SOMARATNE RAJAPAKSE OTHERS V. HON. ATTORNEY GENERAL (KRISHANTHI KUMARASWAMY RAPE CASE)

SOMARATNE RAJAPAKSE OTHERS V.
HON. ATTORNEY GENERAL
(KRISHANTHI KUMARASWAMY RAPE CASE)

SUPREME COURT
DR. SHIRANI A. BANDARANAYAKE, J.,
EDUSSURIYA, J.,
YAPA, J.,
J.A.N. DE SILVA, J. AND
JAYASINGHE, J.
S.C. APPEAL NO. 2/2002 (TAB)
H.C. COLOMBO NO. 8778/97
NOVEMBER 12TH, 17TH, 27TH AND 28TH 2003

Penal Code - Section 293 - Culpable homicide - Section 294 - Murder - Section 298 - Punishment for murder - Section 32 - Liability for act done by several persons in furtherance of common intention - Section 357 - Kidnapping or abducting a woman to compel or force her to have illicit intercourse or seduce to illicit intercourse - Section 364 - Code of Criminal Procedure Act - Section 241 - Trial may be held in the absence of accused - Section 450 - Trio at Bar - Evidence Ordinance - Section 25 - Confession made to a police officer not to be proved against an accused person - Section 27- How much of information received from accused may be proved; a fact discovered by reason of such information -Army Act - Military Law.

This is an appeal filed in terms of Section 45 1 (3) of the Code of Criminal Procedure Act against the conviction and sentences imposed by the judgment of the Trial-at-Bar on the Accused - Appellants [Appellants].

The 1st to 5th Appellants had made confessions to the Military Police accepting their culpability to the offences in question. In addition, the Appellants did not offer any explanation as to how they came to know independently of one another, the exact location of where the bodies of the four deceased persons and where their clothing were buried.

At the hearing, the Appellants took up the following seven grounds of appeal;

(1) Three Judges of the Trial-at-Bar gave three separate Judgments independent of each other without any indication on record that there was concurrence or agreement. Accordingly, there was no valid Judgment.

(2) The Trial-at-Bar erred in law by admitting the confessions made by the Appellants to the Officers of the Military Police when in fact they were obnoxious to Section 25 of the Evidence Ordinance.

(3) The Trial-at-Bar erred in law by effectively inferring guilt of the Appellants from recoveries made in terms of section 27 of the Evidence Ordinance.

(4) The Trial-at-Bar erred in law by placing reliance on photographic ! evidence to establish identity of the victims.

(5) The Trial-at-Bar erred in law by failing to judicially evaluate the items of circumstantial evidence.

(6) The Trial-at-Bar erred in law by rejecting the Dock Statements made by the Appellants on the basis of a consideration of the contents of the confessions admitted in evidence.

(7) The Trial-at-Bar erred in law by the addition of a charge of rape following an amendment to the indictment which was illegal and therefore vitiated the entire proceedings.

Held:

(1) Notwithstanding there were three separate Judgments by the three Judges, all of them have come to the same conclusion after considering the material individually and collectively. It cannot be accepted that there was no valid judgment merely because the Trial-at-Bar delivered three separate Judgments.

(2) Considering the powers and the authority the Military Police Officers have over the persons in their custody, combined with the gravity of the charges, the detention incommunicado, and the inaccessibility to lawyers to practice the rights of such persons in their custody would be paramount necessity to include a Military Police Officer also into the definition of "Police Officer" in terms of Section 25 of the Evidence Ordinance.

Accordingly the confessions made to Military Policy Officers by the Appellants are inadmissible and therefore cannot be used against the Appellants.

(3) A vital limitation on the scope of Section 27 of the Evidence Ordinance is that only the facts which are distinctly related to what

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