• There is no evidence to establish a pre-meditated plan between the two accused to kill the deceased

By Lakmal Sooriyagoda   

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.   

However, the first accused Chelan Janaka Kumara who caused the firearm to discharge causing injuries to the deceased was sentenced to five-years-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 weres living at Thimbirigasyaya at the time of his death. On the 13th of January 2009, in the evening, they had come 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, the two accused had ridden up to the car on a motorcycle and stopped near the driving seat where the deceased was seated, and shouted in Sinhala, “Ado Kavinda.” The shutter had been closed at that time. When his 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 had shot the deceased.  The Trial Judge himself concedes that the subsequent conduct of the accused are compatible with the defense version. If the accused had come to kill the deceased, they could have fled the place quickly on their motorcycle.