of Raskika Wijetunga. She described what happened on 6 November 1989. Around 11.30pm she woke up hearing the door bell. She hesitated a while and then proceeded to the window to see who were around. She saw two persons in army uniform in the compound. At that point of time her daughter as well as her son Rasika Wijetunga were up. They heard somebody knocking at the door heavily saying that they were from the police. So saying they broke open the door.
At that time there was a light burning near the Lord Buddha's picture which was hung near the front door. There was another light burning near her deceased husband's photograph. There was a big light burning at the centre garden. One of the persons entered the house and ordered them to switch off the lights. He asked for Rasika. He was wearing a T-shirt with a round neck and a sarong. He was wearing a cap as well and was holding a torch in one hand and a pistol in the other. That person got hold of her son Rasika Wijetunga and told the witness that he would send her son back in half an hour. That was the last time she saw her son alive. The abductor's face was familiar to her because she had seen him before. She had seen him after the abduction at the old Sevana camp when she went in search of her son. Then he was in uniform. At the trial this witness identified the 3rd accused-appellant as the person who came into her house and removed her son Rasika Wijetunga. It is significant that the 3rd accused-appellant and the others posed themselves as police officers. They came in the night, broke open the door armed with pistols and took away RasikaWijetunga by deceitful means giving the assurance that he would be returned in half an hour.
Sirinawathie de Silva was the mother of Ruwan Ratnaweera, 16 years of age at the time of abduction on 16.11.89. The time was between 10 and 11 pm. There was a lamp hung at the Buddha statue which was lit and there was a bulb illuminating the Halo. She heard the door bell and queried as to who rang the bell, some persons from outside told her that they were from the police and ordered her to open the door. When she complied four persons entered the house and ordered her to switch off the lights. She switched off the lights. She switched off the lights in the house, nevertheless the lamp hung at the Buddha statue was not put off and was still burning. They asked for Ruwan Ratnaweera. That time Ruwan Ratnaweera was sleeping at a friend's house at the Mahaweli Circuit. Therefore he was not in the house. The intruders had pistols. One of them got hold her son Upali Ratnaweera, dragged him, hit him with the pistol and put him on the floor. They assaulted her eldest son Ananda Ratnaweera asking for the whereabouts of Ruwan Ratnaweera, put him also on the floor. Thereafter she said that the 2nd accused-appellant dragged her to the place where her two sons were lying and put her on the floor as well. Thereupon the 4th accused-appellant held her by her neck and throttled her, putting his hands from behind. She said she lost consciousness. The 2nd accused-appellant hit her again on her back and said "bitch give us the son that you bore". Thereafter the 2nd accused-appellant trampled the neck of her son Upali Ratnaweera and threatened to kill him if she did not tell the whereabouts of Ruwan Ratnaweera. Her daughter Nirmali and her husband Sirisena Wickremaaratchi who were in one of the rooms too were brought there. The 4th accused-appellant assaulted Sirisena Wickremaaratchi as well. Then they held Sirisena Wickremaaratchi from his neck and left the house with him in order to get hold of Ruwan Ratnaweera. It is significant to note that in this case too the abductors came in the night armed with pistols. They posed as police officers and entered the house. Then they assaulted the mother, father, Ruwan Ratnaweera's brothers and brother-in-law Sirisena Wickremaratchchi before they left with Wickremaaratchi with a view abduct Ruwan Ratnaweera. In this instance witness identified the 2nd accused-appellant and the 4th accused-appellant out of the four people who entered her house that night.
Kankanam Pathiranage Lionel is the father of Prabath Kumara 16 years of age abducted on 17.11.89. He testified that on that day between 12 mid-night and 1 a.m. he heard a knock at the door, ordering him to open the door saying that they were from the Kuttigala Police. When he opened the door he found two of his sons friends Dammikka Kumara Baragamarrachchi and Susil Kumara at the door step in the company of five persons who were in army uniform. Two of them came to the house and one of them assaulted his younger son and asked for Prabath Kumara. He identified these two persons who came in as the 5th and 6th accused-appellants. When he told them that the son was living elsewhere they ordered him to come with them to show the place. They were armed with T56 guns. Thereafter he was put to a white coloured van. Apart from Dammikka Kumara and Susil Kumara, there were a number of persons inside the van. He saw Anura Gonawala also inside the van. Lionel was ordered to lie down on the floor of the van. At some place the army officers alighted from the van along with Anura Gonawala and at that point of time another boy who was inside the van spoke to him. He identified him as Principal Jukama Jayasena's son Chamara Jayasena. In fact Chamara Jayasena had been abducted on 11.11.89. Thereafter the army officers came back with Anura Gonawala and along with them they brought another person who was blind folded. Thereafter Lionel was asked to cover his face with his sarong and took him to Garusinghe Aratthige Sirisena's house where Lionel's son was sleeping. They wanted Lionel to call Sirisena. He called him "Garu Garu" and when Sirisena opened the door the army men asked him whether there was a guest in his house. Then he had said that "the son of the person who called him" was there. Thereafter they took Prabath Kumara and pushed Lionel to Sirisena's house and closed the door. Lionel in his evidence categorically spoke of the participation of the 5th accused-appellant and the 6th accused-appellant in all these episodes. His evidence unveiled before the trial Court the manner in which not only his son was abducted but also how Dammikka Kumara Baragamaaratchi, Susil Kumara, Pradeep Wijesinghe and Chamara Kumara were abducted.
Upul Janaka Perera, a Graduate of the Ruhunu University (at the time of giving evidence) was himself abducted on 7.11.89. That was the when he was inquiring about his missing brother who had been abducted and seen at the Sevana camp on 30 October 1989 by his mother and father. He was arrested around 4 a.m. on that day by the 5th accused-appellant. He was taken on the pretext of getting him to show the house of one of his friends. When he queried from the 5th accused-appellant abut his brother he was hit on his head with the pistol the 5th accused-appellant was carrying with him saying that he was "too talkative". When Upul Janaka was taken out he was wearing only a sarong. He was pushed into a white coloured van and when he turned towards the occupants he was assaulted and ordered to cover his face with the sarong he was wearing. He was naked then. He was taken to Sevana camp and there he was asked to wear his sarong again. That point of time he saw 15 to 17 persons tied on to a chain. They were naked. He was later released. His evidence not only showed the manner in which he was abducted and the ordeal he had to face but also how the abducted were kept inside the Sevana camp waiting for their Doomsday.
We have considered not only the evidence of these witnesses referred to above but also the evidence elicited from the other witnesses as to how their children or relatives were abducted by the accused-appellants. The prosecution has furnished sufficient evidence to prove inferentially that the abductors had abducted the persons referred to in the charges firstly, with intent to cause them to be secretly and wrong fully confined and secondly, in order that such person be murdered or be so disposed of as to be put in danger of being murdered. We hold that on the evidence led before the trial Court such a conclusion is irresistible. In the circumstances the submissions adverted to by the learned counsel that the evidence did not establish a charge of abduction should fail.
The learned Senior Counsel who appeared for the 1st, 3rd, 5th, 6th and 7th accused-appellants made a submission with which the two President Counsel also associated themselves with, that in a charge of conspiracy the facts placed before the trial Court should be such that they cannot fairly be admitted to another inference being drawn from them. The learned counsel contended that the evidence led by the prosecution in this case was insufficient to establish the agreement/common purpose participation. What is conspiracy is defined in Section 113 A of the Penal Code in the following terms:
"If two or more persons agree to commit or abet or act together with a common purpose for or in committing or abetting an offence, whether with or without any previous concert or deliberation, each of them is guilty of the offence of conspiracy to commit or abet that offence, as the case may be."
The law does not envisage the prosecution to prove any direct concert or even any meeting of the conspirators. Vide the judgment of H.N.G. Fernando, C. J. in Queen vs. Liyanage 67 NLR 203. As common to most of the conspiracy charges in this case too the prosecution had to rely upon circumstantial evidence to prove its case. What is important is the cumulative effect of the totality of the evidence led before the trial Court.
