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Present : Sansoni, C.J. (President), H. N. G. Fernando, S. P. J., and
L. B. de Silva, J.

THE QUEEN v.

(1) DON JOHN FRANCIS DOUGLAS LIYANAGE

(2) MAURICE ANN GERARD DE MEL

(3) FREDERICK CECIL DE SARAM

(4) CYRIL CYRUS DISSANAYAKA

(5) SIDNEY GODFREY DE ZOYSA

(6) GERARD ROYCE MAXWELL DE MEL

(7) WILMOT SELVANAYAGAM ABRAHAM

(8) BASTIYAMPILLAI IGNATIUS LOYOLA

(9) WILTON GEORGE WHITE

(10) NIMAL STANLEY JAYAKODY

(11) ANTHONY JOHN BERNARD ANGHTE

(12) DON EDMOND WEERASINGHE

(13) NOEL VIVIAN MATTHYSZ

(14) VICTOR LESLIE PERCIVAL JOSEPH

(15) BASIL RAJANDIRAM JESUDASON

(16) VICTOR JOSEPH HAROLD GUNASEKERA

(17) JOHN ANTHONY RAJARATNAM FELIX

(18) WILLIAM ERNEST CHELLIAH JEBANESAM

(19) TERENCE VICTOR WIJESINHA

(20) LIONEL CHRISTOPHER STANLEY JIRASINGHE

(21) VITHANAGE ELSTER PERERA

(22) DAVID SENADIRAJAH TAMBYAH

(23) SAMUEL GARDNER JACKSON

(24) HUBERT GERARD RODNEY DE MEL
 

DEFENDANTS.

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TRIAL-AT-BAR NO. 2 OF 1962

Trial - at - Bar -Offences against the State-Conspiracy to commit any of them- Essential ingredient of conspiracy -Quantum of evidence -" Waging war against the Queen "-" Queen "-'' Overawe by means of criminal force or the show of criminal force the Government of Ceylon "-" Overthrow otherwise than by lawful means the Government of Ceylon by law established "- " Government of Ceylon "-Evidence of accomplice -Requirement of independent corroboration-Penal Code, as amended by s. 6 of Criminal Law (Special Provisions) Act, No. 1 of 1962, ss. 14, 114, 115, 120-Criminal Procedure Code, as amended by s. 4 of the Criminal Law (Special Provisions) Act, No. 1 of 1962, and the Criminal Law Act, No. 31 of 1982, ss. 440A, 440B-Criminal Law (Special Provisions) Act, No. 1 of 1962, ss. 6,12-Interpretation Ordinance, s. 2 (66)- Ceylon (Independence) Order in Council, 1948, s. 8-Ceylon (Constitution) Order in Council, ss. 3, 3 (4), 5,13,45,46 (1), 49,51, 57, 64-Evidence Ordinance, ss. 10, 24, 114.

In a Trial-at-Bar held under the provisions of the Criminal Law (Special Provisions) Act, No. 1 of 1962, and the Criminal Law Act, No. 31 of 1962, the defendants, almost all of whom were or had been high-ranking officers of the Armed Services and the Police, were charged upon three counts upon Information filed by the Attorney-General on the 21st November 1962. The charges set out in the Information were that the defendants, on or about the 27tb January 1962, did, in contravention of section 115 of the Penal Code (as amended by section 6 of Act No. 1 of 1962), conspire (1) to wage war against the Queen, (2) to overawe by means of criminal force or the show of criminal force the Government of Ceylon, (3) to overthrow otherwise than by lawful means the Government of Ceylon by law established.

The position of the prosecution was that the operation which was agreed upon by the conspirators was called off because of certain unexpected events .

Some of the prosecution witnesses were obviously accomplices and gave evidence under a conditional pardon.

Held: (i) The essence of conspiracy is the agreement to do the unlawful acts alleged ; but it is not necessary that any act should take place in pursuance of the agreement. Whether a criminal act is done or not, the agreement, and not the act, is what is penalised. Proof of acts committed in pursuance of the agreement is relevant only so far as they furnish evidence from which the prior agreement may legitimately be inferred. The explanation to section 115 of the Penal Code says there need be no act or illegal omission to make the conspiracy an offence.

(ii) There must be proof against each conspirator that he had knowledge of the general purpose of the plot and the common design, though each need not be equally well informed of the details. Agreement, following upon intention, is enough, and is also of the essence of conspiracy. But that does not mean that, the agreement having been made, the conspiracy does not exist beyond the actual time at which the agreement is born. The conspiracy will persist so long as the conspirators remain in agreement, and so long as they are acting in accord, in furtherance of the objects for which they entered into the agreement.

(iii) The evidence in support of an indictment charging conspiracy is gene Tally circumstantial. It is not necessary to prove any direct concert or even any meeting of the conspirators, as the actual fact of conspiracy was be

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inferred from the collateral circumstances of the case. It is competent to prove isolated acts as steps by which the conspiracy may be established. What is necessary is that the conspirators " entered into an agreement -with a common design. There may be one person round whom the rest revolve- or a chain of conspirators each communicating only with the one next to him ". Some conspirators may concoct or originate the scheme, others may join it afterwards. They will be all equally guilty. Secrecy is frequently a characteristic of conspiracy, but forms no essential element of the crime.

(iv) Once there is prima facie evidence of the existence of a conspiracy between certain defendants, the acts and declarations of a party to it carrying out the conspiracy, and done or made before it had been completed, are admissible under section 10 of the Evidence Ordinance against the others who were parties to it. But the provisions do not include a statement made by a conspirator, with reference to past acts done in the actual course of the carrying out of the conspiracy, after it has been completed or coma to a termination. The conspiracy must be on foot for Section 10 to be applicable.

(v) In the present case there was no such thing as a cut-throat defence ; the evidence, therefore, of any defendant could be treated in the same way (although with much caution) as that of any other witness who came to the witness stand not from the dock but from the witness room.

(vi) Mere evidence of a person's association with the conspirators, in the absence of words or conduct which prove that he also willingly entered into the conspiracy, is not sufficient for the inference of conspiracy to be drawn against him.

(vii) The word " Queen " in the expression " to wage war against the Queen " in section 115 of the Penal Code is used in a figurative sense as meaning the Head of the State, the external embodiment of lawful constitutional Government. Every insurrection to compel Her Majesty to alter her Government amounts to levying war.

(viii) In section 115 of the Penal Code the expression " to overawe by means of criminal force or the show of criminal force the Government of Ceylon " means that the force to be used or shown would put the Government in awe, so that it feared to do that which it had a mind and will to do, and which the law empowered it to do, or that it was compelled to do that which it would not otherwise have done or which was contrary to law.

(ix) The gist of the offence in count (3) of the Information is that the conspiracy was to overthrow the Government in power by unlawful means, that is to say, means other than those provided in the Constitution. A plan, having as its object the deposition of the Cabinet duly appointed for the time being under the Constitution, or the coercion or the compulsion of the Governor-General or the Prime Minister to exercise executive power without the Cabinet so established, and/or with Parliament being dissolved involuntarily, would be a plan to overthrow the Government. Such a plan would be punishable under Section 115 of the Penal Code (as amended) if the contemplated means by which its object is expected to be achieved are unlawful, e. g. :-(a) by unlawful arrests, or even the unlawful arrest of one Minister, and/or (6) by a show or threat of force unauthorised by law. If the contemplated means constitute in fact overawing the Governor-General, the Prime Minister or the Cabinet for an object just mentioned, the plan would become punishable on that score as well.

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(x) In the case of fellow conspirators or accomplices the established practice, virtually equivalent to a rale of law, requires independent corroboration of their evidence, in material particulars. What is required is some additional evidence, direct or circumstantial, rendering it probable that the accomplice's story is true and reasonably sate to act upon, and connecting or tendina to connect the particular defendant with the offence. The degree of suspicion attaching to an accomplice's evidence varies according to the extent and nature of his complicity.

TRIAL-AT-BAR held under the provisions of the Criminal Law (Special -Provisions) Act, No. 1 of 1962, and the Criminal Law Act, No. 31 of 1962.

Douglas St. C. B. Jansze, Q. C., Attorney-General, with V. Tennekoon, Solicitor-General, Ananda Pereira, Deputy Solicitor-General, L. B. T. Premaratne, Senior Crown Counsel, T. A. de S. Wijesundere, Senior Crown Counsel, V. S. A. Pullenayegum, Crown Counsel, and Nod Tittawela, Crown Counsel, for the prosecution.

G. G. Ponnambalam, Q.G., with S. J. Kadirgamar, E. A. G. de Silva, K. N. Choksy, H. D. Tambiah and Manivasagam Underwood, for the 1st defendant.

G. G. Ponnambalam, Q.G., with S. J. Kadirgamar, E. A. G. de Silva, K. N. Choksy and Manivasagam Underwood, for the 2nd defendant.

G. G. Ponnambalam, Q.C., with S. J. Kadirgamar, E. A. G. de Silva, R. A. Kannangara and K. N. Choksy, for the 3rd defendant.

G. G. Ponnambalam, Q.G., with Stanley de Zoysa, S. J. Kadirgamar, A. G. M. Ameer, E. A. G. de Silva, Neville de Jacolyn Seneviratne and M. Underwood, for the 5th defendant.

G. G. Ponnambalam, Q.G., with S. J. Kadirgamar, E. A. G. de Silva, R. A. Kannangara, K. N. Choksy and M. Underwood, for the 6th defendant.

G. G. Ponnambalam, Q.G., with S. J. Kadirgamar, E. A.G. de Silva, G. F. Sethukavalar and R. R. Nalliah, for the 7th defendant.

G. G. Ponnambalam, Q.G., with S. J. Kadirgamar, E. A. G. de Silva, R. R. Nalliah, R. Ilayperuma and E. Cooray, for the 8th defendant.

G. G. Ponnambalam, Q.G., with S. J. Kadirgamar, A. G. M. Ameer, E. A. G. de Silva, R. R. Nalliah and E. Cooray, for the 9th defendant.

G. G. Ponnambalam, Q.G., with S. J. Kadirgamar, E. A. G. de Silva, and K. Viknarajah, for the 10th defendant.

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G. G., Ponnambalam Q.G., with S. J. Kadirgamar, A. C. M. Ameer, E. A. G. de Silva, G. F. Sethukavalar and R. R. Nalliah, for the 13th defendant.

G. G. Ponnambalam, Q.G., with 8. J. Kadirgamar, A. (7. M. Ameer, E. A.G. de Silva, R. R. Nalliah and E. Cooray, for the 14th defendant.

G. G. Ponnambalam, Q.C., with S. J. Kadirgamar, E. A. G. de Silva and R. A. Kannangara, for the 15th defendant.

G. G. Ponnambalam, Q.G., with S. J. Kadirgamar, E. A. G. de Silva and Sunil Rodrigo, for the 17th defendant.

G. G. Ponnambalam, Q.G., with S. J. Kadirgamar, E. A. G. de Silva, Izadeen Mohamed and H. D. Tambiah, for the 22nd defendant.

G. G. Ponnambalam, Q.G., with Stanley de Zoysa, S. J. Kadirgamar, E. A. G. de Silva, Neville de Jacolyn Seneviratne, K. Viknarajah and R. Ilayperuma, for the 23rd defendant.

G. G. Ponnambalam, Q.G., with S. J. Kadirgamar, E. A. G. de Silva, Cecil de S. Wijeratne and M. Underwood, for the 24th defendant.

E. G. Wikramanayake, Q.G., with A. G. M. Ameer, George Samera-wickreme, R. A. Kannangara and H. D. Tambiah, for the 4th defendant.

