Duminda Silva's appeal against conviction and death sentence : SC verdict expected next month

Thursday, 16 August 2018 - 7:15

The verdict on the appeal against the death sentence, handed down to former Member of Parliament Duminda Silva and four others is expected during the month of September after written submissions by the Counsel for the appellants and the State, ended last Friday (10).

Through his appeal, Duminda Silva stated that he was seeking the jurisdiction of the Supreme Court to review and set aside their convictions and the death sentences handed down by the High Court on 8 September, 2015. In that case, Silva, two of his other supporters, D. M. Sarath Bandara and Chaminda Jayanath and a Police security officer, Anura Thushara de Mel were convicted over the murder of former MP and Presidential Advisor Bharatha Lakshman Premachandra and three others, by a three-Judge Bench of the Colombo High Court on a 2-1 split decision and the death sentence handed down.

The appeal is being heard by a five-Judge Bench of the Supreme Court, headed by Chief Justice Priyasath Dep and comprising Justices Buwaneka Aluvihare, Priyantha Jayawardene, Nalin Perera and Vijith K. Malalgoda. During the verbal submissions, the Counsel said that, on 08/10/2011 elections were held in Kollonnawa which was divided into the Kotikawatte/Mulleriyawa Pradeshiya Sabha and the Kollonnawa Urban Council. Different teams from each party contested these two bodies.

During the High Court and Supreme Court deliberations by the defence and prosecuting counsels and evidence of witnesses, it was revealed that Duminda Silva was in Tamil Nadu, a section of the Kollonnawa Urban Council, for nearly 7½ hours out of the 9 hours of voting and he left the area as he was asked to by an ASP, who gave an undertaking that there wouldn’t be any problems at that place. Therefore, his intention was to ensure a peaceful election as far as the ASP thought. Therefore, Duminda Silva left to Sumudu Lakshan’s residence. Lakshan was a candidate from the Kotikawatte/Mulleriyawa Pradeshiya Sabha area.

As per the evidence, on the way he saw a crowd of nearly 50 people in front of a polling booth near Rahula Vidyalaya. He stopped his vehicle, got down and inquired to the effect “did you all vote? If so why are you all waiting here”. Then he went up to a couple of ladies and inquired “for whom did you vote?” The lady said, for her husband, Solangaarachchi.

According to the prosecution witnesses Duminda Silva went back to his jeep. The Attorney General’s Department has charged Duminda Silva with intimidation of voters with the use of firearms and for unlawful assembly over this incident. However, one or two belated witnesses, some interested parties, gave different versions, while Solangaarachchi’s wife has not complained of assault or intimidation.

The two parties of Silva and Premachandra confronted each other when their vehicles stopped face to face. The Court was told that after an argument, Silva had pushed Premachandra by the shoulder and was turning back when Gamini, Premachandra’s bodyguard shot Silva twice on his head. Silva had received gunshot wounds on his head and his guards had rushed him to hospital. There had been gun shots fired by both sides when Silva was being taken to the hospital. Premachandra died when he was hit by bullets and several others received fatal injuries.

In their submissions, Silva’s Counsels pointed out that the High Court verdict against former MP Silva indicates that it has been based neither on the evidences nor on facts and law, but with the intention of tarnishing the image and personality of a popular political icon. The counsel stated that even if the judgment is read hundred thousand times, it is not possible to find a reason as to why former MP Silva was convicted. He said there was no evidence led that would give any foundation for the conviction of his clients and that the two judges who ruled against the accused had not made a proper judgment.

Making further submissions, the Counsels pointed out several other facts which the Attorney General’s Department also agreed with.
The first shot was fired at Duminda Silva

Bharatha Lakshman’s security guard, Gamini fired two shots to Duminda Silva’s head
Duminda Silva sustained serious injuries due to the two gun shots
Duminda Silva was immediately evacuated from the scene of the incident and was rushed to the hospital
Duminda Silva never used any firearm on any occasion
No firearm was handled by Duminda Silva at any time during the day under review.