It is not necessary to lead any evidence to establish that the conspirators had met, put their heads together and then agreed to execute their common purpose. It is not necessary to prove that they knew each other earlier. Yet in establishing detected acts of each of the accused related to the main design the prosecution can proceed to establish the conspiracy itself. Vide R vs. Miller 1939 AD 106, Queen vs. Parnell 154 ER 1132. Even though the counsel appearing for the 1st accused-appellant endeavored to make a good samaritan out of the 1st accused-appellant for the reason that almost all the parents whose children were abducted hurried to him for help the evidence elicited in the case pertaining to his conduct, the utterances he made and his acts clearly establish that he was the main conspirator around whom the rest revolved. Vide R vs. Meyrick 21 Cr App. Report 94 at 102.
The prosecution has placed cogent evidence to establish the fact that the 1st accused-appellant had a motive to get red of certain students ear marked by him. Even though before he came to Embilipitiya Madya Maha Vidyalaya as its Principal he supported the students cause agitating against a portion of the school playground being acquired to put up a filling station the students unrest continued even after his coming there as its Principal. [The] situation was aggravated by certain incidents relating to a love affair the 1st accused-appellant's son is supposed to have had with Pavitra Ranmali, a girl studying Grade 11 A. In this regard Sujatha Kalugampitiya mother of abductee Rasika testified that the 1st accused-appellant had requested her to get from her son Rasika who was supposed to be having in his possession a love letter. As a result of this love affair there had been a division among the students of Grade 11 A. Sujatha Kalugampitiya further spoke of an incident where the students had hooted and jeered at the 1st accused-appellant when he was passing the Grade 11 Classes after a meeting with the parents. The Prosecution story is that in order to put an end to the student unrest the 1st accused-appellant got round the army personnel at Sevana camp. We find evidence of motive adduced against the 1st accused-appellant is cogent, convincing. It has been held that such evidence of motive strengthens and advances the prosecution case, Vide Kenuman, J in King vs. Appuhamy 45 NLR 128 at 132; King vs. Haramanis 48 NLR 529 at 534.
The prosecution has elicited from the prosecution witnesses that the 1st accused-appellant had developed a close relationship with the army personnel stationed at the Sevana camp. The witnesses spoke of the presence of army officers inside the Principal's office, the school garden and his residence. Sujatha Kalgampitiya spoke of certain utterances made by the 1st accused-appellant to her on a number of occasions. One such utterance was "if the students demonstrate the army would take them away". On one occasion he made the following utterance: "I have discussed a plan with Mahesh Danasuriya and Kodikara, 7 or 8 fellows will be abducted on the same day". When she queried from him what he meant, he said "What do you know madam? We are not going to do it. That may be done by the army in the night". Even though the 1st accused-appellant requested her to give a list of names of trouble makers, she told Court she never obliged. The evidence of this witness brought to light in no uncertain terms the desire of the 1st accused-appellant to get rid of certain students he had ear marked with the assistance of the army personnel stationed at the Sevana camp.
Rosalin Wickremasinghe, the mother of the abductee Mahindapala spoke of an utterance made by the 1st accused-appellant when she went to seek his assistance to rescue her son abducted on 4.1.90 around 10.30 p.m. When she complained about the abduction the 1st accused-appellant made a telephone call in her presence. She recounted the telephone conversation as follows: "Hello Mr. Senaratne, did you go anywhere last night? Did you find the stuff? Did you take the stuff to the beef stall? Did you bring Mahindapala? I will come to the camp in the evening".
Thusani Apsara Jayasena who was studying in Grade 11A in 1989 a Prefect, in her evidence before the trial Court regarding the abduction of her brother Chamara Sudarshana Jayasena on 11.11.89 spoke of the presence of two armed army men at the Principal's office. In fact she had seen the 5th accused-appellant Senaratne on a number of occasions present in the Principal's office. There are some of the evidence that was elicited from the prosecution witnesses at the trial which got to show not only the existence of a very close relationship between the 1st accused-appellant and the army personnel of Sevena camp, but that he conspired with the men in uniform to engage in an illegal exercise of abducting the students. The evidence relating to the manner in which they carried out the illegal exercise of abducting these students clearly establishes that they had intention and thereby they become partners in the crime. The detached acts of the different conspirators relative to the main design are admissible as steps to establish the conspiracy itself. Vide R vs. Miller (1939) AD106.
The prosecution also has led cogent evidence to establish the conspiracy to abduct students through witnesses who had deposed to certain acts done by the accused-appellants to show that they acted together with a common purpose.
In this regard an important item of evidence which was placed before the trial Court by the prosecution was the evidence of Upul Janaka Perera. He has been abducted by the 5th accused-appellant on the pretext of getting him to show the house of one of his friends. He was taken blind folded and naked. He was taken to the Sevana camp and there they ordered him to remove the sarong with which he was blind folded... [At] that point of time he knew he had been taken to the Sevana camp. He saw 15 to 17 persons tied up to a chain. Thereafter he was taken to a hall. He found the 1st accused-appellant comfortably seated on a sofa. The 4th and 5th accused-appellants too were present. At that point of time the 1st accused-appellant introduced the witness to the 4th accused-appellant and wanted him to release him. Then Manelka too was brought in there and he too was released. Thereafter the witness and Manelka were put into a white coloured van. The 1st accused-appellant also got into the van and it was driven by the 5th accused-appellant. Later on they were dropped at their residences. This is a vital item of evidence which came up before the High Court unimpugned and unchallenged which would go to establish the conspiracy.
In the course of his submissions the learned Deputy Solicitor-General invited our attention to the manner in which the 1st accused had conducted himself in the school. Sujatha Kalugampitiya, Principal Moraketiya Maha Vidyalaya Categorically stated to Court that on one occasion she saw a pistol covered with a handkerchief and an object which she thought to be a hand grenade placed on the 1st accused table in his office. Further she testified that on one occasion when students hooted at him she saw the 1st accused-appellant going out carrying that object with him. Thilaka Piyaseeli Wijekone, mother of Nalin Kumara Gunarathe has testified that she had seen a pistol wrapped in a brown paper and an object which she thought to be a hand bomb with the 1st accused-appellant. Apsara Jayasena in her evidence testified that she had seen the 1st accused-appellant carrying a pistol. Such evidence also came from a teacher, Maddumage Yasapala. It is interesting to note that the 1st accused-appellant's explanation was that the prosecution witnesses would have mistaken about a wood apple he was carrying. The learned Deputy Solicitor-General's contention was that the 1st accused-appellant had the privilege of moving about carrying such weapons because he had the blessings of the school premises.
Apparently during this time students unrest had been a common occurrence in most of he schools in Embilipitiya. It appears that even at Moraketiya Maha Vidyalaya where Sujatha Kalugampitiya was the Principal occurrence of students unrest had been there. Evidence shows that student unrest had commenced prior to the large scale abductions of students from their parents As we have already referred to this in our judgment, Sujatha Kalugampitiya testified that on one occasion immediatley prior to these abductions the 1st accused-appellant had divulged a plan he had in mind to Sujatha Kalugampitiya. His utterance was to the following effect. "I have discussed about a good plan with Mahesh Danasuriya and Kodikara. 7 or 8 fellows will be abducted on the same day". The word used was (SINHALA TEXT). Perturbed by this utterance Sujatha Kalugampitiya had queried from the 1st accused-appellant what he meant. Then he uttered the following: "What do you know madam? We are not going to do it that will be done by the army in the night. You have only to give a list". When the 1st accused-appellant came as the Principal of Embillipitiya Madya Maha Vidyalaya which happened to be a respected and powerful position his main concern ws to consolidate his position by suppressing the student unrest. In that process he had even threatened the students indirectly with death. Apsara Jayasena, Prefect at the time when these abductions took place spoke of an incident where the 1st accused-appellant had threatened the students of Grade 11 in the following way: (SINHALA TEXT) Apsara Jayasena described what was meant by this phrase (SINHALA TEXT) vide page 531 Vo1.11. She said (SINHALA TEXT). The learned Deputy Solicitor-General contended that it is an external manifestation of the intention of the 1st accused-appellant. In her evidence Apsara Jayasena said that the 1st accused-appellant addressed Chamara jayasena as "Tunkama Chandiya". Rasika Wijetunga as "Moraketiya Weeraya" Ruwan Rathaweera as "Kunfu Karaya".