E. G. Wikramanayake, Q.G., with G. T. Samerawickreme, R. A. Kannangara and P. N. Wikramanayake, for the 16th defendant.

E. G. Wikramanayake, Q.G., with J. V. G. Nathaniel and A. W. N. Sandrapagas, for the 18th defendant.

S. J. Kadirgamar, with E. A.G. de Silva, Elmo Vannitamby, H. D. Tambiah, L. Kadirgamar and R. L. Jayasuriya, for the 11th defendant.

S. J. Kadirgamar, with A. C. M. Ameer, E. A. G. DC Silva, K. Viknarajah and Desmond Fernando, for the 12th defendant.

H. W. Jayewardene, Q.G., with G. T. Samerawickreme, R. A. Kannangara and L. G. Seneviratne, for the 19th defendant.

A. H. C. de Silva, Q.C., with Stanley Alles and K. G. Kamalanathan, for the 20th defendant.

A. E. G. de Silva, Q.C., with Stanley Ales and K. G. Kamalanathan, for the 21st defendant.

Cur. adv. vult.

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THE JUDGMENT OF THE COURT

April 6, 1965.

Upon the information filed by the Attorney-General on 21st November 1962, twenty-four defendants were charged upon three counts of alleged offences against Section 115 of the Penal Code; and in terms of Sections 440A and 440B of the Criminal Procedure Code as amended by the Criminal Law Act, No. 31 of 1962, the then Chief Justice Basnayake C.J. nominated us to constitute the Bench before which the defendants shall be tried at bar without a jury.

The defendants raised various pleas before us, which have all been rejected. Thereafter the trial proper commenced on 3rd June, 1963.

It had to be adjourned from time to time because of the absence through illness of one or the other of the defendants. But by amending Legislation contained in Act No. 10 of 1963, the court was authorised to continue a hearing in the absence of a defendant, upon being satisfied of his inability to attend court by reason of illness, and he either consented to, or would suffer no prejudice by, such continuance. In terms of this special provision and with the consent of absent defendants, interruption of the trial because of illness of defendants rarely took place after 4th December 1963. On every occasion on which a hearing has been held in the absence of a defendant, the consent of the absent defendant has been given in writing to the hearing being so held. The Court held almost exactly 300 sittings for the purpose of those proceedings. Our findings have been reached in every instance by unanimous decision.

The charges set out in the Information are as follows:-(1) On or about the 27th of January, 1962, at Colombo, Kalutara, Ambalangoda, Galle, Matara, and other places, within the jurisdiction of this Court, the defendants above named with others did conspire to wage war against the Queen and did thereby commit an offence punishable under Section 115 of the Penal Code.

(2) At the time and the places aforesaid and in the course of the same transaction the defendants abovenamed with others did conspire to overawe by means of criminal force or the show of criminal force the Government of Ceylon and did thereby commit an offence punishable under Section 115 of the Penal Code.

(3) At the time and the places aforesaid and in the course of the same transaction the defendants abovenamed with others did conspire to over throw otherwise than by lawful means the Government of Ceylon by law established and did thereby commit an offence punishable under Section 115 of the Penal Code.

Put very briefly, the case which the prosecution set out to prove was that, sometime in January 1962 or thereabouts, some of these defendants conceived a plan to arrest Ministers of the Government, certain

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prominent Leftist politicians, and a few key officials, and, relying on the * military and police power available to them, to replace the then existing Government of the country by some authority not constituted under the then existing law. All the defendants, according to the prosecution, at some stage or other agreed to participate in carrying out that plan. It is also helpful to state at the outset that, according to two of the principal defendants, they did indeed prepare a plan for certain Army and Police action, but only for the purpose of preventing certain other parties from carrying out a " Coup d' Etat ".

Of the defendants, thirteen were at the relevant time members either of the Regular Army or of the Volunteer Force ; of these, the 2nd defendant was Commandant of the Volunteer Force and the 3rd defendant the Deputy Commandant, and the 7th, 13th and 15th defendants were Officers Commanding the 3rd Field Regiment, the Electrical and Mechanical Engineers and the Volunteer Signal Corps respectively.

Six of the defendants were gazetted Police Officers of whom the 4th defendant was at the time the Senior Deputy Inspector-General of Police in charge of Range 1 which included the city of Colombo and the major part of the Western Province ; the 18th defendant was the Superintendent of Police (Crimes), Colombo ; the 19th defendant was an Assistant Superintendent of Police and Principal Assistant of the 4th defendant; the 20th defendant was Assistant Superintendent of Police (Colombo West); the 21st defendant was Superintendent of Police, Southern Province (West), with Headquarters at Galle; the 22nd defendant was Superintendent of Police, Southern Province (East), with Headquarters at Matara.

The 5th defendant had held office until the end of 1960 as Deputy Inspector-General of Police and the 6th defendant had been until 1961 Rear Admiral Commanding the Royal Ceylon Navy. Of the three remaining defendants, the first was a member of the Ceylon Civil Service and Deputy Director, Land Development Department, Colombo, at the time; the 23rd defendant, a planter by profession, was the brother-in-law of the 5th defendant; and the 24th defendant, who was also a planter, was the brother of the 2nd and 6th defendants.

The Attorney-General entered a Nolle Prosequi in respect of the 22nd and 24th defendants on 17th June, 1963. The 23rd defendant was acquitted on 10th June, 1964. The 7th defendant died on 6th August, 1964. The 11th, 16th, 17th and 18th defendants were acquitted on 1st October, 1964. The 10th and 12th defendants were acquitted on 12th March, 1965. The 8th, 9th and 14th defendants were acquitted on 26th March, 1965. Our reasons for these orders of acquittal will be stated later.

Substantially, the prosecution case was that the alleged conspiracy to overthrow the Government was undertaken by a group of high ranking Army and Police officers with the assistance of a retired Deputy Inspector-General of Police and the former Navy Commander, among others.

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The success of the prosecution case depended, somewhat heavily on the evidence of Major Rajapakse, 2nd in command of the Armoured Corps which bad its Headquarters at Rock House Camp in the city of Colombo, and Mr. Stanley Senanayake who was at the time Superintendent of Police Colombo working directly under the 4th defendant. Stanley Senanayake had been between May, 1955 and September, 1960, Director of Training in charge of the Police Training School at Katukurunda and he became Superintendent of Police, Colombo, in November, 1960. In the latter capacity he was in charge of all Police stations in the city of Colombo. He is married to a daughter of Mr. P. de S. Kularatne, who was in January 1962 a Member of Parliament supporting the Government, although not a member of the predominant Sri Lanka Freedom Party.

It is helpful to note at this stage that the responsibility under the Constitution for the administration of both the Army and the Police vested in the Prime Minister the Hon. Sirimavo Bandaranaike and her Parliamentary Secretary the Hon. Felix Dias Bandaranaike who was in addition Minister of Finance, both of whom had commenced to hold office after the General Election of July, 1960, at which the Sri Lanka Freedom Party was returned to power. The permanent head of the Ministry of Defence and External Affairs in January 1962 was Mr. N. Q. Dias, Permanent Secretary. The Army Commander at the time was Major-General Wijekoon. The Inspector-General of Police was Mr. M. W. F. Abeykoon, who had not previously held office in the Police service. The head of the Criminal Investigation Department was Mr. S. A. Dissanayake, Deputy Inspector-Genera of Police, a younger brother of the 4th defendant; but friendly relations did not at the time prevail between the brothers. Frequent references were made in the evidence to these persons, as well as to Mr. John Attygalle, who was then Superintendent of Police, Criminal Investigation Department, and to Lieut. Colonel Udugama who was then Officer Commanding the 1st Sinha Regiment, and temporarily stationed at Jaffna.

The evidence concerning the alleged conspiracy cannot be adequately understood except in the background of events which had occurred in the country during a period of about one year preceding 27th January, 19S2. Some reference to those events is necessary at this stage.

From about February 1961 there had been in the Northern and Eastern Provinces a movement styled " Satyagraha " designed to manifest the opposition by the Tamil-speaking people to the Government's Language Policy. In consequence it was necessary to station Army Units in areas where the movement was being pursued, and a particularly strong Army detachment was stationed in the Jaffna District. After some weeks a State of Emergency was declared, under the Public Security Act, and a number of Tamil leaders were detained in pursuance of the Emergency Regulations on the grounds of security. The Satyagraha virtually ended soon after these detentions. But the leaders were

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kept in custody for some further time. Even after their release in the latter half of 1961, however, the declaration of Emergency was continued and was still in force in January 1962. It was the position for the defence at this Trial, that although Emergency Regulations were no longer necessary after the abatement of the Satyagraha situation, the declaration of Emergency was continued because the Government was under stress owing to difficult economic and labour conditions. One advantage which the Government enjoyed during a State of Emergency was that the Volunteer sections of the Armed Services could remain mobilised and thus expeditiously available for use in strike situations and in the event of civil disturbance. A special device utilised for the first time in 1961 was to place Volunteer Units on compulsory leave without pay. While expenditure was thus saved, the Units remained mobilised and -could be recalled to duty without the delays involved in a new mobilisation.

In October 1961, Mr. Bandaranaike, the Parliamentary Secretary to the Minister of External Affairs, gave an order to the heads of the Armed Services and the Police to prepare an " appreciation " as to the measures necessary to deal with a situation envisaged in data supplied by Mr. Bandaranaike. Among the matters contemplated in the data supplied, was the possibility of a series of strikes in essential undertakings and of Civil disturbance arising from incitement by Leftist and Trade Union Leaders. This order certainly shows that the Government contemplated the utilisation of the Armed Services during contemplated strikes and disturbances.

There was at this stage much agitation for the implementation of two reports affecting wages and conditions of work. One was the P. O. Fernando Committee report concerning Port labour, and the other the Wilmot Perera Report concerning the Public Service. The Government's position was that the financial conditions precluded the possibility of implementing these reports, and it was feared that the failure to implement them would give rise to discontent and possible disturbance.

About the middle of November 1961 there was a Harbour strike which involved a very large number of Port workers in Colombo.

In early December there was a strike of brief duration at some depots of the Ceylon Transport Board. On or about 15th December 1961 Port workers were once again called out on strike, and they continued to be out on strike until after the events of January 1962. In anticipation of this strike and perhaps of probable subsequent strikes, the compulsory leave of the Ceylon Volunteer Force was cancelled on 12th December, and the Volunteer Units quickly reassembled for active service. There were further in December a strike of cinema workers, of Gas Company employees and of Bank employees. There was also a strike of employees of the Standard Oil Company, and the threat of sympathy strikes in the other Oil Companies. On the 30th December Trade Union leaders announced an Island-wide token General Strike

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for the 5th January 1962 in support of demands inter alia for an immediate settlement of the Port Strike and for the implementation of the two reports earlier mentioned. On 4th January 1962, there was a suspicion of sabotage on the part of some Technicians of Radio Ceylon, eight of whom were taken into custody and detention. On 5th January there was a token General Strike affecting workers in the Public Service as well as the workers in the private and public sectors of transport, industry and commerce. In addition to the difficult if not chaotic conditions arising out of these strikes, information available through security channels to the Police and the Army was that an island-wide General Strike, accompanied probably by violence, could be expected towards the end of January 1962. The authorities responsible for security and for the maintenance of essential services in an Emergency were actively preparing to meet the thus contemplated situation. A number of what were termed Operational Orders were prepared to be carried out by different branches of the Armed Services and the Police for the maintenance of essential services and supplies.

