HON. ATTORNEY GENERAL VS JONSON COLLIN VALENTINO ALIAS WASANTHAN

• Case Number: 2022SCOA0292C2012Y
• Citation: 2022SCOA0292C2012Y
• Date: 10 March 2022
• Court: Court of Appeal (Sri Lanka)

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HON. ATTORNEY GENERAL

VS

JONSON COLLIN VALENTINO ALIAS WASANTHAN

Court of Appeal Case No: CA /HCC/0292/12
High Court Colombo Case No: HC/4337/2008 (1)

In the matter of an appeal against an order of the High Court under Section 331 of the code of Criminal Procedure Act No 15 of 1979

Hon. Attorney General,

Complainant

Vs.

Jonson Collin Valentino Alias Wasanthan

Accused

And Now Between

Jonson Collin Valentino Alias Wasanthan

Accused-Appellant

Vs.

Hon. Attorney General,
Attorney General's Department, Colombo 12.

Complainant-Respondent

Before: N. Bandula Karunarathna J.
&
R. Gurusinghe J.

Counsel: Dr Ranjith Fernando with Champika Monarawila AAL for the accused-appellant

Dileepa Pieris DSG for the complainant-respondent

Written Submissions: By the accused-appellant on 07.02.2022, 06.06.2019 & 25.05.2015

By the complainant-respondent 03.02.2022 & 23.08.2018

Argued on : 13.01.2022

Decided on : 10.03.2022

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N. Bandula Karunarathna J.

This appeal is from the judgment, delivered by the learned Judge of the High Court of Colombo, dated 27.08.2012, by which, the accused-appellant, who is before this Court on Zoom platform, was convicted and sentenced to death for having murdered Thangaraja Maheshwaran and Chandrakumar Mahindan (the deceased), committing the offence of murder punishable under section 296 of the Penal Code.

There were 2 charges in the indictment. They are as follows;

(a) Count 1;

that on or about 01.01.2008, he committed the offence of murder by causing the death of Thangaraja Maheshwaran which is an offence punishable under Section 296 of the Penal Code.

(b) Count 2;

that at the same date, time and place set out in count 1 and during the same transaction he committed the offence of murder by causing the death of Chandrakumar Mahindan which is an offence punishable under Section 296 of the Penal Code.

At the trial, 18 witnesses gave evidence on behalf of the prosecution namely;

Guruge Dharmasiri Perera (PW1)

Selvadorei Paramasodinadan (PW2)

Ganeshpillei Sodilingam (PW24)

Thiyagaraja Parameshwaram (PW38)

Widanage Chandana Priyantha Kumara (PW30)

Bandula Weerasekara (PW29)

Gananadan Nithyanadan (PW3)

Edirisuriya Arachchige Sunil Chinthaka Edirisuriya (PW44)

Dhammika Jayalal Keerthi Iddamalgoda (PW21)

Dinesh Subharaja (PW12)

Chaminda Anil Weerarathna (PW39)

Ananda Samarasekara (PW28)

Nuwan Jayashantha Illeperuma (PW42)

Kiribathgalage Sunil Kumara (PW27)

Raveendu Piyalal Samaranayaka (PW37)

Ranamuni Arachchige Samantha Priyalal Wijerathna (PW41)

Pathirannehelage Gamini Madawala (PW34)

Suresh Indika Idirisuriya (PW35)

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Upon the conclusion of the prosecution case after the learned High Court Judge having explained the rights of the accused-appellant, he has given evidence and closed the defence case.

After the trial, the learned trial Judge found the accused-appellant guilty on the 1st count and imposed the death sentence. The accused-appellant was acquitted on the 2nd count. The accused-appellant preferred this appeal against the said conviction and sentence.

The grounds of appeal are as follows;

(i) The finding of guilt is contrary to the weight of evidence led in this case.

(ii) The prosecution failed to prove the case beyond a reasonable doubt.

(iii) The learned High Court Judge appears to have overlooked several items of evidence favourable to the accused-appellant.

(iv) The learned High Court Judge in relying on the evidence of P.C. 52152 Dharmasiri Perera to find the accused-appellant guilty of murder, appears to have overlooked his evidence when he stated that he was unable to mention how the deceased Maheshwaran was murdered on 01.01.2008.