It is pertinent now to refer to Section 10 of the evidence Ordinance which reads as follows:
"When there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done, or written by any one such persons in reference to their common Intention, after the time when such intention was first entertained by anyone of them is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving he existence of the conspiracy as for proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it ".
For the application of Section 10 what is required is specified in the following phrase. "where there is reasonable ground to believe". We have carefully considered the above utterances made by the 1st accused-appellant which indicates the 1st accused-appellant's complicity with the army in executing these abductions which in fact took place soon afterwards. We have already referred to the manner in which these students were abducted by the army personnel attached to Sevena Camp secretively, concealing their identity, using force which clearly manifests that they were knowingly executing an illegal exercise.
The 1st accused-appellant had totally denied such utterances made to Kalugampitiya but the learned trial Judge who had the benefit of seeing the demeanour and deportment of the 1st accused-appellant as well as witness Sujatha Kalugampitiya, accepted Sujatha Kalugampitiya's evidence that the 1st accused-appellant made such utterances and rejected the bold denial by the 1st accused-appellant. The learned trial Judge was satisfied with the testimonial trustworthiness of witness Apsara Jayasena.
The learned Deputy Solicitor-General when addressing us on the evidence relating to conspiracy submitted that this Court should consider the evidence relating to the 1st accused-appellant's conduct as well when some of the students were abducted and it was brought to his notice. He referred to the case of Manelka de Silva. Manelka de Silva was abducted on 1 December 1989 in broad day light wile he was playing cricket. Shortly afterwards Manelka's brother Dilan Niroshan de Silva who had witnessed the abduction and recognized the abductors had gone to the Principal's house (1st accused-appellant) along with his mother and father and had informed him of the abduction. According to Dilan Niroshan de Silva when this complaint was made, school teacher Jayatissa too was there. Jayatissa for some reason was a reluctant witness who kept silent on this identity of the abductors except the fact that he saw two persons going away with Manelka de Silva. In fact the army camp according to the evidence in the case was just 200 yards away from the school premises and there is ample evidence to show at that point of time army officers were seen frequenting the school premises, the Principal's quarters as well. One of the witnesses Amarapala in giving evidence before the learned trial Judge has stated that on one occasion he heard the army officers addressing the 1st accused-appellant as "uncle". On this occasion the 1st accused-appellant did not take any steps either to go to the camp to ascertain what happened to Manelka or any other meaningful step. Manelka was a student of his school. It is significant to note that there is no evidence whatsoever to indicate that when all these abductions of students from Embilipitiya Madya Maha Vidyalaya were taking place the Principal brought this to the notice of his Superiors in the Education Department or the Minister of Education, the Prime Minister or the President. This is something unbelievable.
According to Tilaka Piyaseeli Wijekoon when she met the 1st accused-appellant to bring to his notice the abduction of her son Nalin Kumara Gunaratne the 1st accused-appellant made an utterance to the following effect: "Children may be burnt on the roads dead bodies may float in the rivers. Nalin will not fall into those categories. Don't be scared of Nalin". Hence the inference one could draw from this utterance is that the 1st accused-appellant apparently had even foreseen what would happen to the abductees.
The 1st accused-appellant 's guilty behaviour comes to light by the evidence of Soma Munasinghe an independent witness who was in charge of the Grade 11 A class at the time these abductions had taken place. According to her document marked P1 was a temporary register prepared by her on the basis of the previous year's register marked P2. Her evidence was that in P1 the temporary register she has prepared for that year she had the names of the following students in the following order: No.10 in the register marked P1 was the name Rukman Paranavitana
No.5 was Ruwan Ratnaweera.
No.20 was Rasika Kumara Wijetunga.
No.15 was Chamara Jayasena.
No. 12 was Manelka de Silva.
Soma Munasinghe's evidence was a vital item of evidence for the prosecution. By then these students had been abducted. The 1st accused had directed Soma Munasinghe before two months of continuous absence from school was over to delete their names when preparing the new register. This teacher an independent witness categorically stated that in order to delete the name of a student from the school register at least a period of two months of continuous absence has to be there. This vital item of evidence clearly shows that the 1st accused-appellant was very much aware that the abducted students [would] never come back to school. In fact they never returned and went missing forever.
In this regard an item of corroborative evidence comes from witness Sirinawathie, mother of Ruwan Ratnaweera, that when she complained to the 1st accused-appellant about her son's abduction he had told her that there are five boisterous students in the Grade II Class and that he would eradicate the cancer.
Evidence of utterances made by the 1st accused-appellant, the 2nd accused-appellant, 5th accused-appellant had been placed before the trial Court by the prosecution to establish the complicity the 1st accused-appellant had with the army personnel to carry out the plan the 1st accused-appellant had in his mind. These utterances were admissible evidence in terms of Section 10 of the Evidence Ordinance. In our view these statements thus become part of the res gestae.
We have already referred to the statements made by the 1st accused-appellant to Sujatha Kalugampitiya about a plan he had discussed with Kodikara and Mahesh Danasuriya. According to Sujatha Kalugampitiya she had seen the 2nd accused-appellant on a number of occasions after her son was abducted to get her son released. On one occasion the 2nd accused-appellant had said "Rasika was a naughty boy. We will make him a good bay and send him back in five years time". There after her evidence was when she met him again at Mount Lavinia Army Camp he had told her not to look for her son anymore because he [was] not amongst the living.
Leelawathie testified before Court in giving evidence relating to the abduction of Susil Kumara, that she met the 2nd accused-appellant at the Camp regarding the abduction of her son Susil Kumara. Then the 2nd accused-appellant had made an utterance to the following effect that the Principal (1st accused-appellant) had given him a list and he [would] take into custody all the students referred to in that list. In fact we have already referred to similar utterances made by the 1st accused-appellant to Sujatha Kalugampitiya. There is also evidence of Rosalin Wickremasinghe, that when she went to see the 1st accused-appellant about the abduction of her son along with Kamala Kottegoda, whose son Wasantha Ariyadarshana too had been abducted, the 1st accused-appellant was alleged to have made the following telephone call: "Hello Mr. Senaratne did you go anywhere last night? Did you find the stuff? Did you bring Mahindapala. I will come to the Camp in the evening". Thereafter the 1st accused-appellant assured her that her son will be released after two or three days time. Very correctly the learned trial Judge has come to the inference that when the 1st accused-appellant addressed one Mr. Senaratne in his telephone call he was speaking to the 5th accused-appellant whose name is Y. A. Senaratne.
Subsequently the 1st accused-appellant had told Rosalin Wickremasinghe that he went to the Camp and that Mahindapala was brought before him and an army officer said "Your teacher has come. Tell him what you have done". The 1st accused-appellant told Rosalin that her son was involved in the murders, attacked the Army Camp and had collected identity cards.
Leelawathie, mother of abuctee Rukman Paranavitana, saw the 1st accused-appellant regarding the abduction of her son. The 1st accused-appellant to be given to the 3rd accused at the trial (acquitted by the learned trial Judge) and meet the 2nd accused-appellant along with the letter given by the 1st accused-appellant she found the 1st accused-appellant in the company of the 2nd accused-appellant.
Apart from that we have already referred to the evidence of Niroshan de Silva regarding the abduction of his brother Manelka de Silva and also Upul Janaka Perera, a person who was abducted and released later relating to the involvement of the 4th accused-appellant and the 5th accused-appellant in the abduction of Manelka de Silva. When these items of evidence are taken together the cumulative effect of these circumstances proved by the prosecution would be that an irresistible conclusion could be arrived at that these accused-appellants were the perpetrators of the conspiracy to execute the abductions of the students referred to in the charges levelled against them.
Question would arise whether the accused-appellant were falsely implicated in the charges levelled against them by the prosecution witnesses. In fact the counsel for the accused-appellants made submissions to that effect.