That a critical state of affairs was imminent, if not already existing, is obvious. The Army had to be engaged in shifting food cargoes and on picket duties. A censorship was introduced on Press publications of information concerning the strike situation. The Shipping Conferences had imposed a surcharge on freight rates consequent on cargo vessels being inordinately delayed outside the port of Colombo. Trade Unions were restive at the failure of the Government to consider their demands and at the use of the Armed Services for work in the Port. On 13th December 1961 Dr. N. M. Perera, a prominent Opposition and Trade Union leader, in a speech in Parliament accused Mr. Felix Dias Bandaranaike of making arrangements with the Army and Navy to rule the country and to arrest even members on the Government side. On 9th January 1962 Mr. Pieter Keuneman, a Communist leader, warned the country that a situation was developing to create the basis for permanent Military rule in the country. On 12th January 1962 another Opposition leader Dr. W. Dahanayake suggested in Parliament that somebody in the Government was preparing to set up a Military Dictatorship. Similar accusations were made in other public speeches. There was unfortunately a hook on which to hang these allegations. Mr. Felix Dias Bandaranaike had at a meeting some time earlier in reference to conditions in Russia, stated that a little bit of Totalitarianism might be of benefit to Ceylon.

There is some evidence that in Army circles in Ceylon during this period suggestions were in fact being made that one solution of the current difficulties might be some form of arbitrary rule in which the Armed Services would be associated.

The defence position at this Trial had been that Mr. Bandaranaike did in fact intend to set up a Military dictatorship. We do not at this stage propose to consider whether this allegation is true. What is important

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in the present context is that conditions existing and contemplated in January 1962, including the imposition of censorship, the full mobilisation of the Services on security and civil duties, and the public concern, were such as in other countries had in fact given rise to attempts, whether successful or not, to overthrow democratically elected Governments and to establish some form of unconstitutional rule.

Before entering upon a discussion of the facts, we shall state some legal principles by which we are guided in considering the evidence. And first with regard to the ingredient of conspiracy, which is common to all the counts of the information.

The essence of conspiracy is the agreement to do the unlawful acts alleged: but it is not necessary that any act should take place in pursuance of the agreement. Whether a criminal act is done or not, the agreement, and not the act, is what is penalised. " The conspirators may repent and stop; or they may have no opportunity, or may be prevented, or may fail. Nevertheless the crime is complete and was complete when they agreed ", see The Queen v. Aspinall [1 (1876) 2 Q. B. D. 48 at 58. ]

The position of the prosecution has been that in the present case the operation agreed by the conspirators was called off because of certain unexpected events.

Proof of acts committed in pursuance of the agreement is relevant only so far as they furnish evidence from which the prior agreement may legitimately be inferred, see E. v. Mulcahy [2 (1868) 3 H. L. 306.]

There must be proof against each conspirator that he had knowledge of the general purpose of the plot and the common design, though each need not be equally well informed of the details. Agreement, following upon intention, is enough, and is also of the essence of conspiracy.

The evidence in support of an indictment charging conspiracy is generally circumstantial. It is not necessary to prove any direct concert, or even any meeting of the conspirators, as the actual fact of conspiracy may be inferred from the collateral circumstances of the case. Conspiracy can ordinarily be proved only by a mere inference from the subsequent conduct of the parties in committing some over acts which tend so obviously towards the alleged unlawful results as to suggest that they must have arisen from an agreement to bring it about. Upon each of the isolated acts a conjectural interpretation is put, and from the aggregate of these interpretations an inference is drawn.

Thus Coleridge J. said in R. v. Murphy [3 (1837) 173 E. R. 608.] : " You have been properly told that this being a charge of conspiracy, if you are of opinion that the acts, though done, were done without common concert and design between the parties, the present charge cannot be supported. On the other hand, I am bound to tell you, that although the common design is

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the root of the charge, it is not necessary to prove that the parties came together and actually agreed in terms to have this common design, and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing, and neither law nor common sense required that it should be proved. If you find that these persons pursued by their acts the same object, often by the same means, one performing one part of an act, and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, " Had they this common design, and did they pursue it by these common means-the design being unlawful ?" .

But the question is not whether we can draw the inference of conspiracy but whether the facts are such that they cannot fairly admit of any other inference being drawn from them. We have also to be satisfied that there is an irresistible inference that each defendant, before he is found to have conspired, did so conspire. The evidence must show a common plan so as to exclude a reasonable possibility of the acts having been done separately, and connected only by coincidence.

Before we can find any defendant guilty we must be satisfied on evidence that there is one single conspiracy. Each defendant's case must be considered separately to decide if he is a conspirator. Each defendant must be proved to have been a party to the conspiracy, after the evidence affecting him is considered.

As a conspiracy need not be established by proof which actually brings the parties together, but may be shown like any other fact by circumstantial evidence, the detached acts of the different conspirators relative to the main design are admissible as steps to establish the conspiracy itself. The circumstances attending the acts of a conspirator may go to show association with others and, as such, these circumstances are admissible on the issue of conspiracy, see B. v. Miller [1 (1939) A. D. 106. ].

" It is a mistake to say that a conspiracy must be proved before the acts of the alleged conspirators can be given in evidence. It is competent to prove isolated acts as steps by which the conspiracy may be established " -per Alderson B. in Ford v. Elliott and others [2 154 E. R.. 1132.].

The conspirators need not have met and laid their heads together, and then and there agreed to carry out their common purpose. There may be conspirators who have never seen each other and have never corresponded. They may never even have heard of each other, and yet by the law they may be parties to the same common criminal agreement, see The Queen v. Parnell [3 14 Cox C. C. at p. 518.]. What is necessary is that " they entered into an

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agreement with a common design. There may be one person round whom the rest revolve-or a chain of conspirators each communicating only with the one next to him ", see R. v. Meyrick [1 21 Or. App. Rep. 94 at 102.]

Some may concoct or originate the scheme the subject of the charge. Some conspirators may form if, others may join it afterwards. They will be all equally guilty-see H. v. Murphy {ante). There may be different shades of guilt between those who play different parts in a conspiracy. One conspirator may play a part significantly less than the part played by the conspirators in the inner circle.

Secrecy is to some extent an essential of conspiracy. But the acts of a defendant which are unconcealed do not disprove conspiracy. Secrecy is frequently a characteristic, but forms no essential element of the crime.

Once we are satisfied that there is prima facie evidence of the existence of a conspiracy between certain defendants, the acts and declarations of a party to it in carrying out the conspiracy, and done or made before it has been completed, are admissible against the others who were parties to it. This is the principle of law to be found in section 10 of the Evidence Ordinance. But it is clear law that the provisions of Section 10 do not include a statement made by a conspirator, with reference to past acts done in the actual course of the carrying out of the conspiracy, after it has been completed or come to a termination. The conspiracy must be on foot for Section 10 to be applicable.

The Criminal Law (Special Provisions) Act, No. 1 of 1962, contains an unusual provision in Section 12 (2) which reads: " In the case of an offence against the State, a statement made by any person which may be proved under sub-section (1) of this section as against himself may be proved as against any other person jointly charged with such person if, but only if, such statement is corroborated in material particulars by evidence other than a statement proved under that section ". It is not necessary for us to decide what the true meaning of this provision exactly is. The law has always been that a statement made outside the witness box is inadmissible against anyone except the person making it. Even if it is the statement of a fellow conspirator, it will not be admissible except against the person making it if at the time it was made the conspiracy had come to an end. We do not think that the legislature, in enacting Section 12 (2), intended to depart from this salutary rule. In this connection we have in mind particularly the statement P1 59 made by 3rd defendant and the letter P181 written by 4th defendant and statements made by other defendants during the investigation (and other letters written by other defendants after January 27th). We will not use such statements or letters except against those who actually made or wrote them.

With regard to the sworn evidence given by those defendants who entered the witness stand, we are aware that in some prosecutions it is desirable for the triers of fact to direct themselves that although such

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evidence is strictly evidence against their co-defendants it should not be so used. In other instances, it should not be so used without corroboration. Each case has to be treated according to its own facts. This case, having regard to the position adopted by the defendants, falls into a different category from those already mentioned. There is no such thing as a cut-throat defence here, and we consider the evidence of any defendant may be treated in the same way (although with much caution) as that of any other witness who came to the witness stand not from the dock but from the witness room.

The essence of conspiracy is agreement, but that does not mean that, the agreement having been made, the conspiracy does not exist beyond the actual time at which the agreement is born. The conspiracy will persist so long as the conspirators remain in agreement, and so long as they are acting in accord, in furtherance of the objects for which they entered into the agreement-see Abdul Rahman v. Emperor [1 A, I. R. (1935) Cal. 316 at 325. ].

On this and other aspects of this hard-fought trial we remind ourselves of the words of caution spoken by Sankey L. J. in G. Scammell & Nephew Ltd. v. Hurley [2 (1929) I K. B .at 449.]: " Allegations of conspiracy may be pushed too far. Juries, as well as Judges, must endeavour to beware of hard constructions and strained inferences, especially in cases where political passions are to some extent involved."

In Count (1) the next ingredient after conspiracy is: "to wage war against the Queen ". It has been said correctly that there may be a war waged without any design upon the Queen's person. For example, if persons assemble and act with force in opposition to some law which they think inconvenient, hoping thereby to get it repealed. To purpose and design, such action is art offence under Section 115.

The Government stands for the Queen in this country. The Queen is not here in person, though her Government is, and such war is only constructively possible here. The word " Queen " is here used in a figurative sense as meaning the Head of the State, the external embodiment of lawful constitutional Government.

In The King v. Sharkey [3 (1949) 79 Commonwealth Law Reports 121, at p. 135.], Latham C.J. said :-" The Sovereign is part of both the legal and the political constitution of the Commonwealth. Section 1 of the Commonwealth constitution expressly vests the legislative power of the Commonwealth in a Federal Parliament consisting of the King, a Senate and the House of Representatives. The executive power of the Commonwealth is vested in the King, and is exercisable by the Governor-General as the King's representative." The Sovereign's place is stated in our constitution in much the same terms. So that we can, as did Latham C.J., use the words of Dean Roscoe Pound, " The Sovereign is the symbol of an ordered society."

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Archbold (S. 3026) calls levying war " indirect or constructive " where it is levied "for the purpose of effecting innovations of a public and general nature by an armed force e.g. attempting to obtain the repeal of a Statute, or to obtain the redress of any other public grievance, real or pretended."

Lord Mansfield in his charge in Lord George Gordon's case [1 (1781) 21 St. Tr. 485. ] said that there are two kinds of levying war : (1) against the person of the King (2) against the majesty of the King, or, in other words, against him in his regal capacity; " as when a multitude rise and assemble to attain by force and violence any object of a general public nature, and most reasonably so because it tends to dissolve all the bonds of society, to destroy property, and to overturn government; and by force of arms to restrain the King from reigning according to law."

In I East P. C. Chap. 2 Sec. 17 it is said : " Constructive levying of war is in truth more directed against the government than the person of the King ; though in legal construction it is levying war against the King himself. This is when an insurrection is raised . . . for any purpose which usurps the government in matters of a public and general nature or to reform by numbers or an armed force any real or imaginary grievance of a public and general nature, in which the insurgents have no peculiar interest." Insurrections of this nature are an attack upon the King's legal office and tend to dissolve all Government, society and order.

A plot to wage war, even if the conspirators lack the power to wage war, is an offence under the section. To constitute a levying (or waging) of war against the King it is not necessary that there should be a regular trained force or a regular army. "It is neither the number engaged, nor the force employed, nor the species of weapons with which they may be armed, that will constitute the overt act of treason .... it is the purpose and intention, the object which they have in view, which congregates and assembles them together, which gives them the impulse in their arming and in their rising, it is that which constitutes treason and distinguishes the crime from that of riot or any other rising for any private purpose that can be imagined "-per Lord President Hope in R. v. Hardie [2 (1820) 1 St. Tr. (NS) 765.].

