Two accused including a police Sub Inspector who mistakenly shot and killed one of their closest childhood friends when trying to show a pistol to the deceased to perform a joke, have been cleared from the death sentence after the Court of Appeal determined that two accused did not intend to kill the deceased.

Murder charges droppedHowever, the first accused Chelan Janaka Kumara who caused the firearm injuries to the deceased was sentenced to five-year-rigorous imprisonment for the charge of culpable homicide not amounting to murder. The first accused had admitted during the trial that he took the gun out of the trouser pocket of the second accused Nilusha Fernando, a Sub Inspector and tried to show it to the deceased to perform a joke. He never denied that he caused the firearm injury to the deceased. His position was that he never intended nor wanted to kill the deceased. He has admitted that the incident happened due to his foolishness.

Delivering its judgment regarding an appeal in this regard, the Court of Appeal ordered to acquit the second accused from the charges citing there is no evidence to establish that the second accused had common intention to kill the deceased.

Two accused were convicted for committing the murder of a Squash coach at SSC Kirindi Lakshan Cooray, for an offence punishable under Section 296 of the Penal Code read with Section 32 of the Penal Code. The Trial Judge delivered the judgment on the 11th of July 2018, convicting the two accused and sentencing them to death.

The deceased was a Squash coach at SSC. He and his wife were living at Thimbirigasyaya at the time of his death. On the 13th of January 2009, in the evening, they came to the deceased aunt’s house at Lunawa. The car stopped at the gate. The deceased was not able to find his slippers and asked his wife to look for them. At that time, two accused came near the door on a motorcycle, opposite the driving seat where the deceased was seated, and shouted in Sinhala, “Ado Kavinda.” The shutters were closed at that time. When the wife heard the noise, she looked up and saw the accused on the motorcycle near the door, opposite the driving seat where the deceased was seated, and the first accused shot the deceased.

The Trial Judge himself concedes that the subsequent conduct of the accused is compatible with the defence version. If the accused had come to kill the deceased, they could have fled the place quickly on their motorcycle. The wife of the deceased stated that at that time, no other people were there. The first accused himself drove the car to the nearest hospital without delay. The wife of the deceased admits that there was no delay in admitting the deceased to the Lunawa hospital.

The first accused and the second accused were at the hospital until the police came. The pistol and the rest of the ammunition were immediately handed over to the police by the second accused. The accused had not known that the deceased and his wife were there at the place of the incident. They met by chance.

The first accused testified under oath and said he grabbed the gun from the trouser pocket of the second accused. The prosecution did not challenge this position.

Court of Appeal justices Nissanka Bandula Karunarathna and R. Gurusinghe observed that there is no evidence to establish a pre-meditated plan between the two accused to kill the deceased. If the second accused, the Sub Inspector had a common intention to kill the deceased, he could have used the pistol himself. There was no evidence that the first accused had any experience of using a gun before.

“Being a sub-inspector of police, the second accused, serving in a Special Police unit, was well trained to use weapons; there was no reason for him to give the gun to the first accused to shoot the deceased. The Government analyst stated in his evidence that the particular gun does not have a safety lock. If there is a cartridge in the gun chamber, it will fire when the trigger is pulled,” Justice R. Gurusinghe observed.

There was no motive at all to kill the deceased. The deceased and the two accused were friends, and there was no animosity between the accused and the deceased, the Court of Appeal held.

The accused and the deceased met clearly by chance. There was no evidence at all to establish a pre-meditated plan between the two accused. The subsequent conduct of the accused is compatible with the defence version. The first accused himself took the deceased immediately to the nearest hospital. The second accused voluntarily handed over the weapon to the police immediately. The accused did not try to deny their involvement, the Court of Appeal further observed.




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