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| Wednesday, 4 February 2004 |
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by Wasantha Ramanayake The Supreme Court yesterday affirming the conviction and sentence, dismissed the Krishanthi Kumaraswamy rape and murder appeal. The court included Military Police Officer to the definition of Police Officer in term of the Section 25 of the Evidence Ordinance and held that confessions made by such officers would not be admissible as evidence. It was submitted that the Evidence Ordinance had not defined the term police officers and the confessions made to the Police officers would not be admitted as evidence against the accused and the confessions made to Military Officers had been duly admitted by the Court of law. The special Bench of five Supreme Court Judges comprised Dr.(Mrs.) Shirani Bandaranayake, P. Edussuriya, H.S. Yapa, Asoka de Silva and Nihal Jayasinghe. Delivering the unanimous judgement, Justice Dr. Shirani Bandaranayake observed that Military Police Officers had far greater powers in respect of the persons arrested under the Military Law than those vested in a Police officer with regard to persons kept in their custody."Considering the powers and the authority the Military Police officers have over other persons in their custody, combine with the gravity of the charges, the detention in communicado and the inaccessibility to lawyers to practise, the rights of such persons in their custody would be a paramount necessity to include a Military Police officer also into the definition of the Police Officer in terms of Section 25 of the Evidence Ordinance." Accordingly, the court held that the confessions made to the Military Police officers by the appellants was inadmissible and therefore cannot be used against the appellants. Justice Bandaranayake observed that except for admissibility of the confession, the case had been proved beyond reasonable doubt. "I am of the view that there is no merit on any of the grounds urged by the learned counsel on behalf of the appellants except the ground relating to the admissibility of the confession made to the Military Police Officer, after leaving out confessions, the evidence referred to above establishes beyond reasonable doubts that the appellants are guilty of the offence which they have been convicted. In the circumstances, I affirm the conviction and the sentences imposed on the appellants and dismiss this appeal." Although the court did not accept the confession made to the Military Police Officer which was the base of the appeal, Justice Bandaranayake observed that the case against the appellants could entirely be based on circumstantial evidence and their failure to give an explanation with regard to the said evidence established the serious charges against them. "In such circumstances taking into consideration the position that there is no principle in the law of evidence which precludes a conviction in a criminal case being based entirely on circumstantial evidence and the fact that the appellants decided not to offer explanations regarding the vital items of circumstantial evidence led to establish the serious charges against them. I am of the view that the Trial-at-Bar has not erred in coming to a finding of guilt gainst the appellants," she noted. Justice Bandaranayake further observed that "With all their damning evidence against the appellants with charges including the murder and rape, the appellants did not offer any explanation with regard to any of the matters referred above." In the appeal accused-appellants, Army Personnel, R.D.Somaratne Rajapakse, G. Pradeep Priyadarshana, A. S. P. Perera, D.M. Jayathilake, D.V. Indrajith Kumara, and J.M. Jayasinghe cited the Attorney General as the respondent. They were convicted and sentenced by the Trial-at-Bar in Colombo for the abduction, committing the rape and murder of Krishanthi Kumaraswamy and committing the murders of her mother, brother and neighbour Rasamma Kumaraswamy, Kumaraswamy Poonrnawan and Thiruba Moorthi respectively in Chemmani, Jaffna on or around September 7, 1996. The accused-appellants averred that the Trial-at-Bar convicted them solely on a confession they made to Military Police Officers, that had been obtained under duress. They sought to set aside the conviction, order and the death sentence. Ranjith Abeysuriya PC appeared for the first accused-appellant. Dr. Ranjit Fernando appeared for the 2nd, 3rd and 4th accused-appellants. Solicitor General C.R. de Silva PC with Senior State Counsel Sarath Jayamanne appeared for the Attorney General. |
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