In the case of Palitha Alfred his mother Ran Menika had seen three persons entering her house. But she identified only the 5th accused-appellant out of the nine accused who were in the dock because her position was that she knew him before. In the case of the abduction of Prabath Kumara it was from Garusinghe Arachchilage Sirisena's house in his presence that Prabath Kumara was taken by the abductors. But at the trial she did not identify any of the abductors.
In the case of the abduction of Palitha Lakshman Ransasinghe his mother Dayawathie Ranasinghe testified that when her son was abducted on 7.12.89 a number of persons entered her house but she identified only the 5th accused-appellant as one of the abductors. She also spoke of an incident on 20.12.89 when they heard the voice of her abducted son, apparently the son was not shown to them as they were made to lie on the floor, face downwards. On that occasion of the persons who came she identified not only the 5th accused-appellant but also the 3rd accused-appellant as one of the abductors who came on 17.12.89 to abduct her son she could well have done so. Rasika Wijetunga's mother Sujatha Kalugampitiya when pointing out the abductors who took away her son on 06.11.89 identified only the 3rd accused-appellant as one of the abductors. On the following day when she went to the Army Camp she met the 2nd accused-appellant who had in fact given her the assurance that her son would be handed back to her. Had she wanted to falsely implicate him as one of the abductors, she could have done so.
There are instances even though charges of abduction had been preferred against the accused there was no evidence before Court relating to the identity of the abductors. Therefore our conclusion on this matter is there is no evidence before trial Court for the learned trial Judge to come to a conclusion that the accused-appellants were falsely implicated and that there was some hidden hand behind it.
One of the main objections taken by all counsel who appeared for the accused-appellants was that the evidence of identification adduced before the learned trial Judge was evidence of dock identification and that the trial Judge should not have relied upon such evidence of identification, in view of the dangers involved in such means of identification specially because such evidence can "bring about miscarriage of justice" vide Regina vs. Turnbull 1977 QB 224 at 228 and therefore worthless. Vide Gunaratne Banda vs. The Republic unreported SC 132-136/76 H.C. Kegalle 79/75, SC Minutes of 2 March 1978.
If the witness did not know the accused earlier and in the absence of an identification parade the identification in Court becomes a "first time" identification in Court or a dock identification. Vide E.R.S.R. Coomawaswamy's "The Law of Evidence" Vol.1 page 256.
Most of the witnesses whose evidence was led relating to the abductions complained of to the trial Court about the lackadaisical attitude of the Embilipitiya Police. This can be understood because it is apparent from their very conduct as deposed to by witnesses that the police did not want to investigate into these complaints of abductions against the officers of the army detachment stationed at Sevana Army Camp and the government of the day too was under pressure because of the Southern insurrection.
In some cases the local Police refused to take down the complaints. In some cases even if they took down the complaints they have distorted the complainant's version or omitted to record the vital matters. In fact Sujatha Kalugampitiya, Principal of Moraketiya Maha Vidyalaya complained of how the Embilipitiya Police refused to record the complaint in regard to the abduction of her son Rasika Wijetunga. Upul Janaka Perera testified that consequent upon a radio announcement inviting parents whose children had been abducted to make a complaint to the Police, he went to the Embilipitiya Police to make a complaint about the abduction of his brother. He was turned away by the Police telling him that if the abductee was inside the Army Camp there was no need to make a complaint. The same complaint comes from the mouths of almost all the witnesses who testified to the abduction of their children which is a special feature in the case which the learned trial Judge should necessarily take into consideration in terms of Section 3 of the Evidence Ordinance. Vide the observations made by H.N.G. Fernando, C. J. in L. Edrick de Silva vs. Chandradasa 70 NLR page 169 at 174.
It is observed that the learned trial Judge while considering the contradictions and omissions bas referred to the "no action" attitude of the local police and the partisan approach of some of the CID officers as deposed to by the prosecution witnesses, reluctance of some of the parents to implicate the army officers through fear. In course of protracted cross-examination of Sujatha Kalugampitiya, she was asked why she did not mention to the police about the request made by the 1st accused-appellant to give a list of the names of trouble makers among the students and the fact that the 1st accused-appellant was seen with a pistol and a bomb at his office. She described to the trial Court the prevailing situation in Embilipitiya at that time. The local police did not even record the complaint of her son's abduction. We have already referred to the evidence of Upul Janaka Perera in this regard.
The learned trial Judge has accepted the explanations given for omissions by witnesses and also the delay in making complaints. In the attendant circumstances of this case the test of Spontaneity and Contemporaneity cannot be applied. Hence, quite rightly it appears that the learned trial Judge has applied the test of Probability and Improbability in the evaluation of the evidence in the case. In the attendant circumstances of the case, we hold the view that it was the correct test. In The Queen vs. Pauline de Croos, Justice T. S. Fernando observed that delayed evidence can be acted upon if there was reason to explain the delay.
It is to be observed that at the relevant period when these abductions were taking place law enforcement in Embilipitiya was at stand still because of the prevailing situation. As we have already referred to above Upul Janaka Perera in his evidence disclosed that when he went to the Embilipitya police in response to a radio announcement inviting the parents to make complaints to the local police if their children had been abducted the police turned him away saying that since the abductee is in the Sevena Camp it is not necessary to make a complaint. Weeragedara Sumanawathie, the mother of Peduru Hewa Nihal came out with a similar story. In these circumstances we are of the view that the appellants are not entitled to complain that no identification parades were held. The principle being "Nemo allegans suam turpitudinem non audiendus est". No one ought to be heard when he asserts his own turpitude.
The learned senior counsel who appeared for the aggrieved parties submitted that the evidence relating to the identification of an accused person would fall into one of the following categories: firstly, where a witness has the prior knowledge of the accused as well as his name. Secondly, where the witness has the prior knowledge of the accused but not his name. Thirdly, where the witness sees the accused within a reasonable time after the incident but before the trial. Finally, where the witness do not have the prior knowledge of the accused and sees him for the first time at the dock after seeing him at the crime scene. This identification is commonly referred to as "dock identification". The learned senior counsel submitted that according to the evidence led in the case the identification evidence would fall into one of the first three categories. He cited the case of Niroshan de Silva's evidence relating to the identification of the 4th accused-appellant and the 5th accused-appellant. He had seen the two accused-appellants and had come to know their names prior to seeing him at the crime scene, namely the abduction of his brother Manelka de Silva.
It must be observed that the law relating to identification as it stands today does not shut out evidence of dock identification. Albeit, decided cases emphasize the need for caution before convicting an accused on the basis of such identification. The learned trial Judge must examine closely the circumstances under which the identification by the witness came to be made. For example, for how long did witness have the accused under observation, at what distance, in what light, was the observation impeded in any way, had he any special reason for remembering the accused. All these matters would go to the quality of identification. Vide the judgment of Lord Widgery, C. J. in Rex vs Turnbull 1977 1 QB 224. In examining the evidence relating to the means of knowledge the witnesses had of the abductors at the time of abduction we are well possessed of the guidelines laid down in Turnbull.
At this juncture it is pertinent to look into the merits of another ground adverted to by the learned counsel appearing for the 1st, 3rd, 5th, 6th, and 7th accused-appellants. The ground he urged is that all the abduction charges were preferred on the basis of common intention under Section 32 of the Penal Code. He submitted that there is no indication in the judgment that the learned trial Judge was even alive to the principles relating to common intention. His contention is that the Appellate Court cannot look into the evidence sitting in appeal in order to ascertain whether there is evidence of common intention. It must be noted. That the judgments cited in support by the learned counsel were relating to jury trials. Albeit, even in appeals from the jury verdict the Appellate Judges have themselves carefully considered the evidence led at the trial and given their minds to the issue whether had the jury being properly directed would have brought the same verdict. In King vs. Appuhamy 46 NLR 57 which was a case where the trial Judge has not emphasized to the jury that under Section 32 of the Penal Code to support a charge of murder the common intention must itself be a "murderous intention" within the meaning of Section 294. In his judgment Kenueman, SPJ arrived at the following conclusion:
"We have carefully considered the evidence and come to the conclusion that, had the jury been correctly instructed, they would at least have found in this case that all these accused were actuated by a common intention, to cause grievous hurt".
