SC’s unanimous decision on Duminda Silva et al.
Posted on January 18th, 2020

by C.A.Chandraprema Courtesy The Island

January 18, 2020, 7:03 pm

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As actor turned politician Ranjan Ramanayake’s recorded phone conversations sent shock waves through society over the past couple of weeks, the conversations that came in for the most scrutiny were those between the actor-politician and a former High Court judge Padmini Ranawaka, who is heard importuning Ramanayake for a promotion to the Appeal Court. Among the reasons she mentions as to why the yahapalana government should grant her that promotion is the verdict she returned in the Duminda Silva case. The High Court Trial at Bar which heard that case was made up of High Court Judges Shiran Gunaratne, Padmini Ranawaka and M.C.B.S. Moraes. The President of the Trial at Bar Shiran Gunaratne in a dissenting judgment acquitted all accused. The judgment convicting Duminda Silva was written by Padmini Ranawaka and the other judge M.C.B.S.Moraes assented to that judgment, resulting in Duminda Silva and four other accused being convicted and handed down death sentences.

 The recorded conversations between the former CID Director Shani Abeysekera and Ranjan Ramanayake revealed that the CID Director was aware that Judge Padmini Ranawaka was going to return a guilty verdict and that the other judge Moraes was going to support Judge Ranawaka. The conversation reveals that Ramanayake had in fact spoken to Judge Padmini Ranawaka and the CID Director is heard telling Ramanayake not to call her again because she will be delivering the verdict they want. Those conversations proved beyond doubt that the High Court Trial at Bar was influenced by the yahapalana government. When the recorded conversations between Ranjan Ramanayake and Padmini Ranawaka and Shani Abeysekera came out, Hirunika Premachandra, the daughter of Bharatha Lakshman Premachandra went public and said that four people including her father were killed in that incident and that in any case, a five member bench of the Supreme Court had upheld the conviction handed down by the compromised judge Padmini Ranawaka.

Events of 8 October 2011

 The question that arises now is, if the High Court Trial at Bar judgment was tainted as it obviously was, how did a five member bench of the Supreme Court end up upholding it?  In reading the Supreme Court judgment, certain facts emerge. The two groups of political rivals that came face to face on the day of the incident were both armed. However, Duminda Silva never shot anybody, nor did he order anyone to open fire either. His group was not the first to shoot. In fact Duminda was the first to be shot and injured and it was only after he was shot at and injured that his party fired back in retaliation resulting in four deaths including that of Bharatha Lakshman. These are facts that emerge from within the text of the SC judgment itself. How then did the Supreme Court uphold Duminda Silva’s conviction for murder?

 Thirteen individuals were charged before the High Court Trial at Bar and Duminda Silva was the 11th accused. He was charged under Section 296 of the Penal Code which says that “Whoever commits murder shall be punished with death” and under Section 146 of the Penal Code which states that “If an offense is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offense, is a member of the same assembly is guilty of that offense”. How the Supreme Court recounted the events of the 8th of October 2011 were in a nutshell, as follows:

 On the 8th of October 2011 at about 6.30 am Duminda Silva had gone to the ‘Tamilnadu Watta’ polling booth and he                             had been seated on a chair close to the road and had been speaking to the voters and advising them to vote only for the PA and if they were going to vote for the UNP to refrain from voting. He had been interfering with the voters in the said manner at Tamilnadu Watta from 7.30 am to 11.30 am and he had been later asked to leave the place by a police ASP. Thereafter Duminda had gone to the house of one Ramesh for lunch where he had also consumed intoxicating beverages. At about 2.45 in the afternoon, Duminda along with a whole group of people had left Tamilnadu Watta.

 On the way, this vehicle procession had stopped at a place called ‘Kande Vihare.’ Duminda Silva had got a member of his party to take charge of a T-56 assault rifle. While the vehicles were proceding to Ambathale, they had stopped at a place called Rajasinghe Vidyalaya where Duminda had assaulted a youth who happened to be a supporter of Solangaarachchi. Then the vehicle procession had stopped near a place called Rahula Vidyalaya where Duminda had intimidated one Madushani Pathirana who happened to be the wife of Prasanna Solangaarachchi. Duminda had gone up to the said Madushani and had asked who she had voted for. She had stated that she voted for her husband.   

Thereafter a commotion had taken place near the said place in the course of which one Damith Suranga a member of the STF on duty near the polling station had been threatened with a pistol being pressed to his chest. According to Damith Suranga, a jeep that had followed Duminda’s jeep had carried people who were displaying around eight T-56 weapons.  Duminda’s procession of vehicles then met with the vehicle of the deceased Bharatha Premachandra. The Jeep of the said Bharatha Lakshaman had approached from the opposite direction and Duminda’s vehicle had blocked Bharatha’s vehicle. Thereafter there had been a verbal argument between Duminda and Bharatha Lakshman which was followed by the former assaulting the latter.  