The pomp and pageantry of war are not necessary, nor military array. " Insurrection and rebellion are more humble in their first infancy; but all such external marks of pomp will not fail to be added with the, first gleam of success And the law is positive that if a rising and insurrection be for a public purpose, to resist the King's authority, to compel him to do or to refrain from doing what it is part of his prerogative to do or not to do as he thinks proper, if it be to compel him to change his measures and councils, it amounts to treason "-per Tindal C.J. in B. v. Frost [3 (1839) 9 .C. & P. 129.]. There must be an insurrection against

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the State or its measures, which must be manifested by the generality of the design, not merely with the object of redressing a private wrong or procuring some private advantage, e.g., riots between two factions. There can be no waging of war when the attack is personal and particular, and not general and subversive of the State or its authority. " To constitute high treason by levying war there must be an insurrection, there must be force accompanying that insurrection, and it must be for the accomplishment of an object of a general nature," see R. v. Frost [1 (1839) 9 0. & P. 129. ].

Every insurrection to compel Her Majesty to alter her Government amounts to levying war. Though not levelled against the person of Her Majesty, they are against her royal majesty and have a direct tendency to dissolve all the bonds of society, and destroy a Government by an armed force. Insurrections for redressing national grievances, or for reforming real or imaginary evils of a public nature, and in which the insurgents have no special interest are by construction of law " levying war " for they are levelled at the Queen's crown and royal dignity.

It is not necessary to consider the English Law regarding the necessity for overt acts. The explanation to our Section 115 says there need be no act or illegal omission to make the conspiracy an offence. Mere agreement to do any of the specified illegal acts is enough, though acts or illegal omissions which are established will support the case of the existence of the conspiracy.

Count (2) requires proof that the conspiracy was to " overawe by means of criminal force or the show of criminal force the Government of Ceylon." " The word ' overawe ' imports more than the creation of apprehension or alarm or even perhaps fear. It appears to connote the creation of a situation in which the members of the Central or the Provincial Government feel themselves compelled to choose between yielding to force or exposing themselves or members of the public to a very serious danger. It is not necessary that the danger should be a danger of assassination or of bodily injury to themselves. The danger might well be a danger to public property or to the safety of members of the general public "--per Shearer J., in Mir Hasan Khan v. The State [2 (1951) Patna 60 at 65.].

To overawe by means of force or the show of criminal force the Government of Ceylon means that the force to be used or shown would put the Government in awe, so that it feared to do that which it had a mind and will to do, and which the law empowered it to do, or that it was compelled to do that which it would not otherwise have done or which Was contrary to law.

Under Count (3) the conspiracy must be proved to be to " overthrow otherwise than by lawful means the Government of Ceylon by law established". Everyone knows that a Government by law established can be overthrown, in the sense of being defeated and displaced, by

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constitutional means. The obvious cases are the defeat of the Government in power by a motion passed in Parliament or at a general election. They result in an overthrow by lawful means, and are perfectly constitutional.

The gist of the offence in count (3) is that the conspiracy was to overthrow the Government in power by unlawful means, that is to say, means other than those provided in the Constitution. The words used in the count could comprehend an overthrow brought about by inducements or threats or promises offered to, or compulsion used on, the Governor-General or the Prime Minister or members of the Cabinet in order to cause them to resign or to be deprived of their respective offices. The unlawful ways of bringing about an overthrow of the Government are numerous, and the Crown in this count has to satisfy us that there was a conspiracy formed with the object of overthrowing or deposing the Government, and that such an object was to be effected by unlawful means.

We have to consider in this context an argument presented by Mr. H. W. Jayewardene that the term " Government of Ceylon " in Section 115 of the Penal Code does not include the Cabinet of Ministers and a fortiori does not include any one Minister. In effect, he argued that a conspiracy to depose the Cabinet or any one Minister by unlawful means is not one to overthrow the Government of Ceylon. It would follow upon the same argument that to overawe the Governor-General with the object of compelling him to depose the Cabinet or a Minister is not to overthrow the Government.

Section 14 of the Penal Code defines " the Government of Ceylon " as " Her Majesty's Government in Ceylon established under the Ceylon ( Constitution and Independence) Orders in Council 1947 and 1948 ". The argument was that the Government as so established is the Legislature (that is Her Majesty, the Senate and the House of Representatives), the Executive, and the Judicature, and that the Executive is in effect the Queen or the Governor-General by virtue of Section 45 of the Order in Council of 1947 :-

Section 45. " The executive power of the Island shall continue vested in Her Majesty and may be exercised, on behalf of Her Majesty, by the Governor-General in accordance with the provisions of this Order and of any other law for the time being in force."

This argument ignores the effect of Section 46 of the same Order in Council:-

Section 46 (1). " There shall be a Cabinet of Ministers who shall be appointed by the Govern or-General and who shall be charged with the general direction and control of the government of the Island who shall be collectively responsible to Parliament."

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Section 46 (1) clearly assigns executive power to the Cabinet of Ministers when it charges the Cabinet with the general direction and control of the government of the Island, and it is equally clear to us that the collective responsibility of the Cabinet is responsibility for the direction and control of the government of the Island. That being so, it is evident that the Cabinet governs, and is accordingly at the least an arm of the government established under our Constitution. If, because of Section 45, it must be held that the Governor-General has executive power as the representative of Her Majesty, the Cabinet nevertheless has a part in the exercise of that power itself. The constitutional conventions applicable to the exercise of the Governor-General's powers (Section 4 (2)) require him to act on the advice of the Cabinet or of an individual Minister himself responsible to the Cabinet. When therefore the Governor-General exercises executive power it is in effect the Cabinet that governs through the Governor-General. Upon these considerations, we have no difficulty in concluding that the Government established under the Constitution consists of the Governor-General acting on behalf of Her Majesty, and the Cabinet.

Sir Ivor Jennings commenced his work " Cabinet Government" with two sentences. " The Cabinet is the core of the British Parliamentary System. It is the supreme directing authority."

It is helpful in this connection to examine the history of the definition in Section 14 of the Penal Code. Prior to 1948, Section 14 defined " the Government of Ceylon " to be " the person or the persons authorised by law to administer executive government in the Island." That definition was replaced in 1948 by the present definition. The replacement was effected by a Proclamation of the Governor-General under Section 8 of the Independence Order in Council of 1948. The power conferred by Section 8 was for the Governor-General to " make such provision as he is satisfied is necessary or expedient for bringing any written law into accord with the provisions " of the Constitution and Independence Orders of 1947 and 1948. It seems to us that it was scarcely necessary to bring the former definition into accord with the new Constitutional enactments, for it would not have been difficult to decide who are the person or persons authorised by those enactments to administer executive government. They are the same persons the Governor-General and the Cabinet - who according to the new definition: constitute " the Government of Ceylon established under the Orders in Council". Mr. Jayewardene's suggestion, that the new definition framed in 1948 brought both the Legislature and the Judiciary within the connotation of the term " Government " in the Penal Code, involves the proposition that in 1948 the Governor-General virtually created new offences under Chapter VI of the Penal Code. We cannot agree that in framing the new definition of " the Government " the Governor-General acted in that way in excess of the powers which Section 8 of the Independence Order conferred on him.

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Mr. Kannangara anticipated to some extent the argument presented by Mr. Jayewardene. He referred to the definition of the " Government" in the Interpretation Ordinance as meaning the Cabinet of Ministers, and pointed out that by Section 3 (4) of the Constitution Order in Council, 1947, the definition was expressly excluded from application for the purpose of the interpretation of the Constitution. On this ground he argued that the Government established under the Constitution is not the Cabinet of Ministers. But it will be seen that the exclusion of that definition was necessary for quite different reasons. The word " Government " occurs in the Constitution in three contexts :-

(1) " the officer administering the Government " in the absence of the Governor-General - (Section 5).

(2) " in respect of the Government of the Island ". (definition of public officer in Section 3 ; disqualification arising from the holding of Government contracts in Section 13 ; public office in Section 57 and in Section 64);

(3) " departments of Governments " in Section 51.

In all these three instances, the word " Government " occurs in a context where quite obviously the word was not intended to refer to the Cabinet of Ministers. The definition in the Interpretation Ordinance had therefore to be excluded, as a matter of precaution, in order to avoid confusion. In fact, the expression " the Government " as a reference to persons exercising executive power does not occur anywhere in the Constitution.

Mr. Jayewardene urged that if the executive power is not held to be solely the power vested in the Governor-General by Section 45 of the 1947 Order in Council, it must also be held that the Permanent Secretaries (for whose appointment there is provision in Section 49) who do exercise executive power, will also have to be regarded for the purposes of Chapter VI of the Penal Code as part of " the Government" in respect of which An offence under Section 115 or Section 120 of the Code can be committed. Indeed, this reasoning can be pursued even further, for there are several Heads of Government Departments and numerous minor officials who enjoy executive power under various statutes. But neither are these officials, nor are the Permanent Secretaries, vested with any executive power under the Constitution. The only vesting of executive power mentioned in the Constitution is that of the Governor-General referred to in Section 45 (which as stated earlier is controlled by the Cabinet), and that of the Cabinet referred to in Section 46 (1). We therefore see no great difficulty in drawing the line of demarcation between the Governor-General and the Cabinet, who have executive power under the Constitution, and others who enjoy executive power under laws other than the Constitution.

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For the purposes of this case, it is sufficient to state our opinion that a plan, having as its object the deposition of the Cabinet duly appointed for the time being under the Constitution, or the coercion or the compulsion of the Governor-General or the Prime Minister to exercise executive power without the Cabinet so established, and/or with Parliament being dissolved by the Governor-General involuntarily, would be a plan to overthrow the Government. Such a plan would be punishable under Section 115 of the Penal Code if the contemplated means by which its object is expected to be achieved are unlawful, e.g. :-

(a) by unlawful arrests, or even the unlawful arrest of one Minister, and/or

(b) by a legally unauthorised show or threat of force.

If the contemplated means constitute in fact overawing the Governor-General, the Prime Minister or the Cabinet for an object just mentioned, the plan would become punishable on that score as well.

The authors of the Penal Code had this interesting passage in their report: " the rebel is out of danger " (unlike the murderer and the thief) '' as soon as he has subverted the Government. As the penal law is impotent against a successful rebel, it is consequently necessary that it should be made strong and sharp against the first beginnings of rebellion, against treasonable designs which have been carried no further than plots and preparations." " Those who conspire against the constituted Government connect in their sanguine hope the assurance of impunity with the execution of their crime, and would justly deride the mockery of an accusation which could only be preferred against them when their banners were unfurled and their force arrayed. It is as reasonable, therefore, as it is conformable to the usages of every country, to place conspiracies against the sovereign power upon the footing of actual rebellion, and to crush those by the penalities of treason who, were the law to wait for their opportunity, might silence or pervert the law itself - per Willes J. in Mulcahy v. The Queen [1 (1888) 3 H. L. 306 at 321.].

There cannot be, strictly speaking, direct evidence of the inception of a conspiracy if any of the conspirators themselves do not choose to speak to the same. That (1) a conspiracy did exist and (2) the defendants were members of the conspiracy, was sought to be established, among other means, by the evidence of accomplices, as well as the evidence of independent persons.

In the case of accomplices, we have borne in mind the established practice, virtually equivalent to a rule of law, which requires independent corroboration of their evidence, in material particulars, and ' qua ' each defendant. Independent corroboration need not cover the whole prosecution story, or even all the material particulars. The nature and extent of corroboration required by the rule of prudence must, from the

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very nature of things, vary with the circumstances of each case. What is required is some additional evidence, direct or circumstantial, rendering it probable that the accomplice's story is true and reasonably safe to act upon, and connecting or tending to connect the particular defendant with the offence.