We do not think there is any constraint in the Appellate Courts perusing, examining and considering the evidence in a case tried by a High Court Judge without a jury. In this regard the learned Deputy Solicitor-General referred in a us to the provisions of Section 334 which deals with determination of appeals in cases where trial was by jury and Section 335 which deals with determination of appeals in cases where the trial was without jury. Our function is to examine the evidence in the case in order to satisfy ourselves with assistance of counsel that there is evidence upon which the trial Judge should have reached a verdict which he came to and there has not been any misdirection or non direction. In this case as is evident from our judgement we have very carefully sorted out all the evidence relating to the abduction charges preferred against each of the accused-appellants in order to see whether the prosecution has established circumstantially inculpatory facts against the accused-appellants which are incompatible with the innocence of the accused-appellants and incapable of an explanation or any other reasonable hypothesis than of their guilt.
With regard to the submission that the learned trial Judge should have set forth the principles of common intention, circumstantial evidence etc., the learned Deputy Solicitor-General referred us to the provisions relating to jury trials set out in the Code of Criminal Procedure Act. In a jury case an accused is tried by his own Peers. The jurors are ordinary laymen. In order to perform their duties specified in Section 232 of the said Act, at the commencement of the trial the learned trial Judge has to inform them of their duties. At that stage he may also direct them briefly on presumption of innocence, the burden of proof and other principles of law as may be relevant to the case. Vide Section 217 of the Act. In the mandatory provisions of Section 229 of the Act when the case for the prosecution and defense are concluded the learned trial Judge should charge the jury, sum up the evidence and lay down the law by which the jury are to be guided. Hence in appeal the Judges will look into the charge to the jury to see whether these provisions of law have been compiled with and whether jurors were properly directed by the trial Judge.
In a trial by a Judge of the High Court without a jury it is significant that there are no such provisions similar to Section 217 of the Act, for example to set forth the basic principles of criminal law, i.e. the presumption of innocence, the burden of proof etc.
We do not see any requirement similar to section 229 that he should lay down the law which he is to be guided. The reason being that the law takes for granted that a judge with a trained legal mind is well possessed of the principles of law, he would apply. In appeal the Appellate judges will consider whether in fact the learned trial judge was alive and mindful of the relevant principles of law and has applied them in arriving at his conclusion. We have very carefully perused and considered the trial judge's judgment pertaining to the above aspect and come to the conclusion that there is hardly any merit in the submission advanced by the learned counsel. Of the accused-appellants the 3rd accused-appellant, 4th accused-appellant in their dock statements have taken up a defence of alibi, for the period specified in the indictment within which the abductions had taken place. The abduction of students in respect of whom verdict of guilty was entered at the following dates: Palitha Alfred and Sanath Priyantha were abducted on 3 August 1989, Senath Chaminda Wijekone was abducted on 16 October 1989, Jagath Chaminda Kumar Dissnayake was abducted on 19 October 1989: Rasika Kumara Wijetunga was abducted on 6 November 1989, Chamara Jayasena and N.A Jayatilaka were abducted on 11 November 1989, Susil Kumara was abducted on 16 November 1989, Damikka Kumara Baragamaaratchi, Prabath Kumara and Pradeep Kumara Wijesinghe were abducted on 20 November 1989, Rukman Paranavitana and manelka de Silva were abducted on 1 December 1989, Palitha Lakshman Ranasinghe Guruge on 17 December 1989, Nalin Kumara Gunaratne was abducted on 26 December 1989, Mahindapala Wickremasinghe was abducted on 4 January 1990.
Evidence in support of an alibi means evidence tending to show by reason of the presence of the defendant at a particular place or in a particular area at a particular time, he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of the alleged commission. Vide R vs. Hassan (1970) 1 QB 423.
A plea of alibi is provided for in terms of Section 11 of the Evidence Ordinance which makes any fact which is inconsistent with a fact in issue or a relevant fact also relevant. What is meant by the term "inconsistency" in the physical impossibility of coexistence of two facts. Vide Illustration A to Section 11of the Evidence Ordinance.
The alibi taken up by the 3rd accused–appellant covers a period from 30.10.89 to 8.12. 90. His position was that he was at the Diyatalawa camp during that period following a Junior Officers course. In support of his alibi the following documents were produced marked 5V4, 5V6, 5V11, 5V7, 5V9,and 5V9 (a).
The alibi taken up by the 4th accused – appellant covers a period from 28.11.89 to 4.1.90. His position was that he was at the Panagoda camp during that period. The alibi taken up by the 5th accused – appellant covers two periods: firstly, 1.10.89 to 20.10 .89 during which time he was following a course at Panagoda. After that 30.10.89 to 14.11.89 he followed a repeat course at Panagada camp. In support of his alibi produced the document marked 7V 33(2), 7V 38, 7V 34(2), 7V 35, 7V 32(6), 7V 32(7), 7V 32(8), 7V 32 (9), 7V 33(3), 7V 34 (3), 7V 40, 7V 39, 7V 41(2)(a), 7V 32 (a) the 6th accused-appellant's alibi covers a period from 01.08.89 to 14.08.89. His position was he was at the Panagoda camp during that time. Further he has taken up the position that from 3rd October to 13th October he was on leave for his mother's funeral.
The learned deputy solicitor-General submitted that there was no allegation of abduction against the 6th accused-appellant except in one case for the latter period he had taken leave for his mother's funeral. That was the case of Dayananda Ekanayake's abduction. The learned trial judge disbelieved the witness and acquitted the accused of that charge. The fact that there were no allegations of abduction during this period against the 6th accused-appellant would speak to the bona fides of the prosecution version of the abductions. He was following a repeating course from 30.10.89 to 14 11.89. The register relating to leave had been elicited from Lt. Tennakoon produced marked 7V 34(3) and 7V 41, 7V 41(1).
In respect of an alibi what is expected of the defence is merely to create a doubt in the mind of the Judge. If the alibi is accepted or even if it is not accepted yet there is a doubt created in the Judge's mind the prosecution should fail.
The learned Deputy Solicitor-General submitted that in this case what the accused-appellant had put forward was a general alibi and there was no positive evidence before the learned trial Judge to the effect that the accused-appellants were elsewhere at the time the offence was committed so as to exclude his presence at the place of the offence or the crime scene. Vide Wills, "Circumstantial Evidence" 7th Edition page 289.
The documentary evidence led on behalf of the accused-appellants relates to movement orders which show only movement from one place to another. It would merely show that he would have been there at the place mentioned in the movement order. It should be borne in mind that the defence of an alibi should be established by unsuspected testimony. The learned counsel for the state submitted to court that there is no such testimony of an alibi in respect of each of the accused placed before the trial Judge.
The learned deputy solicitor-general referring to the cross-examination of each prosecution witness relating to each count by the defence counsel submitted that none of them have been cross-examined on the basis of alibi. Credibility of an alibi is greatly enhanced if it be set up at the time when the accusation is first made and is consistently maintained thereafter and if such a defence is taken up belatedly the weight of the defence is weakened.
The learned Deputy Solicitor-General brought to the notice of court that in the Habeas Corpus applications filed against some of these accused-appellants alibi defence was not taken up. Anyway, he submitted that since similar format had been used in the affidavit of the respondents to the Habeas Corpus applications, he is reluctant to take up that infirmity. Anyway on record fact remains that at the first opportunity the accused-appellants have not taken up such defence to exculpate themselves from liability. Even in the dock statements no explanation have been given by the accused-appellants why that alibi defence was not taken up in the Habeas Corpus application.
Apart from the documents relating to movement orders there is no supporting evidence to make out a case of alibi defence. In the case of the 3rd accused-appellant evidence if Major Manoj Perera was called on his behalf. In the course of his evidence he took up the position that he did not have an independent recollection whether this accused-appellant was physically present attending the course. Witness was a course commander. At one stage he told court that he was in charge of a parallel course where the accused was not a participant. Whereas, later on he shifted his original position and took up the position that midway he came to be in charge of the course which this accused-appellant was supposed to be following. This shifting of positions taken up by this witness was observed by the learned trial Judge when considering the witness's demeanour and deportment at the time of giving evidence. Hence the learned trial Judge has disbelieved his evidence.