At this moment, one Rajapurage Gamini who was the PSO of Bharatha Lakshman had shot Duminda in the exercise of his right of private defence. Afterwards one Janaka Bandara Galaboda (10th Accused) who was in possession of Duminda’s pistol had open fired at the PSO causing him critical injuries. Then an illegal T56 had been used to shoot the said Bharatha Lakshman and persons who accompanied him which resulted in the death of three more people. The said illegal T-56 had been recovered and as per the report of the government analyst, all 27 spent cartridges recovered from the crime scene had been fired from this weapon. 

How Duminda was held liable

 The Supreme Cout observed that the first requisite for imposing liability under section 146 of the Penal Code is that the person sought to be held liable for the act of another should have been at the time of the commission of the offense a member of the unlawful assembly. The liability will extend not only to offense committed in prosecution of the common object but also to offenses which the members of the assembly knew to be likely committed in prosecution of that object.  The Chief Justice pointed out that it would be artificial to focus exclusively only on the events that took place concerning the group led by Duminda and the entourage of Baratha Lakshman Premachandra. This last scene must be examined in the background of all the events that took place throughout the day.

 The SC stated that starting from the time the polling commenced and till the time it was drawing to an end, Duminda spent his day, marauding between polling stations with weapons, defying officials discharging their duties, and assaulting and victimizing people associated with Solangaarachchi. The only time they were not seen intimidating people were when the group was having lunch. No sooner than they finished their lunch, the group was seen assaulting, threatening, chasing people and flaunting their fire arms near Rahula Vidyalaya.  When the arms and the conduct of the accused persons are factored in, there can be no doubt that they had the illegal objective of intimidating the voters in the area.   The encounter between the deceased Baratha Lakshman and Duminda takes place shortly after the tense situation at Rahula Vidyalaya. It is important to note that the distance between the two places was around 500 meters and the time difference was not more than five minutes between the two incidents.

 The question is to assess whether the members of the unlawful assembly in a tense situation would have resorted to use their firearms which they brazenly carried. Duminda’s group possessed illegal weapons. All the 27 spent cartridges that were found at the crime scene had been fired from only one T-56 gun. There could not have been any necessity for the group led by Duminda to have this weapon with them. There were 10 police officers from MSD with pistols and three officers with two T-56 guns from the Mirihana Police authorized to guard Duminda. He had more than sufficient gunpower at his disposal to protect himself. If not for an insidious purpose, there could not have been any reasonable ground for Duminda and his group to possess and pass around a fully loaded illegal T-56.

 They were bearing the arms to use them when it is necessary to use them. No person in Duminda’s position would be so misguided to believe that the weapon bearers would throw away the weapons and resort to bare hands when the necessity arises. When Duminda blocked Bharatha’s vehicle convoy, got down and tried to assault him, ordinary reason would have well forewarned him of the likely escalation of violence which could result in causing death. The evidence clearly established the existence of an unlawful assembly which continued and existed at the time of shooting.

 The Supreme Court quotes an Indian case Rex vs Sadla where it was said that “If a member of an unlawful assembly is not able to walk away and has perforce to remain on the spot either because he is so injured that he cannot remove himself or because he is held up by others, he may still continue to be a member of the unlawful assembly if he shares the common object of the assembly subsequent to his being made helpless… He can, however, in such a position disavow his share in the common object by expressions, leaving no doubt that he did not share the object any more. If he is also unable to express himself in this respect, it would be fair to presume that he was incapable of both taking part and of sharing the objects of the unlawful assembly and that he had withdrawn himself from the unlawful assembly.”

 There can be no difference of opinion that where the evidence shows that the accused was placed in a predicament which virtually rendered his participation an impossibility, the burden of proving that he continued to be a member of the unlawful assembly still remains with the prosecution. If he could neither move, nor express himself, it would be fair to presume that he was incapable of both taking part and of sharing the object of the unlawful assembly and that he had withdrawn himself from the unlawful assembly. (It would appear that what was said about the Rex vs Sadla case applied directly to Duminda Silva.)

Rex vs. Sadla formulation

not applied

 However, the Chief Justice, in writing the judgement, posed the following question – “Where there is clear evidence that a person who is the leader of a group commits the first act in a criminal offense and thereby triggers retaliation, and during the course of that retaliation which he himself triggered, ends up receiving the first injury, should he escape the liability for his actions and intentions?” In my opinion, the aspect of withdrawal should not be examined in a complete vacuum. Particularly, if there is evidence that a man who has lent himself to a criminal enterprise, knowing that the weapons they carried will be used with an intent sufficient for murder, suffers the first injury in the course of that transaction he initiated, the Court must carefully weigh the circumstance surrounding the incident to see whether it was more probable than not that he continued to be a member of that enterprise.