 In addition, the President’s Counsels reiterated that Premachandra’s bodyguard ‘Gamini’ fired the first shot injuring Silva, as agreed by the Attorney General’s Department, which in fact precipitated and ignited all subsequent events. Counsel stated that Duminda Silva, who sustained grievous gunshot injuries to his head, fell unconscious and was immediately taken to the hospital, and as such cannot be held responsible for any events that took place thereafter.

Counsel further pointed out that under such unexpected circumstances; it was obvious that Duminda Silva had not visited the place of the incident with the intention of carrying out a shooting and under such circumstances; Duminda Silva should not have been made an accused and convicted of murder.

It was revealed that the Deputy Solicitor General had stated, in his written submission to the High Court, that if the shooting was taken as a standalone they would not have been in a position to charge these accused in the manner they have done now. It is not very difficult therefore to assume that the investigators worked backward from the scene of the murder and fabricated events and evidence prior to the shooting to find reasons to charge and convict Duminda Silva.

Counsel stated that all the witnesses, who gave evidence in connection with the incidents, were close associates of Bharatha Lakshman, therefore, they are interested parties. Furthermore, all statements were belated which gave them time to fabricate. The other witnesses who gave evidence on the incidents were Police officers who were subordinates of the investigators. Some of the new events were introduced in their 3rd and 4th statements, which is a clear indication of the conspiracy to fabricate evidence. It was revealed during the submissions that the Deputy Solicitor General had failed to call witnesses who could have described the incidents more clearly.

For instance, Bharatha’s driver who gave evidence at the inquest, was not even listed as a witness. He would have been the best person to highlight the sequence of events and meeting of the two parties and whether the vehicles were blocked and if so how? In addition the defence could have asked questions on matters such as, whether there was an ulterior motive for the Bharatha faction to deviate from Abayarama Temple, the original route.

The investigating Police officers, who recovered the so called gun from the 3rd accused was also not called to the witness box although he was listed as a witness. So was a taxi driver, behind whose taxi Sanjeewa Prasad, who gives a different twist to the story, was supposed to have been hiding. They said that there is also suspicion about the circumstances in which the 3rd accused was arrested at the airport, who in his dock statement said he was abducted, blindfolded and taken to a place called Bakamuna, forced to sign blank papers, wherein, details of a gun recovery was revealed.

Counsel also pointed out to the effect that the process of recovery of the so called guns was tainted and fabricated. Even the owners of the place where the so called guns were found, was not called to give evidence.

The dock statement of the 12th accused, who was a Police officer had very clearly revealed that he was asked to admit certain matters, the CID wanted but was listed as an accused as he did not compromise. This shows some of the witnesses, especially Police prosecution witnesses may have been under duress to say things according to the whims and fancies of the investigators, which was then uttered from the witness box. Counsel said the judgment says the 12th accused can be believed. It was stressed upon that although certain common objects were listed in the charges, the Honorable High Court Judge had found new objects without an iota of evidence and found Duminda Silva guilty, which is totally against the accepted criminal procedure.

It is very clear that the High Court Judgment did not fall in line with the ‘proof beyond reasonable doubt’ basis when they declared their verdict. By stating in the judgment itself, it does not matter who shot who first, is another willful misdirection of the law.

The judgment has failed to determine the authenticity of evidence and credibility of witnesses which are prerequisite in making the correct judgment. Stating in the judgment not a single witness can be declared 100 per cent truthful shows that there is doubt in the mind of the Judges and therefore the benefit of the doubt should have been given to the accused.

Stating in the judgment that although what has been told in Court, as a witness, need not be in line with those made during giving a statement to the CID, is unjustifiable and would compel witnesses to make up as and when they want. They stated that although the Defence Counsel has shown nearly 62 omissions and contradictions none of them have been taken into account.

Duminda Silva’s team of lawyers was led by President’s Counsel Anil Silva, President’s Counsel Anura Maddegoda and President’s Counsel Anura Premaratne with the support from other lawyers. The State was represented by the Deputy Solicitor General Thusith Mapalage.


(By Kamal Mahendra Weeraratne / Ceylon Today)

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