On a perusal of the judgment we find that the learned trial Judge has considered the defence evidence of alibi and weighed it in the balance with the prosecution evidence and has rejected it. In these circumstances, we do not see any reason to interfere with that conclusion the learned trial Judge arrived at in rejecting the alibi defence taken up by the above mentioned accused-appellants at the closure of the prosecution case, in their dock statements.
The 1st accused-appellant has given evidence on oath. His testimony in effect was a denial of liability to the two conspiracy counts preferred against him. In his evidence he was attempted to distance himself from the army with whom, according to the prosecution witness he had conspired to abduct their children. The 1st accused-appellant offered two reasons as to why he was implicated in the conspiracy. Firstly, his refusal to accede to the request of Sujatha Kaligampitiya to carry out a protest campaign against the abduction of Rasika Kumara and secondly, his refusal to accede to the request made by the parents of the missing children to be the Chairman of their Association. These positions were not put to the prosecution witness in cross-examination. The learned trial Judge who had the advantage of observing the demeanour and the deportment of the witness did not accept him as a credible witness. We in our judgment have upheld the convictions against him where we were of the view that the prosecution has proved its case beyond reasonable doubt and we have set aside the convictions and acquitted him where the convictions were not supported by evidence.
The 2nd accused-appellant made a dock a statement when called upon for his defence. According to him he was one of the staff officers assigned to the Co-ordinating officer. He was stationed at the Mahaweli Circuit. His work involved the office administration and assisting the Co-ordinating officer in carrying out the essential services in the area. He did not have any powers to arrest persons. In his dock statement he spoke of the JVP activities prevalent on Embilipitiya during that time. His statement in effect was a bold denial of liability whereas, the prosecution has established incriminating circumstances against him which called for an explanation from him.
A submission was adverted to by the learned President's Counsel who appeared for the 4th accused-appellant that in most of the abductions the prosecution has relied upon the evidence of a sole eye witness to the incident without any corroborative evidence, even though there had been others present who were alleged to have witness the incident.
There is no such requirement in law evidence. The provisions of section 134 of the Evidence Ordinance postulates that evidence should be evaluated and weighed and not counted. That section sets out that no particular number of witnesses are required for proof of any fact. This principle has been applied by the Indian Supreme Court where the conviction rested solely on the evidence of a solitary witness who gave circumstantial evidence in regard to the accused's liability. Vide Mulluwa vs. State of Madhya Pradesh AIR 1976 SC 198. The Privy Council upheld the conviction. This principle has been adopted with approval and applied in the judgement of Justice G.P.A. de Silva in Walimunige John vs. State 76 NLP at 495. The principle applied is that testimony must be weighed and not counted. If the trial Judge was satisfied with the testimonial trustworthiness of a witness even though he is the sole witness relied upon by the prosecution to establish the incident the learned trial Judge could act upon such evidence.
We have already dealt with the evidence of Soma Munasinghe Grade 11 a class teacher at the relevant time in dealing with conspiracy charges. She has testified that the 1st accused-appellant who was the Principal had instructed her delete five names contained in the temporary register marked P1 prepared by her, when preparing a permanent register sometime later. Those five name were
1. Rasika Kumara Wijetunga
2. Manelka De Silva
3. Rukman Paranavitena
4. Ruwan Ratnaweera
5. Chamara Jayasena
In dealing with these abductions we are very much conscious of the plan the 1st accused-appellant had to get rid of the trouble makers among the students as deposed to by Sujatha Kalugampitiya, his intention of getting rid of five "boisterous students" in 11A class who were a cancer as deposed to by witness Sirinawathie de Silva and death threats he had made to the students of Grade 11A as deposed to by Apsara Jayasena. We are also possessed of the utterance made to Don Leelawathie mother of abductees Susil Kumara and Susantha Kumara by the 2nd accused-appellant and that he would abduct all the students who are in the list.
Rasika Kumara Wijetunge had been abducted on 6.11.89. In the course of his mother, Sujatha Kalugampitiya's evidence she spoke of the following matters:
1. The presence of army personnel in the principal's office, school premises and his residence carrying weapons.
2. The student unrest in schools, especially at Embilipitiya Madya Vidyalaya.
3. That on one occasion while the principal was passing the Grade 11 A class after a meeting with the parents he was hooted and jeered at by the students.
4. Her seeing a pistol covered with a white handkerchief and an object which she thought to be a hand grenade on the principal's table. Apparently Upsara Jayasena and a teacher Jayatissa had also spoken of seeing weapons with the 1st accused –appellant.
5. Disclosure by the 1st accused- appellant to Sujatha Kalugampitiya about a plan he had in mind to get rid of the trouble makers with the assistance of the army secretively.
6. The 1st accused –appellant was under the impression that Rasika Wijetungs was one of the students responsible for creating a rival group against the love affair the 1st accused–appellant's son (2nd accused at the trial) supposed to have had with Pavitra Ranmali, a girl studying in Grade 11A.
In addition to the above facts this witness being a Principal herself had placed a vivid picture of how her son Rasika Wijetunge was abducted on 6.11.89. She identified the 3rd accused-appellant as he entered the house for and when he held her son she gazed at his face for quite sometime. It was at a short distance she saw him when she pleaded with him not to take the son away. The 3rd accused–appellant had told her that he would return Rasika in half an hours time. Though she switched off the lights at the behest of the abductors the lamp hung at the Buddha statue, and her deceased husband's picture still kept on burning. The above matters have to be taken into account in deciding the quality of identification.
In this case this witness is not an ordinary woman. She was the Principal of a school at the time. Her evidence is that she had seen the 3rd accused–appellant at the camp few days after the incident as well. Therefore Sujatha Kalugampitiya's means of knowledge of the 3rd accused –appellant has been established by the prosecution at the trial. The learned counsel who appeared for the 1st, 3rd, 5th and 6th accused–appellants relying upon the Test of Spontaneity and Contemporaneity contended that the statement made by this witness to the CID was made after a lapse of a period of nearly three years and as such the trial judges should not have relied upon her evidence. In fact the same contention was raised in respect of the other witnesses who spoke of the abduction of their children as well.
This aspect was considered by Justice Ninian Jayasuriya in Madawala Samrakoon Mudalige Ajit Devapriya Samarakoon vs. The Republic C.A. 8/97 H.C. Kurunegala 180/94 written on 14.9.1999 and pronounced on 5.10.1999 (unreported) where the same point was raised regarding the evidence of the sole eye witness to the killing of Mananlage Malini alias Nilanthi. In this case eye witness Chulasiri made the first statement to the police after a lapse of one and a half years from the date of the crime. The learned judge observed thus: "just because the statement of a witness is belated the Court is not entitled to reject such testimony". In applying the test of Spontaneity and Test of Contemporaneity and the Test of Promptness the Court ought to scrupulously proceed to examine the reasons for the delay. If the reasons for the delay adduced by the witness are justifiable and probable the trial judge is entitled to act on the evidence of witness who had made a "belated statement." In the instant case the learned trial Judge has take into consideration the reasons elicited from the prosecution witnesses as to the belatedness of their statements and also the background of events at the time. It is to be observed that no contradiction or omission has been marked in her statement to the CID on this point. The learned Judge has accepted her as a truthful witness. Therefore we do not see any reason to interfere with the finding of the guilt arrived at by the learned trial Judge against the 3rd accused-appellant.
Soon after the incident the witness Sujatha Kalugampitiya had met the 2nd accused-appellant who had assured her that her son Rasika Wijetunga was in the camp. According to her he had taken 50% responsibility for the safety of Rasila Wijetunga. He had promised Sujatha Kalugampitiya that he would give Rasika back to her in about 5 years time after making him a "good boy". She had kept faith and trust on this officer's assurance. She had seen him several tines after her son's abduction and she had not filed a Habeas Corpus application because she thought by doing so the lives of her other children too would be in danger. Finally, when she met the 2nd accused-appellant at Mount Lavinia Army Camp in January he had told her that Rasika Wijetunga was no more among the living and it was pointless looking for him.