The SC also quoted another Indian case Bindeshwari Singh and another vs The State where it was stated as follows:

“Normally and more particularly, when in the course of a single transaction many acts are committed by different members of the unlawful assembly in quick session within a short time, the rule of inference should be in favour of his continuing to be the member of that assembly till the close of that transaction.”   

The SC observed that in the present appeal, the unchallenged evidence of prosecution witness Lasantha Wanasundara is to the effect that the entire incident in Himbutana lasted only a little more than a minute. Four eye-witnesses have stated that the shooting took place almost immediately after Duminda Silva assaulted Bharatha, and up to the very minute he was shot in his head, Duminda was leading the unlawful assembly. This means that there could only have been a millisecond difference in time between the first shot and the retaliation. Now had there been a significant difference between in time and space between the parties and the commission of the crime, or that the act of shooting was of fundamentally a different character, it could be argued that Duminda may have retired from the unlawful assembly and dissociated himself with the actions.  

But as I have discussed earlier, causing death using firearms was very much a foreseeable consequence of their criminal enterprise. It is also true that Duminda was a member of that assembly when the transaction which lasted for fleeting 60 or more seconds—commenced. The deceased Bharatha Lakshman’s fatal injuries were inflicted imminently after Duminda was injured. His presence continued to be assistive and operative on the actions of the unlawful assembly. Therefore criminal liability could be imposed on the basis of unlawful assembly.

 It is on this basis that the SC upheld the conviction of Duminda Silva by the High Court Trial at Bar. Thus an accused who never shot anybody, nor ordered anyone else to open fire and was in fact the first to be shot and injured has been convicted of murder. The SC judgment also indicates that there is no evidence as to who exactly had used the illegal T-56 weapon to open fire at Bharatha Lakshman and party and it appears that the other accused too had been convicted on the basis of being a part of an unlawful assembly. The SC judgment indicates clearly that it was only after Duminda Silva was shot at and injured that his party fired back in retaliation resulting in four deaths.

 The underlying assumption appears to be that Duminda Silva went around on election day, with a group armed to the teeth with both legal and illegal weapons with the awareness that death could result from their conduct. There can be several opinions about such an assumption. Politicians go around with groups of supporters armed or unarmed with an intention to intimidate, but never to kill. A politician who kills someone in broad daylight on an election day, while polling is going on, will not only have to face criminal prosecution, he will also have to face the wrath of the people at the next election. Even if he is armed to the teeth, no politician will really set out on election day with even a remote intention of killing anyone. We have all heard of the political price that Dr Colvin R. de Silva had to pay not for committing murder but for getting a murder accused off the hook in his capacity as a trial lawyer.  

What Duminda Silva seems to have been doing on election day, was engaging in the traditional hooliganism that quite a number of politicians engaged in during that era. The behaviour of most politicians indicate that the display of guns is always designed to overawe and intimidate, not to kill. Duminda chose to assault Bhartatha Lakshaman instead of shooting him, though he had the capacity to shoot. What would have ended as a brawl became a murder scene because Bharatha Lakshman’s PSO over-reacted and shot Duminda. Furthermore, even though the whole incident lasted less than a minute, how long does it take to lose conscioness after being shot in the head? One would think that Duminda would have been out like a light the moment the bullet hit him.

 If one goes by the benchmark of what an ordinary well informed person would think, being drunk and disorderly, assaulting people and violating the election law is one thing, and shooting a person is another. No one in Duminda’s party was guilty of a shooting offense until they were shot at first. Those are the incontrovertible facts that emerge from the SC judgment itself. It is questionable whether the fact that the injured Duminda was lying unconscious on the ground at the moment that Bharatha Lakshman and the others were shot makes him party to a murder. Furthermore, in the eyes of an ordinary well informed person, when Duminda Silva assaulted Bharatha Lakshman Premachandra, the former’s intention was to assult the latter and not to kill him. If the intention was to kill, Duminda could have simply opened fire at Bharatha without even getting out of his vehicle. 

When one looks at the Rex vs Sadla formulation which the SC itself has quoted in this judgment, it is easy to understand why the President of the High Court Trial at Bar Shiran Gunaratne acquitted all the accused. On the one hand, the High Court judge who found Duminda Silva et.al. guilty has been proved to have been playing politics with justice. Even though a five member bench of the SC later upheld that conviction, the interpretation used by the then Chief Justice on that occasion may be perplexing to a well informed ordinary person. On the one hand, the High Court Trial at Bar judgment has been proven to have been tainted. Yet a five member SC bench has upheld it. Obviously, this conundrum has to be urgently addressed and it is best that the judiciary itself should take the initiative in this matter. The Rex vs Sadla formulation which has been quoted in this Supreme Court judgment would seem to hold the key to resolving this issue.

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