At the same time we realize that regard must be had to the nature of the offence and the case or difficulty which may be expected in obtaining independent corroboration. We know that in the case of a secret conspiracy the difficulty must be very great, and that it is practically impossible for anyone to speak to the exact nature of the conspiracy, or the identity of the conspirators, with any degree of certainty, without being himself to some extent an accomplice. " To decide what the object of the conspirators was and how exactly they hoped or intended to effect it, we are compelled to rely on what they or their dupes actually did."-per Shearer J. Mir Hasan Khan v. The State[1 A. I. R. (1951) Patna 60. ].

We have not forgotten that some of the prosecution witnesses who are obviously accomplices were giving evidence under a conditional pardon, " with halters round their necks ", and with a natural inducement to earn it. Is their evidence to be forthwith struck out or disregarded ? Or is it to be considered carefully, even cautiously, and only accepted when it is corroborated and found to be convincing ? We have chosen the latter course. The evidence of fellow conspirators or accomplices is of course tainted and suspect, especially when they admit their own complicity. But it is not usual for a prosecution for conspiracy to be instituted without the evidence of one or more persons who have, at one time or another, been parties to the conspiracy.

The degree of suspicion which will attach to an accomplice's evidence must vary according to the extent and nature of the complicity. Sometimes the accomplice is not a willing participant in the offence but a victim of it. Sometimes the accomplice acts under a form of pressure which it would have required some firmness to resist, as for instance when he is a subordinate Police officer who receives orders from his superior in the Force and finds it difficult to disobey such orders. The explanations to Section 114, Evidence Ordinance, show that " the force of the presumption to be drawn (against the evidence of an accomplice) varies as the malice to be imputed to the deponent." Whatever attenuates the wickedness of the accomplice tends at the same time to diminish the presumption that he will not acknowledge and confess it with sincerity and truth. The corroboration necessary to establish his credit will be less than if his complicity in the offence had been voluntary and spontaneous. See Muhammed Panah v. Emperor [2 A. I. R. (1934) Sind 78 at 81.].

In considering whether an accomplice's evidence is worthy of credit or not, we have acted upon the principle enunciated by the Supreme Court of India in The State of Andra Pradesh v. Cheemalapati Ganeswara

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Rao [ A. l. R. (1963) S. C. 1850 at 1872. ] , While it must be shown that the approver is a witness of truth, the evidence adduced in a case cannot be considered in compartments, and even for judging the credibility of an approver the evidence led to corroborate him in material particulars would be relevant for consideration. " The Supreme Court did not approve of an earlier decision in Sarwan Singh v. State of Punjab [2 A. I. R. (1957) S. C. 637.], which had held that: " Before the Court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first question to consider is whether even as an accomplice the approver is a reliable witness. If the answer is against the approver, there is an end of the matter and no question of corroboration falls to be considered. In other words, the appreciation of the approver's evidence has to satisfy a double test."

We think it is wrong, see State of Bombay v. Harnam Singh [3 A, I. R, (1961) S. C.1762 at 1779.], to treat the evidence of an accomplice and the corroborating pieces of evidence in two different compartments. In other words, the reliability of the accomplice's evidence should not be judged apart from the evidence led to corroborate him.

Considering the mass of evidence which has been led at this trial and the very numerous matters involved, we find it inconvenient to set out the events spoken to by the prosecution witnesses in chronological order. A large part of the prosecution evidence related to the activities of the 3rd and 4th defendants, while also the more important part of the evidence called by the defence was that given by these same two defendants. Accordingly, we shall attempt, as far as possible, to discuss first the evidence which relates mainly to these two defendants. While doing so, we will find it necessary with regard to certain topics to anticipate conclusions thereon which are founded upon fuller consideration given to these topics at later stages of this judgment.

Lieut. Col. Abeysinghe, Officer Commanding the Ordnance Corps, said that about 2 weeks prior to 27th January 1962-it was on a non-working day-3rd defendant came to his office at Ceylon Army Ordnance Corps Headquarters, which is near Army Headquarters, and asked to see the ammunition magazines of which there are three behind Army Headquarters. He gave no reason, but Abeysinghe showed him round because 3rd defendant was a senior officer. Some days later 3rd defendant came again on a working day, and he showed 3rd defendant and Lieut. Col. Alwis, who accompanied him, the magazines.

The two visits are admitted by 3rd defendant who said that they took place on 19th and 22nd January. 3rd defendant said that he was really interested in seeing the lecture and office rooms and the living quarters attached to the Ceylon Army Ordnance Corps Headquarters because the 4th defendant wanted him to find accommodation for 20 to 30 persons. This request by the 4th defendant to 3rd defendant is admitted by the former, and it is referred to elsewhere in this judgment.

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Abeysinghe said that on 23rd or 24th January, 2nd defendant summoned him by telephone to his office. When Abeysinghe arrived there, he found 3rd defendant also present. 2nd defendant told him that they were expecting serious trouble in the country and a serious strike about the 29th January which would cripple the country, and that there was a task for him " which would be endorsed right from the top ". He was to stay at Army Headquarters and execute some orders which were " coming right from the top "-and he understood the reference to be to the Governor-General as Commander-in-Chief. When he asked " What about the Army Commander ?" he was told that he would come into it later.

2nd defendant told him that his task was to stay at the Army Head-quarters gate ; certain prisoners would be brought there by the Police; a police officer would identify the escort, and Abeysinghe's task was to put the prisoners in his magazine. He agreed, because the order came from a senior officer. 2nd defendant was (as an Emergency was then on) virtually the second in command after the Army Commander. According to Abeysinghe, 3rd defendant who was also present started a long conversation regarding bis fears of Mr. Bandaranaike taking over the country in case it was paralysed, describing it as a completely unconstitutional step which the latter might take. 3rd defendant appeared to be very-worried about this, and said that in that case he would leave no stone unturned to do everything possible to stop it, but that in the first instance he would see the Governor-General and any action he took would have the Governor-General's approval.

2nd defendant told him that if the operation was coming through, he would be contacted by a police officer and he would have to act according to the instructions the police officer had received. In fact Abeysinghe said that on the 27th morning 4th defendant telephoned to him to go and see Arndt (S. P. Police Headquarters) at the latter's house, and Abeysinghe asked 4th defendant if it was in connection with what 2nd defendant had told him. Arndt and Abeysinghe eventually met at Abeysinghe's flat at midnight on the 27th.

Abeysinghe gave evidence after he had accepted a conditional pardon. He said that 2nd defendant never used the word " coup " in describing the operation. Crown Counsel confronted him with a passage (P 158) in his statement which A. S. P. Selvaratnam recorded on 28th January. It reads : " About 4 days ago Col. de Mel rang me up and asked me to come and see him. He spoke to me and said that they were planning a coup and it was coming from the top and the impression I got was that it had originated from Queen's House and that the General could be brought into it at the last moment." Abeysinghe denied that he used the words " planning a coup ", but we see no reason to think that Mr. Selvaratnam recorded words such as these which were not uttered. Abeysinghe also said that he remembers quite distinctly telling Mr. Sam P. C. Fernando that it was not a coup, and that if it was he would not

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have participated in one. We might refer to another passage (P 144B) in Abeysinghe's statement of 3rd February, in which he said that he connected an issue order for Stirling machine guns about which 2nd defendant rang him up on the 27th January morning with the " impending coup " for that night.

It is clear to us that Abeysinghe has in giving evidence shifted from the position he had taken up when he made his statements at Temple Trees, and we are satisfied that he has done so in order to assist the 2nd and 3rd defendants. He has signed his statements, and we consider that he was satisfied that they were accurately recorded. The previous statements do not, of course, prove the truth of what appears in them, but they help to assess Abeysinghe's credibility.

Abeysinghe has admitted that he had never told anybody, prior to giving evidence, that 3rd defendant said he was anticipating something in the nature of a coup by Mr. Bandaranaike, and that he was apprehensive about it. Naturally the failure to mention this very significant matter needed explanation. Abeysinghe's explanation is that at about 10.15 a.m. on 28th January at Temple Trees, before his statement was recorded, 3rd defendant told him : " Whatever you say do not disclose that I was after F. D. B " ; and again, that after 3rd defendant had gone into the interrogation room and come out, he told him that Mr. Bandaranaike was in absolute control, adding " Remember what I told you."

There is one important fact which must be mentioned here. Abeysinghe had, in the course of his interrogation, asked to see the Army Commander and spoken to him alone. It is clear from General Wijekoon's evidence that Abeysinghe did not mention Mr. Bandaranaike's suspected coup even to him. Abeysinghe's explanation for the strange omission of this fact, which he claimed had been disclosed to him by 3rd defendant prior to 27th January, is unacceptable. We are of the view that Abeysinghe has deliberately altered his version in order to assist the 2nd and 3rd defendants, and that the additional matter he mentioned at the trial viz. that 3rd defendant told him that he feared that Felix Dias Bandaranaike would take over the country, was never in fact told him. Abeysinghe struck us as a witness who would not implicate 2nd or 3rd defendants falsely. He was ready to help them, and to help himself, by toning down the parts they and he played.

We have carefully considered 3rd defendant's evidence that he and 2nd defendant sent for Abeysinghe on 25th January and told him that Mr. Bandaranaike was trying to seize power and become a dictator. 3rd defendant said that he told Abeysinghe that his plan was to go to the Governor-General at the earliest opportunity ; and that when Abeysinghe asked about the Army Commander, he told him that the Army Commander would be brought in at the earliest opportunity. He also said that Abeysinghe agreed to the building behind his Headquarters being used to keep certain persons: this is, in our view, true.

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Major Rajapakse, Second in Command of the Armoured Corps, has spoken to certain incidents -which he said took place on the night of 26th January. He was invited by 14th defendant to dine with him at his flat, and he was driven there from the Y. M. C. A. by 14th defendant. He met 14th defendant's wife, 9th defendant and his wife, and Vandendriesen and his wife there. After 9th defendant and Vandendriesen left the-flat with their wives, 14th defendant also went out at about 11 p.m. before dinner and 14th defendant's wife gave Rajapakse dinner. Rajapakse's recollection about the details of the dinner was extremely vague; both on 29th January and 21st February he had said that he and 14th defendant dined together in the flat at about 11 p.m. He said that 14th. defendant returned to the flat about midnight, and told Rajapakse that 3rd defendant was downstairs and wished to see him.

Rajapakse said that he then went down and met 3rd defendant who was sitting in 9th defendant's car with 9th defendant at the driving wheel. Rajapakse and 14th defendant sat in the rear seat. The car was driven down to the end of Melbourne Avenue where they all got out. Rajapakse and 3rd defendant sat on the rocks on the beach, while 9th defendant and 14th defendant stood near them. 3rd defendant spoke to Rajapakse in the same strain as 1st defendant had done on the 11th right, referring to the country being on the brink of disaster, the possibility of the Communists getting control, the duty of patriotic persons to prevent this ; and he eventually said that he wanted to overthrow the S. L. F. P. Government.

He then asked Rajapakse if he would join. He said that it would be a popular Government by well known people and not a military Government ; there would be no blood-shed, and he would confront the Governor-General and persuade him to accept a change of Government. Rajapakse said that he agreed to join 3rd defendant if he was given all the details, and 3rd defendant told him that he would arrange for 9th defendant to see him at 2 p.m. next day, and he would be briefed fully. 3rd defendant impressed on him the necessity for secrecy.

