justice ambepitiya murder appeal judgement the offence of ...pdfs.island.lk/2006/12/22/p5.pdf ·...

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The second vomit sample wastested for these same three STIRloci and was found to be identical.Subsequently the second vomitsample was also further tested for atotal of 11 STIR loci.

Males have a Y chromosome,which is not found in women. Theanalysis of the Y chromosomemakes it possible to compare theDNA of two males. The Y chromo-some analysis was performed onthe vomit sample, and it was deter-mined that this vomit originatedfrom a male individual.

Based on the above findings areport was submitted to court. Thisreport contained the DNA profileobtained from the vomit sample. Arequest was also made to the magis-trate to produce blood samples fromany suspects in this case in order tocompare with the DNA profileobtained from the vomit sample.

A blood sample was received,which was taken from the suspectSampath Thusahara WijewardenaAbeywickrame. About 2ml of bloodhad been collected into a plastictube and had been placed in anenvelope and the envelope had beenduly sealed with sealing wax. Theseals were found to be intact. Theblood sample had been drawn by theJMO Colombo, and was accompa-nied by a letter from the office of theJMO signed by Dr. Alwis. R. M.Abeyrathne Rajapakse deliveredthe sample. Genetech sent a letter ofreceipt and acknowledgement to themagistrate and Mr. Rajapaksesigned the same. It is clear that thechain of transmission of the sam-

ple precluded any tampering withthe sample.

Subsequently DNA was extract-ed from the blood sample and sub-jected to polymerase chain reaction(PCR) and Gel Electrophoresis andthe STR alleles at 12 STR locationswere determined. From this it waspossible to obtain the DNA profile ofthe suspect. This DNA profile wasthen compared with the DNA pro-file obtained from the vomit sample.This comparison was given in atable in the report submitted tocourts. It was found that the allelesin all the tested STIR loci in thevomit sample were identical to thealleles in the sample of blood.

Explaining the conclusive natureof her findings the witness statedthat the match probability was cal-culated as one in four hundred andseventy nine trillion. As the entireworld population is about 7 billion,this number far exceeds the numberof people in the world. Therefore itcan be concluded that no other ran-dom person could have the sameDNA profile. These findings wereincluded in the final report, whichwas also signed by Dr. GayaRanawake and Mr. RuwanIlleperuma and duly authenticatedand produced in court.

The sample of vomit and theremaining sample of blood from thesuspect have both been stored in thedeep freezer at Genetech and areavailable for examination.

During cross-examination thiswitness stated that although it isgood if the biological material doesnot contain any other organisms,the DNA test analyses specificallyhuman DNA and therefore theinclusion of microbial DNA will not

hinder the test. However the inclu-sion of another human beings DNAwill cause complications in the test-ing.

This witness also stated thatwhile there can be human DNA onthe road where the vomit was foundthis could be easily detected. In thevomit sample it was found thatthere was DNA only from one per-son. At a given STR locus there canbe only a maximum of 2 alleles. Ifthere are more than 2 alleles, it canbe said that there is a mixture ofDNA from more than 1 person.

During this analysis, they did notdetect more than 2 alleles in any ofthe STR loci.

Furthermore, this witness clari-fied that the process of GelElectrophoresis is carried out on agel, which is on a glass plate. Whenthe blood sample was analyzed, thegel which contained the DNA fromthe vomit sample was not present,since the gel is destroyed and theglass is cleaned, once the analysis isover. However prior to destroying

the gel, it is read and the alleles aredetermined and recorded.Therefore when the blood samplewas analyzed, the alleles in theblood sample were also similarlyread and compared with the allelesthat had been recorded for thevomit sample. This was recorded inthe DNA typing record book.

This evidence clearly establishesthat the vomit found at the placepointed out by Susantha Palibelonged to the 3rd accused andconfirms and corroborates the evi-dence of Susantha Pali, confirmingthat he was with the accused andhad the knowledge that he had vom-ited at the spot pointed out by him,thereby affording him the clearopportunity to make the identifica-tion of the accused subsequently.

Thus it has been proved beyonda reasonable doubt from the afore-said witness testimonies that thereexists a strong sequence of evi-dence linking the accused with themurder of Mr. Ambepitiya, and ofIP Upali Ranasinghe.

Considering the grounds ofappeal submitted on behalf of the2nd to the 5th accused, the first sub-mission was that the trial at barerred in its application of thecharge of conspiracy to the instantcase. It was submitted that the trialat bar erred in not holding that theprosecution had failed to establishthe charge of conspiracy againstthe 2nd to the 5th accused.

The offence of conspiracy isdefined under Section 113(a) of thePenal Code as; “If two or more per-sons agree to commit or abet or acttogether with a common purposefor or in committing or abetting anoffence, whether with or without

any previous concert or delibera-tion, each of them is guilty of theoffence of conspiracy to commit orabet that offence as the case maybe”.

The essence of conspiracy lies inthe common agreement or concur-rence or accord of minds, which isarrived at between the accused.This view was endorsed byGratiaen J. in Cooray, [(1950)51 NLR433] and it was reiterated inKanagaratnam, [(1952)47 CLW 42]where Choksy J. summarized theprinciples laid down in Cooray asfollows; “Under our law as it nowstands it is the agreement per se tocommit or abet a criminal offencewhich is intended to bepenalized, whether or notan overt act follows theconspiracy, so long as theexistence of the conspir-acy can be proved ... thecommon concurrence ofminds of more mindsthan one - with a view toachieving an objectwhich is an offenceunder our law that con-stitutes criminal conspir-acy under the PenalCode.”

While agreement is atall times the essence ofconspiracy it does notnecessarily contemplatea physical meeting of theconspirators or priorcontact and correspon-dence between or amongthe accused as being anessential or necessaryingredient to prove acharge of conspiracy.There is no legal require-

ment regarding a mode of concur-rence in the common purpose orthe manner in which such concur-rence may be established by theprosecution. In a case of conspiracyit is possible that there could be oneperson around whom the restrevolve. [Vide Meyrick 21 Cr.AR 94cited with approval by Gratiaen J.in Cooray]. The prosecution mustsimply establish an agreement toact together with a common pur-pose for or in committing anoffence. Hearne J. in Sundaram[(1943)25 CLW 38] has stated explic-itly that; ‘the gist of the offence ofconspiracy is agreement”.

Friday 22nd December, 2006 5Justice Ambepitiya murder appeal judgement

The offence of conspiracy is defined under .....

Naufer and another convict

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