The learned Presidents's Counsel for the 2nd accused-appellant contended that the alleged utterances by the 2nd accused-appellant had been made after Rasika Kumara Wijetunga was abducted. Therefore the learned trial Judge could not have acted upon that evidence. Through Sujatha Kalugamoitiya the prosecution has established tha the 2nd accused-appellant was well aware of the abduction of her son when she met the 2nd accused-appellant soon after the abduction. He had given the impression to Sujatha Kalugampitiya that he would give back her son after correcting him. It is on this assurance that Sujatha Kalugampitiya had seen the 2nd accused-appellant on a number of occasions, until he had intimated to her that her son was no longer among the loving. It must be borne in mind that there was overwhelming evidence against this accused-appellant in respect of a number of other abductions as well. In the circumstances we are unable to accept the submission made by the learned President's Counsel on behalf of the 2nd accused-appellant.
The learned trial Judge has rightly rejected the defence of alibi taken up by the 3rd accused-appellant and the dock statement made by the 2nd accused-appellant. He had disbelieved the denial by the 1st accused-appellant of having conspired with the army to get rid of the students.
In the circumstances we affirm the conviction of the 3rd accused-appellant for abduction of counts 5 and 30 and the conviction of the 1st accused-appellant and the 2nd accused-appellant for conspiracy under counts 2 and 4 and the sentences imposed on them.
Ruwan Ratnaweera who made a student of grade 11 A was abducted on 16 November 1989 around 11 p.m. The abductors bad come posing as police officers. Four persons had come into the house. According to Sirinawathie, mother of Ruwan Ratnaweera she switched off the lights when ordered to do so by the abductors. However, the lamp hung at the Buddha statue kept burning. This witness had given a vivid description of the physical harassment she and the rest of her family was made to undergo. She described in detail each and every act done by the 4th accused-appellant and the 2nd accused-appellant. She recounted the utterances made by the abductors which was to the following effect: "bitch give us the son that you bore". The ordeal she herself had to undergo, her husband, two sons, daughter and the son-in-law had to undergo until the intruders went away taking with them the son-in-law Sirisena Wickremaaratchi, had been elicited by the prosecuting counsel. They abducted Ruwan Ratnaweera who was at the time sleeping in the house of a friend, as deposed by Wickremaaratchi. The evidence of identification spoken to by this witness was not that of a "fleeting glance" referred to in Rex vs. Turnbull. She had sufficient time and opportunity to identify the persons who had made her and the members of her family to suffer such ordeal, namely, holding them and dragging them, assaulting them, putting them on the floor, throttling Sirinawathie's neck, trampling the son's neck, threatening to kill him if Sirinawathie did not reveal the whereabouts of Ruwan Ratnaweera.
Sirinawathie further testified that sometime after the abduction of her son she went to see Sujatha Kalugampitiya to her house. There she had seen the 2nd accused-appellant and told Sujatha Kalugampitiya that he was the person who took away her son. The learned President's Counsel who appeared for the accused-appellant contended that the prosecution should have clarified this position from Sujathat Kalugampitiya. Anyway in his dock statement the 2nd accused-appellant stated to Court that he had visited Kalugampitiya's house on a number of times. The learned trial Judge has believed this witness Sirinawathie. This item of evidence would strengthen the position taken up by Sirinawathie that she did identify the abductors at the time they came into her house.
No Habeas Corpus application has been filed relating to the abduction of Ruwan Ratnaweera. The learned Deputy Solicitor-General in this regard submitted to Court that at that point of time the grievance was against the authorities for holding their children illegally, while some parents were still under the belief that their children were still alive and would be release some day. Some of the parents were still in fear to institute any action against the army personnel. Hence considering the background of event we do not hold the failure of some parent to file Habeas Corpus applications should have any adverse effect on the creditworthiness of their evidence. The learned Judge has rightly rejected the defence of alibi and their dock statements. We do not see any reason to interfere with the findings of guilt arrived at against the 2nd and 4th accused-appellants by the learned trial Judge.
Sirinawathie de Silva recounted that her son prior to the abduction told her about an utterance made by the Principal to wit: "you will be taken by the army but I will save you. Don't tell your mother." In the totality of evidence led in relation to this abduction we affirm the convictions of the 2nd accused-appellant and the 4th accused-appellant on counts 7 and 32 and the convictions of the 1st accused-appellant, 2nd accused-appellant and the 4th accused-appellant on conspiracy charges and also the sentences imposed on them. We acquit the 3rd accused-appellant and the 4th accused-appellant on the conspiracy charges.
With regard to the abduction of Manleka de Silva on 01-12.89, convincing and cogent evidence has been elicited through his brother Niroshan de Silva, 13 years of age at the time. He has testified how his brother while playing cricket was taken away by the 4th accused-appellant and the 5th accused-appellant. They were no strangers to him for the reason that he had seen them coming to his house on a previous occasion and taking away his brother Manelka de Silva. Even prior to that this witness had seen the two accused-appellants playing cricket with the school children in the school playground. On the first occasion Niroshan de Silva got to know the names of the two persons from his father, that was on 6.11.89. The learned President's Counsel appearing for the 4th accused-appellant citing R Vs. Olivia 1965 2 AER 116 and Walmunige John vs. State 76 NLR 495 contended that the prosecution should have called Niroshan de Silva's father to corroborate Niroshan's testimony on this point. It is to be noted that in the latter case G.P.A. Silva, S.P.J. Wijaytilake, J and Pathirana, J agreeing confirmed the principle laid down in K.V. Chalo Singho 42 NLR 259 that the prosecution is not bound to call all the witnesses on the back of the indictment or tender them for cross-examination. We are of the view that the failure to call Niroshan de Silva's father as a witness do not in any way affect the veracity of Nishan de Silva's evidence on this point. The learned trial judge has been satisfied with the credit-worthiness of this witness. We reiterate here the principle enunciated in Mulluwa vs. State of Madhya Pradesh that testimony must be weighed and not counted. On 7.11.89 Niroshan had seen his brother being brought back in a van driven by the 5th accused-appellant. He was the 1st accused-appellant also in the van. Regarding this item of evidence there is corroborative evidence coming from an independent source Upul Janaka Perera who had seen the 1st accused-appellant and the 5th accused-appellant at the Sevana camp. Upul Janaka Perera also testified as to how he hand Manelka were released by the 4th accused-appellant at the behest of the 1st accused-appellant. Adducing evidence regarding the abduction of Manelka de Silva, Niroshan de Silva spoke of how Rukman Paranavitana went up to them and queried why they were taking away Manelka, and how the two accused-appellants warned him that the same fate would befall on him that very night. Evidence revealed that the 4th and 5th accused-appellants in fact carried out that threat given to Rukam Paranavitana.
The learned President's Counsel who appeared for the 4th accused-appellant submitted that the learned trial Judge should not have relied on this witness Niroshan de Silva for the reason that he did not make a complaint either to the local police or the CID. Having already lost one child it is quite natural that the parents through fear of losing this child as well did not want to expose him to any danger. But when Habeas Corpus application was filed against the 4th and 5th accused-appellants Niroshan de Silva had made a statement to the leaned Magistrate. We are aware of the evidence of retired Supreme Court Judge Mr. J.F.A. Soza, that even at the inquiry about the missing persons some witnesses were still reluctant and scared to give evidence against the army or police personnel. Defence of alibi taken by the two accused-appellants was rightly rejected by the learned trial judge.
The learned trial judge has accepted the testimonial trustworthiness and creditworthiness of this witness Niroshan de Silva and has acted upon his evidence in convicting the 4th and 5th accused-appellants for the abduction of Manelka de Silva on the counts 27 and 52. We see no reason to interfere with his finding. We affirm the conviction of the 1st accused-appellant, 4th accused-appellant and the 5th accused-appellant on the conspiracy charges as well. We proceed to acquit the 2nd accused-appellant and the 3rd accused-appellant on counts 2 and 4 relating to the abduction of Manelka de Silva.