They then drove to 3rd defendant's house where 3rd defendant was dropped; from there to 14th defendant's flat; and ultimately to Rajapakse's flat where the others left him and drove off.

3rd defendant's evidence is that he did meet Rajapakse that night. He said that 9th defendant telephoned to him when he was at the Sinhalese Sports Club at about 10 p.m. and Rajapakse then spoke on the telephone to him and asked him to come to 9th defendant's flat as he had something urgent and important to tell him.

3rd defendant said that he then went near 9th defendant's flat and met Rajapakse and 9th defendant there. 9th defendant went off, and 3rd defendant and Rajapakse walked to the beach and back. During that walk Rajapakse told him that Lieut. Col. Attygalle had told him

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that certain drastic steps would be taken in a few days regarding the strikes ; that Mr. Bandaranaike was the strong man in the Government; that Rajapakse had heard at the Y. M. C. A. that evening that whichever way the Industrial Court judgment went next day, there would be serious repercussions ; that Rajapakse was very concerned lest the Army would be used for some illegal purpose, and expected 3rd defendant to do something to prevent it, and agreed to back 3rd defendant wholeheartedly in anything he did and to keep 3rd defendant informed of any news he got.

Vandendriesen has spoken to being at 14th defendant's flat that night from about 8 p.m. for about 2 or 3 hours. He was definite that Rajapakse and 9th defendant left the flat and that 9th defendant came back first and Rajapakse later. At about 11 p.m. he, 9th defendant, 14th defendant and Rajapakse went downstairs together, and the other three went out to dine together while he went home. There is a marked divergence between the versions of Rajapakse and Vandendriesen, and we have remembered that divergence in deciding what actually happened.

Rajapakse and 3rd defendant have thus given conflicting versions of their conversation that night. 3rd defendant's position was that Rajapakse was looking to him to lead a movement to prevent the Army being used illegally by Mr. Bandaranaike, while Rajapakse said that his support was being canvassed by 3rd defendant along with 9th defendant and 14th defendant to overthrow the Government.

The 3rd defendant's version is that when the meeting did take place at Rajapakse's request, the latter spoke of information given by Colonel Attygalle of some drastic action by Mr. Bandaranaike in support of which the Army might be used. The 3rd defendant himself was quite surprised that Rajapakse should have thought fit to confide in him about a matter which implicated Mr. Bandaranaike and Colonel Attygalle. If, as the 3rd defendant himself says, he was thus surprised to find himself the confidant of Rajapakse, there is involved an admission that it was at least peculiar that Rajapakse should confide in him. We note also the coincidence (and there are many matters which on the defence version in this case we have to accept as mere coincidences) that Rajapakse on 26th, January chose to reveal his suspicions of Mr. Bandaranaike to the same person to whom the 4th defendant decided to reveal similar suspicions earlier that month.

If there is any truth in the evidence of the 3rd defendant that Rajapakse did disclose to him, some suspicious information derived from Attygalle concerning Mr. Bandaranaike, Rajapakse must have possessed that information from the morning of 26th January, if not earlier. Nevertheless, on this version itself, Rajapakse contacted the 3rd defendant at a very late hour on the 26th, and even then only with White's assistance in putting through a telephone call to the 3rd defendant, and at a time when he was Major Joseph's invited guest at an innocuous drinks

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party. In the absence of any evidence from White and Joseph, it is not easy for us to understand how it was that Rajapakse at length decided to confide in the 3rd defendant, and why it was that he reached that decision after spending some hours in the company of White and Joseph.

We have Colonel Attygalle's denial that he communicated to Rajapakse any information that Mr. Bandaranaike intended to use the Army in support of some " drastic action ". The cross-examination of Attygalle and Rajapakse satisfied us that relations between these two officers were in fact not cordial. For that reason, we doubt whether Attygalle would have revealed to Rajapakse any secret plans of Mr. Bandaranaike, even if any such plans were known to Attygalle. Our acceptance of Attygalle's denial on this point together with the considerations adverted to above, necessarily involve our rejection of the 3rd defendant's account of his meeting with Rajapakse. Even if we must treat Rajapakse as an accomplice and therefore not act on his uncorroborated evidence concerning what the 3rd defendant said at this admitted meeting, we have yet to reject the 3rd defendant's evidence that the meeting was arranged by Rajapakse, and that Rajapakse then disclosed some suspicious information concerning Mr. Bandaranaike.

The rejection of the 3rd defendant's evidence concerning this meeting with Rajapakse has important consequences. The alleged disclosure said to have been then made by Rajapakse was the first (and only) intimation the 3rd defendant claimed to have had regarding the " sounding " of Army officers in support of Mr. Bandaranaike's alleged plan. If as we hold Rajapakse made no such disclosure, we must hold also that the 3rd defendant's suspicion that the Army might be used on the 27th by Mr. Bandaranaike was not based on any information indicating any actual preparation to use the Army for such a purpose. The rejection of this part of the 3rd defendant's evidence means also that there remains no innocent explanation for the meeting with Rajapakse which took place in quite suspicious circumstances.

There is a mass of evidence which established that on the 27th morning:-

(1) Major Chapman, Staff Officer, Army Headquarters, telephoned to Lieut. Col. de Alwis of the 2nd Volunteer Field-Plant Regiment and informed him that 2nd defendant had agreed to allocate 12 Stirlings in place of 12 Stens to that Regiment, and wanted Alwis to indent for them that day. Chapman said that he did so because 2nd defendant told him that morning that he had arranged for 12 Stirlings to be issued to the Regiment because Alwis had repeatedly asked for them, and an exchange of Stirlings for Stens had also been arranged.

(2) Alwis asked Capt. Wijesinghe, his Adjutant, to indent for the 12 Stirlings and also told him to bring the ammunition up to scale.

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(3) The Adjutant got the necessary documents relating to the Stirlings and the ammunition prepared ; he signed them, and they were sent on to Alwis marked " Top priority " because Alwis had shown that the issue should be made promptly.

(4) Alwis handed the documents to Chapman who gave them to 2nd defendant.

(5) After Abeysinghe received a telephone call from 2nd defendant, he asked Major Ebert of the Ceylon Army Ordnance Corps to make the issue.

(6) That afternoon Capt. Wijesinghe went to collect the 12 Stirlings and the ammunition. As there was no ' G' Branch authority endorsed on the documents, Ebert telephoned 3rd defendant; the latter said that the issue could be made, and he would get 2nd defendant to obtain covering authority on the 29th. 3rd defendant does not deny that he told Ebert this.

(7) Ebert authorised the issue of the guns and ammunition, and Capt. Wijesinghe collected the 12 Stirlings, 30 magazines, and 1,440 rounds of ammunition. Ebert said that the accessories, such as magazines and slings are normally issued from Panagoda, but in this case the unusual course had been taken of getting the magazines and slings brought from Panagoda to the Armoury at Colombo. This was the result of Abeysinghe's telephone call to Major Perera who was in charge of the Ordnance Depot, Panagoda. to send 45 magazines and slings for Stirlings to Colombo.

(8) The 12 Stens were not returned on the 27th.

(9) Another 2 Stirlings, the issue of which to the same Regiment had been authorised much earlier, were also collected on the 27th morning by Capt. Wijesinghe, though no magazines or fillers were received in respect of them.

(10) The 12 Stirlings were covered with grease when they were issued to the Adjutant, and they were in that same condition even on the 29th January when they were taken back to Ordnance on the ground that the Regiment was not entitled to receive more than 2 Stirlings.

It is of some significance that there should have been initiated by 2nd defendant on the 27th January morning all these extraordinary measures to obtain for de Alwis' Regiment these 12 Stirling guns. De Alwis has said, and there is no doubt about it, that the issue was made unusually quickly. He could not assign any reason for such .peed, and it was only because 2nd defendant wanted it done that way that the issue was made so quickly.

It is true that Alwis had earlier asked for Stirlings to replace the Stens which had been issued to his Regiment, and 2nd defendant was aware of this request. But that does not seem to be a satisfactory explanation of

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the hurry and the unusual steps taken in this matter on the 27th, especially as it is apparent that 2 Stirlings which had been allotted 1o Alwis' Regiment much earlier had not been collected by the 27th. The issue of these 12 Stirlings was, in our view, a part of the plan to which 2nd and 3rd defendants were parties.

There is evidence of a meeting at the house of the 15th defendant at Elibank Road, Havelock Town, at about 7.30 p.m. at which, according to Major Rajapakse, the following persons were present:-2nd defendant, 3rd defendant, 6th defendant, 7th defendant, 8th defendant, 9th defendant, 10th defendant, 11th defendant, 12th defendant, 13th defendant, 14th defendant, 15th defendant, 17th defendant, Lt. Col. Abeysinghe, Lt. Col. de Alwis and himself (see list P.45). It will be seen that they were all Army Officers, except for the 6th defendant.

Rajapakse said that earlier that evening he had been taken by 14th defendant in the latter's car from Prince Vijaya Quay to Rajapakse's flat. There Rajapakse changed from his uniform into civil clothes, and they went to 14th defendant's flat, which they reached about 7 p.m. 8th defendant came to the flat and drove Rajapakse and 14th defendant in his car to 8th defendant's house in Dickman's Lane, where they met 7th defendant. All four of them then went together to 15th defendant's house where the others already mentioned had assembled.

While Rajapakse's evidence is that 14th defendant told him that'' he " (which Rajapakse understood to refer to 3rd defendant) wanted to see Rajapakse at 7 p.m., the evidence of 3rd defendant is that Rajapakse telephoned to him at about 12.30 p.m. and informed him of the Armoured Corps going to the Port; he then told Rajapakse to come to 15th defendant's house at about 7 p.m. and when Rajapakse asked if he might bring 14th defendant, 3rd defendant agreed.

According to Rajapakse, 2nd defendant or 3rd defendant remarked about the D. I. G., C. I. D. and S. P., C. I. D. having been seen leaving Stanley Senanayake's house, and the Governor-General having been seen going towards Mount Lavinia. The former remark was, according to 4th defendant, information which Stanley Senanayake gave him when he met Senanayake that evening at the Conference. It could well have reached 3rd defendant if 4th defendant, as we think, met him at "Homelea" before the Elibank Road meeting. Rajapakse also said that somebody made a remark about 5th defendant, which he did not hear clearly but which 14th defendant said was a remark that 5th defendant had gone round the outstation police stations to get support. Before those present dispersed, 3rd defendant informed them that they should meet at Kinross Avenue at 8.30 p.m.

3rd defendant in evidence said that it was he who fixed the meeting at 15th defendant's house, and that house was selected by him because 15th defendant happened to telephone to him when he and the 2nd defendant were discussing where they should meet the Army officers

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whom they wanted to alert about Mr. Bandaranaike possibly attempting to seize power and become a dictator. 3rd defendant also said that it was he who telephoned to 7th defendant that afternoon and asked him to bring his junior officers 8th, 9th, 10th, 11th and 12th defendants to Elibank Road that night. He said that it was he who rang most of the officers that afternoon, and he took the responsibility for calling the meeting of officers at Elibank Road. 3rd defendant said that he did not see 6th defendant, 9th defendant, 10th defendant, 11th defendant or 12th defendant there; he did not hear any reference to the 5th defendant or to the D. I. G., C. I. D. or S. P., C. I. D. leaving Stanley Senanayake's house. He said that when 7th defendant and 8th defendant told him that they had some wireless test fixed for 7.30 or 8 p.m., he asked then to cancel it or to ask somebody else to carry on without them, as he wanted them at Kinross Avenue.