(v) The learned High Court Judge failed to take into account the evidence of Dr N.A.S.P Wijayerathna, A.J.M.O Colombo, who confirmed the omission of P.C.52152 Dharmasiri Perera to identify the person who shot at him and the deceased, T. Maheshwaran around 9.35 am on 01.01.2008 when he gave a short history of the incident to the doctor on 07.01.2008.

(vi) The learned High Court Judge, if he has correctly assessed the evidence of Dr N.A.S.P Wijerathna, A.J.M.O Colombo, ought to have rejected the evidence of P.C. 52152 Dharmasiri Perera.

(vii) The learned High Court Judge failed to take into account the evidence of P.C 52152 Dharmasiri Perera, who stated that he did not see any weapon in the hands of the accused-appellant.

(viii) The learned High Court Judge failed to take into account the evidence of P.C 52152 Dharmasiri Perera, who stated that he cannot state whether the accused- appellant was injured by the use of his pistol.

(ix) The learned High Court Judge failed to take into account the following contradictions in the evidence of Gananathan Nithiyanandan, the eye witness in the case.

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a. This witness in evidence in chief after stating that he saw the person who shot at Maheshwaran, stated that out of fear never told the police that he saw the man who shot at Maheshwaran.

b. During cross-examination, he admitted that he never told the police that he saw the man who shot Maheshwaran having a gun in his hand.

c. Since he identified the accused-appellant in Court, a portion of his statement made to the police on 01.01.2008 was marked as a contradiction (V 1), where he told the police that he could not identify the person who shot at the deceased, Maheshwaran.

(x) The learned High Court Judge failed to take into account the evidence of Gananathan Nithyanandan when he stated that he cannot mention how injuries were inflicted on the deceased Maheshwaran.

(xi) The learned High Court Judge failed to observe that neither a gun nor a pistol was shown to P.C Dharmasiri Perera nor Gananathan Nithiyanandan to prove the identity of the gun or pistol alleged to have been used on 01.01.2008 in the assassination of Maheshwaran.

(xii) The learned High Court Judge failed to observe that the prosecution had not produced P1 (pistol) and P7 (revolver) through P.C Dharmasiri Perera or Gananathan Nithiyanandan to establish the identity of the weapon alleged to have been used in the killing of Maheshwaran, even though they were marked when Government Analyst Madawela gave evidence in court on 19.04.2012

(xiii) The learned High Court Judge failed to observe that the factual evidence given by Gananatham Nithiyanadan is directly in conflict with evidence given by Dr Ananda Samarasekara, JMO Colombo who stated that Maheshwaran was shot from a distance of well over three feet; hence the evidence of Gananathan Nithiyanathan indicated that Maheshwaran was shot by the assailant when he was near Maheshwaran cannot be accepted as true.

(xiv) The learned High Court Judge failed to observe that it is impossible to treat Gananatham Nithiyanandan as an eyewitness on a comparison of his evidence with the evidence given by Dr Ananda Samarasekara J.M.O Colombo.

(xv) The learned High Court Judge failed to take into account the evidence of Gamini Madawala, a Government Analyst who had given evidence on 23.04.2012; Due to his inability to mention when P1 (pistol) and P 7 (revolver) was used and hence in the absence of any evidence to prove that P 1 and P 7 were used by the accused- appellant on 01.01.2008, an adverse inference cannot be drawn against the accused- appellant.

(xvi) The learned High Court Judge failed to follow an important principle in a case of circumstantial evidence, if two decisions are possible from proved facts, the evidence of the Government Analyst was favourable to the accused-appellant

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because none of the witnesses identified a weapon in the hand of the accused- appellant on 01.01.2008.

(xvii) The learned High Court Judge failed to observe that an adverse inference of guilt cannot be drawn on the basis that bloodstains found on the firearm number 0305323 originated from the accused-appellant, as it is only a suspicious circumstance not sufficient to establish guilt or to release the prosecution of its burden of proving the case against the accused-appellant beyond a reasonable doubt.

(xviii) The learned High Court Judge failed to observe that bloodstains found on the firearms and clothes worn by the accused-appellant were not linked to the bloodstains of the deceased, an item of evidence favourable to be accused- appellant.

(xix) The learned High Court Judge, by giving undue importance to the prosecution case, misdirected him by stating that evidence given by the accused-appellant did not create any doubt in the prosecution case. It is indeed a clear misdirection on the burden of proof in criminal cases.

The most important eyewitness, in this case, was Guruge Dharmasiri Perera (PW 1), who had been present at the scene...