Evidence relating to the abduction of Rukman Paranavitana on 1.12.89 was adduced by his mother Leela Gamage. The abductors had come to her house around 11.30 p.m. and ordered the inmates to open the door saying that they were from the police. Anyway Leela Gamage has testified that she did not open the door because she was aware of the incident that had taken place in the afternoon. She in fact was referring to the utterances made by the 4th accused-appellant and the 5th accused-appellant to Rukman Paranavitana when he queried from them as to why they were taking away Manelka de Silva. That point of time they had given him the warning that the same fate would fall on his as well that night. This evidence was elicited from Niroshan de Silva. When the inmates did not open the door they broke open the door and entered the house. According to her it was the 4th accused-appellant who broke open the door. When Leela Gamage highly excited gazed at the intruders one of them said (SINHALA TEXT). She had a torch light with her. She saw the 4th accused-appellant and the 5th accused-appellant armed with pistols. She had seen them earlier at the Principle's office and also while they were playing with the school children.
At the trial this witness has identified the 4th and 5th accused-appellants. In respect of these two accused-appellants the prosecution was able to establish the means of knowledge because she had seen them before. In addition, she identified the 2nd and 3rd accused-appellants as the other persons who came in. This witness also spoke of going to the Sevana camp along with a letter given by the 1st accused-appellant addressed to the 3rd accused (at the trial) to be given through the 2nd accused-appellant. When she went to the camp she had seen the 1st accused-appellant along with the 2nd accused-appellant. The latter after the opening the letter said "son is not there anymore." That was on 01.01.90. According to her at the time of abduction the 3rd accused-appellant was wearing a turban. Her evidence in respect of the 3rd accused-appellant seems to be only visual identification at the time of the offence was committed. In the Habeas Corpus application the 2nd, the 4th and the 5th accused-appellants had been made respondents. We affirm the convictions of the 4th accused-appellant, the 5th accused-appellant, the 2nd accused-appellant for abduction charge counts 11 and 36. We also affirm the conviction of the 1st accused-appellant, 2nd accused-appellant, 4th accused-appellant and the 5th accused-appellant for conspiracy charges. We acquit the 3rd accused-appellant of the charges relating to the conspiracy and abduction charges, namely count 2, 4, 11, and 36 for the reason that the evidence available against him is insufficient to allow the conviction to stand.
Evidence relating to the abduction of Susil Kumara comes from his mother Don Leelawathie. This boy was abducted on 12.11.89 at 5 a.m. When there was a knock at the door ordering them to open it they were reluctant to open the door. She had switched on the lights of the sitting room. Then the abductors had broke open the door, come in and asked for Susil Kumara. She had observed the presence of about 8 persons. Of the abductor she identified the 4th accused-appellant and the 5th accused-appellant. Her means of knowledge was that she had seen both of them before. Later on at the trial she identified the 2nd accused-appellant also as one of the persons who had come to abduct her son.
As regard the implication of the 4th accused-appellant the learned President's Counsel strongly urged that Don Leelawathie's evidence relating to the identification of the 4th accused-appellant should be rejected, for the reason that in the Habeas Corpus application No. 415/92 filed by her husband Y. U. K. Munidasa the 4th accused-appellant was not a respondent. He rightly pointed out that Don Leelawathie speaks of the presence of her husband when the abductors came in search of Susil Kumara. Therefore the learned counsel submitted that a reasonable doubt arises as to whether Don Leelawathie did in fact identify the 4th accused-appellant being present among of the abductors. We uphold the submission of the learned President's Counsel and acquit the 4th accused-appellant of the charge of abduction in counts 13 and 38. Don Leelawathie had met the 2nd accused-appellant at the Sevana camp and pleaded with the 2nd accused-appellant to release her son. That point of time the 2nd accused-appellant had demanded her to surrender the elder son Susantha in which case he would release Susil Kumara, the younger son who was just 16 years of age. The 2nd accused-appellant had told her that he had a list given to him by the 1st accused-appellant and that he would abduct all the students who were in that list. Later she had come to know that the elders on Susantha too had been abducted. Then she rushed to the 2nd accused-appellant and pleaded with him to release the younger child Susil Kumara because her elder son was then is custody. The reaction of the 2nd accused-appellant was as follows: "you did not give the elder son when I asked for him now both are with us". He refused to accede to her plea. Susantha Kumara had been abducted from the aunt's house. Aunt Rosalin Premaratne was unable to identify the abductors. The 1st accused-appellant in his evidence did not refute the utterances alleged to have been made by the 2nd accused-appellant to the effect that the 1st accused-appellant had given a list of names of the students to be abducted.
There is corroborative evidence coming from witness Lionel father of Prabath Kumara who spoke of seeing this child and Dhammikka Kumara Baragamaaratchi at his door step along with the persons who abducted his son Prabath Kumar on 17.11.89. In fact Lionel's evidence was that the abductors had come in a van with students already abducted. Lionel speaks of the presence of the 5th accused-appellant amongst the abductors. Therefore we see that there is strong evidence before Court for the learned trial Judge to convict the 2nd accused-appellant and the 5th accused-appellant for the abduction of Susil Kumara. There is no reason for us to interfere with the finding of guilt entered by the learned trial Judge in respect of the 2nd and 5th accused-appellants.
We affirm the convictions of the 1st accused-appellant and the 2nd accused-appellant on counts 2 and 4. There is no sufficient evidence to implicate the 4th accused-appellant in the abduction. Hence we proceed to acquit him of counts 13 and 38.
Rosalin Premaratne from whose house Susantha Kumara was abducted did not identify any of the abductors. Learned Deputy Solicitor-General quite rightly did not support the convictions of the 1st accused-appellant and the 2nd accused-appellant on counts 2 and 4 relating to that abduction. We acquit them on those counts.
It is significant that the abductions of Dammikka Kumara Baragamaaratchi, Pradeep Kumara Wijesinghe and Prabath Kumara had taken place on the same day 17 November 1989.
Evidence relating to the abduction of Pradeep Kumara Wijesinghe came from his grandmother Korale Jayasinghege Hamine and Anura Gonawala. Pradeep Kumara Wijesinghe was a student of Udagama Maha Vidyalaya. He was abducted on 17.11.89 in the night. According to her on that day Pradeep was sleeping in a friend's house. Around 1.00 o'clock in the night she heard a voice from outside ordering the inmates to open the door saying that they were from the police. Reluctantly when she opened the door three people had entered the house. She did not know one person. She knew the other two and she identified the 5th accused-appellant and the 6th accused-appellant. The fact that she knew them at that point of time was not impugned in cross-examination. When Hamine opened the door according to Anura Gonawala, she had a lamp with her and Anura Gonawala said that one of the intruders flashed a torch. Anura Gonawala was a friend of her other son Weeraratne.
That night Anura Gonawala and another friend Ajith were sleeping at Hamine's house. They asked for the whereabouts of her grandson Pradeep Wijesinghe. Hamine spoke of the 6th accused-appellant assaulting her son Weeraratne with a club. Thereafter the intruders left the house taking Anura Gonawala along with them. Anura Gonawala corroborated the evidence of Hamine regarding the fact that three people entered Hamine's house getting her to open the door on the pretext that they were from the police.
Anura Gonawala spoke of how he was put into a white coloured van in which there were a number of other persons. He was asked to lie down inside the van. Thereafter they went to the house of Dayananda where Pradeep was sleeping that night and brought him also to the van. He also noted some persons wearing camouflage dresses. Pradeep too was assaulted. Anura Gonawala testified to the presence of the 6th accused-appellant. He had seen the 6th accused-appellant before at the Sevana camp. The learned trial Judge has evaluated the evidence of Hamine and Gonawala relating to the identity of the persons who came in search of Pradeep Kumara Wijesinghe that night. They were the 5th and 6th accused-appellants. In fact the presence of these two accused-appellants in that white coloured van in which there were a number of persons already abducted was elicited from Prabath Kumara's father Lionel when he gave evidence relating to the abductio