Lt. Col. Abeysinghe who was at the Elibank Road meeting said that he went there because 2nd defendant telephoned to him at about 3 p.m. to come there. He saw 9th defendant and 10th defendant there- although 3rd defendant said that he did not see them-but he did not see 6th defendant. Even as regards 11th defendant and 12th defendant, whom 3rd defendant said he did not see at Elibank Road, we have the evidence of witness Gnanaratnam, the driver who said that he drove 10, 11 and 12th defendants to 9th defendant's flat that evening where he dropped them prior to returning to Echelon Square at 6.55 p.m. It is not unlikely that 11th defendant and 12th defendant went to 9th defendant's flat with 10th defendant because they had a meeting to attend together later.

Lieut. Col. de Alwis also went to 15th defendant's house at 7 p.m. because 2nd defendant telephoned to him to come there. He said he saw 2nd, 3rd, 13th and 15th defendants, Abeysinghe and Rajapakse there. He did not remember seeing any others there.

Both Abeysinghe and Alwis said that 3rd defendant asked them to meet him again at Kinross Avenue at 8.30 p.m. He gave them no information as to why they had been asked to come to Elibank Road.

We now continue the prosecution story of that night's events. As requested by 3rd defendant at Elibank Road another gathering of officers took place again at the end of Kinross Avenue by the railway line.

There are, as one would expect, different versions of who was seen there, at what times they came, what was said, and by whom. The chief prosecution witness about this meeting is Rajapakse who said that he went there with 7th defendant, 8th defendant and 14th defendant from 8th defendant's house in 8th defendant's car at about 8.30 p.m. He also said that all those who had been at the earlier meeting at Elibank Road were also at Kinross Avenue, except for 6th defendant; that 2nd defendant and 3rd defendant came together at about 9.10 p.m. (the time mentioned in his statement at Temple Trees was at 4.00 p. m,).

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He denied that he saw 2nd defendant there before 3rd defendant came. In evidence he said that, after coming there, 3rd defendant said that everything did not seem to be going well and they may have to call it off: in his statement he said : " Col. de Saram got us together and said that something seems to have gone wrong. They were not certain whether it will come off that day, but he declared the plan."

The password was given as " Yathura ", and the operation was to be known as " Holdfast". Then 2nd and 3rd defendants between them gave the following tasks. 13th defendant was detailed to do some work at the C. T. 0. the words used being " You know your task at C. T. 0." and 13th defendant replied : " Yes, everything is all right. You can perform it within 2 or 3 minutes." Rajapakse said that he had overheard an earlier conversation between 13th defendant and Alwis about putting Exchanges out of action. 15th defendant was detailed to attend to another Exchange. Rajapakse was told to go with 4 armoured cars to Queen's House : and to send 4 more to Kirilla-pone Bridge to prevent persons leaving or entering Colombo. Rajapakse in his evidence first said that he was asked to send the 4 cars to Queen's House, but later agreed that he was to go with them, when he was reminded of what he had said in his statement. 9th defendant was to go with a platoon to Queen's House at' H ' hour.

17th defendant was told that he and 16th defendant (who was not there) should go to Lake House with some volunteer troops to prevent anybody entering or leaving. 10th defendant and somebody else were to go to the Times of Ceylon building with some troops.

8th defendant was to be in charge of Echelon Square (but this was not mentioned by Rajapakse in his statement). Abeysinghe was to be at Army Headquarters where, according to a remark of Abeysinghe, there were 3 platoons under his control. Alwis was given a task but Rajapakse could not remember it.

If the operation was to be called off a message would be sent " The appointment tomorrow morning cannot be kept " or words to that effect. There was to be no move before 1 a.m. and the operation was to be put into effect only after the Governor-General, the Army Commander, the D. I. G., C. I. D., and the Navy Commander had returned to their homes to sleep. Rajapakse said that from Kinross Avenue he and 14th defendant eventually went to Rock House Camp reaching there at about 11 p.m.

Abeysinghe said that he too got to Kinross Avenue at about 8.30 p.m. and met Rajapakse and 14th defendant there. He said that he saw 2nd defendant and 10th defendant there, and he thought he also saw Alwis, and later on most of the Army Officers. When 3rd defendant came, the others walked towards him and 2nd defendant and 3rd defendant started talking. Abeysinghe said that he had his assignment, and 11th defendant was asked to attach himself to Abeysinghe. Possible

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assignments were discussed for various persons. The password " Yathura" was mentioned by Abeysinghe when another password " Holdfast " was mentioned.

Abeysinghe also said that the question of guards being provided at Lake House and the Times of Ceylon building transpired. He got the impression that Queen's House was going to be the operational Headquarters and that some armoured cars were to be sent there. When he asked about the means of communication with Queen's House, 3rd defendant said that an armoured car would be placed at Army Headquarters, if possible, so that he could communicate with Queen's House by radio. When he asked where the Army Commander would be, 2nd defendant told him that he would be at Queen's House. 3rd defendant also said that if something definite was going to happen, he would call the " O " Group of Lieut. Colonels if necessary, but they were all asked to go and stand by their phones. 3rd defendant also said that the Governor-General was sympathetic towards this move, and that he would not take any action without first informing the latter and getting his approval.

Alwis also gave evidence as to what happened at Kinross Avenue, Both he and Abeysinghe said that 3rd defendant came some time after the other officers had assembled there, and mentioned about a possible move by Mr. Bandaranaike to seize power in the country.

Alwis said that 3rd defendant discussed with the officers there for about half an hour the probable tasks that he would allocate with the intention of stopping that; he discussed with 13th defendant about how long it would take to disrupt communications at the C. T. O., but Alwis could not remember 13th defendant's reply. 3rd defendant also talked about the Havelock Town and Maradana Exchanges but Alwis could not remember what was said. 3rd defendant asked Alwis if he would be available to go to Army Headquarters to answer telephones, half an hour after the operation came into force, and the code word " Holdfast " was mentioned. The code word " Yathura " was also mentioned, to be used by anybody who wanted to enter Army Headquarters. Queen's House was discussed and something said about its protection. There was a discussion about the Lake House and " Times " buildings and 3rd defendant said something like " Leave those fellows alone." 3rd defendant said he would summon an ' O' group of officers and give the orders if the necessity arose.

We have expressed our opinion elsewhere of both Abeysinghe and Alwis. It is sufficient to say here that they demonstrated plainly their eagerness to shape their evidence to help the defence.
On January 16th Stanley Senanayake, S. P. Colombo, held a Conference of his gazetted officers at the instance of the 4th defendant for the purpose of forming a squad to trail Leftists. Senanayake asked the officers who attended to select a few men from each Police Station and get them to report to the S. P. Crimes (18th defendant). When 20th defendant said

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at the Conference that trailing Leftists was a special job, it was agreed to watch the Leftists' residences instead, and the specially chosen men were to report to the S. P. Crimes after watching. The significance of this scheme to watch the Leftists' houses will appear later. The file which contains notes of the residences of Leftists and the waya of watching them has been put in evidence by Mr. Kannangara and marked 19D64. Selected Constables were interviewed and given instructions as to what to do, when they came before Senanayake. At this time also 4th defendant telephoned A. S. P. Munidasa and told him to check on the underground telephone system which linked the S. P. Colombo's office with the Police Stations in Colombo. 4th defendant had a few days earlier asked him for a list of the Police Stations on the teletype network, and he sent it to the 4th defendant.

The witness Vandendriesen, A. S. P. Depot, has stated that about two weeks before 27th January 4th defendant sent for him to Police Headquarters and told him that there was a move to overthrow the Government. When Vandendriesen laughed, 4th defendant said : " Yes the Military are in this and it is coming from the top, so come in." Vandendriesen, like Col. Abeysinghe, said that he thought the expression " from the top " referred to the Governor-General; and he replied " All right, I will come in." According to the record of his statement made at Temple Trees on 19th February (4D15) Vandendriesen stated : " About 2 weeks before 27.1.62 Mr. C. C. Dissanayake asked me to come to bis office at Police Headquarters. It was an afternoon at about 3 p.m. Then he said to the following effect: 'Are you ready to come in if we get rid of this Government ?' Having referred to 4th defendant making a statement about it " coming from the top ", Vandendriesen stated (4D16) "I did not think of anything when he said ' coming from the top.' I don't know what he meant. He said that there are big people involved. I thought that there were people bigger than Mr. C. C. Dissanayake probably persons outside the Government-I agree that the Government cannot topple itself.'' The purpose of Mr. Kannangara marking these two passages was to show that Vandendriesen did not, in his statement, use the expression " overthrow the Government ", or say that he knew the meaning of the expression " coming from the top "

To continue the evidence given by Vandendriesen, he has said that about a week later 4th Defendant sent for him again and told him that his job was to arrest Mr. Bandaranaike. Vandendriesen said he exclaimed : " Good God " or some such words, but agreed to the proposal, 4th defendant has denied that he intended Vandendriesen to arrest Mr. Bandaranaike. He has said that he himself, along with Mr. Jayakody, S. P., was going to arrest him. But he had never informed Jayakody of that.

Further, Vandendriesen has said that about three days before 27th January, 4th defendant telephoned to him to bring 3 automatic weapons that evening to his house and he agreed. He collected 3 Stirling guns in

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a box along with some empty magazines, and took them to 4th defendant's house. He was asked by 4th defendant to show him how the guns were assembled (the proper description of the process would be " unfolded "), and he showed him also how the magazines were fitted to the guns. It may well be that 4th defendant did not need to be shown how the guns were unfolded as he had enough knowledge of guns to approve of the Manual of Musketry and Revolver Shooting which Mr. Kelaart had drafted. Vandendriesen said that 19th Defendant was present at that time. When 4th defendant asked Vandendriesen if he could bring him ammunition, Vandendriesen said he could not, and 19th defendant said he would attend to that.

These allegations made by Vandendriesen have been denied by the 4th defendant and 19th defendant. They denied that 19th defendant was present on the evening of 25th January when, as 4th defendant has admitted, Vandendriesen took 3 Stirling guns and 6 empty magazines to 4th defendant's house about 5 p.m. (admittedly on 4th defendant's orders). 4th defendant said he found fault with Vandendriesen for bringing empty magazines and told him to take them away, get them filled, and let him have them by the 27th when he asked for them.

Undoubtedly Vandendriesen's failure to make the proper entries regarding the removal of 3 guns, in the books maintained for that purpose at the Police Depot Armoury, was a serious neglect of duty. Mr. Kelaart has said that such an entry was imperative, every time a gun was removed from the Depot. This is the obvious means by which the Armourer can account for the disposition of weapons in his custody. What was the reason for the omission ? If Vandendriesen had not been told of any plan before January 25th, it is unlikely that he would not have complied with the regulations by entering the removal of the 3 guns. The mere fact that 4th defendant wanted them was no excuse for omitting to make the entries. But Vandendriesen very probably knew that the 3 guns were required in connection with the move about which 4th defendant had spoken to him twice previously. Hence no entries were made, even though the 3 guns were left in the possession of the 4th defendant.

The failure of Vandendriesen to obey 4th defendant's order to bring the 6 empty magazines filled is explained by Mr. Kelaart's evidence that no ammunition could leave the Depot unless he personally authorised such removal: that was an order he had previously made.

About 6.30 p.m. that evening, 4th defendant, 19th defendant, A. S. P. Sol Gunatilleke and A. S. P. Johnpulle travelled in 19th defendant's car from their respective houses to the Police Mess to play bridge. Gunatilleke said that, when they got out of the car at the Mess, 4th defendant called him back while 19th defendant and Johnpulle entered the Mess. 4th defendant asked Gunatilleke to be Duty Officer from 9 p.m. on the 27th to 9 a.m. on the 28th in place of A. S. P. Dickman. 20th defendant's name had been entered in the relevant book as Duty Officer from 1 p.m. to 9 p.m. on the 27th. Gunatilleke accordingly telephoned Dickman and

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made arrangements with him to be Duty Officer, although Dickman had already asked A. S. F. Selvaratnam to act for him, as Dickman had arranged to go to Kurunegala. Gunatilleke said that on the way home from the Mess that night 4th defendant inquired from him if he had made the necessary change, and also told him to await orders. Gunatilleke was not told the reason for the change, and when he tried to find out the reason from Johnpulle and 19th defendant they told him that they did not know the reason either, but 19th defendant told him that he would be summoned to a Conference and would be informed.

4th defendant admitted that he gave these instructions to Gunatilleke, but he said he did so openly at the bridge table. His reason for having Gunatilleke as Duty Officer was that he wanted the Duty Officer to be close to his house, and Gunatilleke lived next door to him. But the significant detail, which we cannot lose sight of, is that on the 25th evening 4th defendant was making arrangements for some event which he then anticipated would take place on the 27th.

It was on the morning of 26th January, according to Stanley Senanayake, that 4th defendant first informed him of the plan to overthrow the Government. He said that when he went to 4th defendant's room at Police Headquarters on being sent for, 19th defendant also came there. 4th defendant then spoke of the strike situation and the declining economy; he accused Mr. Badiudin Mohamed of having ruined the country's education ; he said that the Government must be changed and the Ministers and the Leftists arrested. 4th defendant asked him if he had held the Conference to instruct gazetted officers that no leave should be allowed from 24th January to 29th January, and he said that he had. When he asked 4th defendant if the Inspector-General of Police had been informed, 4th defendant told him that the I. G. P. would be informed. He was asked to meet 4th defendant again that afternoon after the Police Sports Club Committee Meeting which had been fixed for 3 p.m.

Stanley Senanayake said that he was summoned again to 4th defendant's room at about 3.45 p.m., and 19th defendant was also there. 4th defendant continued to speak on the same subject, and told him that there was a large organization for the plan to overthrow the Government, including the Army, Navy, Air Force and most of the senior Police Officers ; that Sir John Kotalawala and Mr. Dudley Senanayake knew of it and that Mr. Dudley Senanayake had agreed reluctantly, because he had wanted to make it an entirely U. N. P. show but the others were against that. 4th defendant also told Stanley Senanayake that Mr. Dudley Senanayake tried to talk down to him but was told not to do that as all are equals in it; Sir John Kotelawala, according to the 4th defendant, said : " You young fellows carry on, and if there is any trouble I will stick my neck out " ; the Governor-General was aware of the plan and approved, and Sidney de Zoysa and Royce de Mel had been contacted.

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Further details which Stanley Senanayake said 4th defendant gave him were : once the arrests of the Ministers and the Leftists had been carried out after midnight on the 27th, radio cars with loud hailers would go round announcing a curfew, and there would be a radio broad-east at 6 a.m. to announce the new Government; 4th defendant had been offered a Cabinet post, but he preferred to stay where he was ; even the then Prime Minister may be taken into the Cabinet; two Supreme Court judges had drawn up a new Constitution.

4th defendant proceeded to tell him of certain Code names, such as "Handsome" for Stanley Senanayake, "Satha" for Sir Oliver Goonetilleke, " Parsee " for Sir John Kotelawala, " Shelly " for Mr. Dudley Senanayake, " Mac " for the 19th defendant, " Smartie " for Lieut. Col. Attygalle ; and that the Code word was " Yathura ".

The documents P20A to P20J which were discovered in the incinerator at Police Headquarters on the 29th January contain these and other Code names. They are all in 4th defendant's handwriting, and they will be referred to in another part of this judgment.

4th defendant and 19th defendant then gave Stanley Senanayake the names and addresses of eight Leftists from a Telephone Directory, and he was asked by 4th defendant to take them down, which he did. The names were Colvin R. de Silva, N. M. Perera, Philip Gunawardena, Pieter Keuneman, Shanmugathasan, Bala Tampoe, M. G. Mendis and S. P. Amarasingham. He said that he was not told what to do about these persons. He admitted that he burnt this list on the evening of 28th January after he returned home from Temple Trees because he was feeling so bewildered, and not because such a list would establish that there were Government orders to arrest Leftists in order to break the General Strike-which was the suggestion made in cross-examination.

4th defendant then told Stanley Senanayake that he would speak to him on the 27th morning, and asked him to summon a Conference of gazetted officers who were to come in civil clothes on the 27th at 6 p.m. to the S. P. Colombo's office. Stanley Senanayake said that 19th defendant, who noticed that he was in distress, patted him on the back and said : " Everything is well planned and will go through ; don't worry."

It has been admitted by Stanley Senanayake that in his recorded statement made at Temple Trees on 28th January at 4.50 a.m. he made no mention of 4th defendant having told him anything on the 26th morning about changing the Government or arresting Ministers and Leftists; nor did he say that 19th defendant was present when 4th defendant spoke to him that morning. It was on 19th February 1962 that he first said that these statements were made by 4th defendant on the 26th morning. Stanley Senanayake's explanation for the omission is that he had listened to such a lot of things, he had gone through such an " ordeal " and had so many drinks before he made his statement on the 28th, that he could not present the facts at the moment in their proper sequence, but as far as possible he gave the main facts. Mr. Ponnambalam

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showed, by putting the words of the statement to the witness, that he said this with regard to the afternoon conversation : " D. I. G. told me that there was a scheme to arrest the Leftist Leaders and the Ministers and he asked me where the Ministers resided. I told him where they resided. I asked him, " Is I. G. aware of this or has he been informed ? " Mr. Dissanayake said he would inform I. G. of this. I was thoroughly shaken when D. I. G. spoke of the scheme to arrest the Leftist Leaders and the Ministers. I understood this to mean a plan to overthrow the Government. When I told him ' Is I. G. aware of this or has he been informed V it was an attempt on my part to stop the scheme from going any further." In order to get the context right we allowed Crown Counsel to elicit the words that followed. They read :-" I was aware that the I. G. Police would not be a party to any scheme to arrest the Ministers. To continue, I asked D. I. G. how he proposed to carry out this scheme. He said that there was a big organization behind this and Sir John Kotelawala was in it and also Mr. Dudley Senanayake who was reluctantly in it and that there were even higher people in it. I am asked what I understood by ' higher people ', I did not give this much thought at that time."

Stanley Senanayake said that he was shocked by what 4th defendant had told him. His subsequent conduct is relevant in this connection. When he returned home that night, he telephoned his brother Lionel's house but Lionel was out. It has been proved that a telephone call was made at 8 p.m. from Stanley Senanayake's house (Phone No. 8784) to Lionel Senanayake's house (Phone No. 413 Mount Lavinia) - see P 116B and P. C. Munasinghe's evidence. Stanley Senanayake said that he and his wife went to Lionel's house about 9.45 p.m. and met Lionel; that he discussed the matter with Lionel; and they agreed that Stanley's father-in-law Mr. P. de S. Kularatne should be summoned as a possible means of communicating the information they had to the I .G. P. Stanley Senanayake explained that he could not himself inform the I. G. P. about these matters because 4th defendant was " the most senior D. I. G. and a very powerful gentleman " and " Mr. Thuraisingham (S.P., W. P. Central) and the whole crowd would never have stood up against 4th defendant." Stanley Senanayake had to admit that he has never, in any statement, mentioned the decision made by him and his brother to summon Mr. Kularatne.

4th defendant's version of his meeting with Stanley Senanayake on the 26th morning is quite different. He said he told Stanley Senanayake " If an illegal order comes, I will arrest Felix Dias. Your job is to arrest N. Q. Dias. You can choose any personnel you like. You must watch him from the 27th morning and that is your job," and that Stanley agreed with enthusiasm. He said he also told Stanley that he wanted an Officer to watch Rajan Kadirgamar, and another gazetted officer for various jobs, and Stanley suggested A. S. P. Johnpulle (to watch Rajan Kadirgamar) and 20th Defendant. He said that Stanley Senanayake asked for gazetted officers and equipment from the Training School, and vehicles from the Central Garage, and he agreed; and when he spoke

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of these matters to D. I. G. Wambeek, the latter also agreed. He suggested that if Brohier and Arumugam were ever asked to play any part, it could only have been because Stanley Senanayake, a good friend of theirs, might have asked them. It is a matter for comment that Brohier and Arumugam implicate 5th defendant and not Stanley Senanayake as being responsible for their participating in the plot. 4th defendant did not admit that anything important happened between him and Stanley Senanayake on the 20th afternoon.

It is agreed between Stanley Senanayake and 4th defendant that on the 26th evening 4th defendant told Stanley Senanayake that he would pick him up and take him for a walk on the 27th morning ; and that he drove Senanayake from the latter's house at 6 a.m. to the various places mentioned by Senanayake. They included All Saints' Church, Borella, and St. Anthony's Church, Kochchikade. 4th defendant then drove towards Galle Face. Senanayake said that on the way, at the C. T. 0. roundabout, 4th defendant suggested that they should go and get Senanayake's rubber stamp with his name from his office, as it may be needed in connection with some orders to be issued, but Senanayake demurred. They then walked on Galle Face where 4th defendant asked Mr. Atukorala, the Governor-General's Secretary, whether the Governor-General would be in that evening ; and they also met certain other persons there.

Stanley Senanayake said that on their walk 4th defendant again mentioned that there was a big organization behind the plan ; and on the drive back home 4th defendant again asked him about signing orders. We shall discuss this point elsewhere.

They returned to Senanayake's house about 7.30 a.m. after which 4th defendant drove away. Stanley Senanayake said that he booked a telephone call to Mr. Kularatne, and his wife spoke to her father. In his statement he has said, however, that it was his wife who booked the call. It has been proved by the witnesses Pemawathie and Yasawathie Perera and the entries in the Trunk Call Ticket (P 117) that a trunk call from Senanayake's house to Mr. Kularatne's house was made shortly before 8 a.m.

Senanayake said that on learning that Mr. Kularatne would be coming to Colombo that afternoon he telephoned to his Personal Assistant, A. S. P.' Tiny ' Seneviratne, to summon a Conference of Colombo Division officers for 6 p.m. that evening at his office. Mr. Seneviratne supported him on this point, and said that he contacted all the Colombo gazetted officers except A.S.P. Sol Gunatilleke who was to be Duty Officer that evening. Mr. Seneviratne said that although A.S.P. Vandendriesen, S.P Dedigama, A.S.P. Mendis and S. P. Thuraisingham attended that evening's Conference, they had not been summoned by him; the evidence shows that it was 4th defendant who summoned them.

What happened after Mr. Kularatne's arrival at Stanley Senanayake's house at about 3 p.m. will be discussed elsewhere.

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We have another witness A.S.P. Johnpulle who claimed that he was told of the plot, which is the heart of the prosecution case, by 4th defendant on the 27th morning in the presence of 19th and 20th defendants.

Johnpulle said that he was summoned by 4th defendant to his office at about 9.15 a.m. that morning. 4th defendant told him " Johnpulle, do you know what is happening today V and also " We are taking over the Government today." After 4th defendant had said that, 19th and 20th defendants came into the room. 4th defendant then gave John- pulle and 20th defendant certain instructions. He said : " I have selected  you two chaps for the toughest assignment" and told them that they  had to arrest the Navy Commander Rajan Kadirgamar at about midnight when they received an order in Code. He gave them as Code words " Holdfast-Arrest" ; " Commo " as the Code name for Kadirgamar and " Mack " for 19th defendant. 20th defendant was told to assist Johnpulle. They were ordered to take a party of 2, 2, 30 to carry out the arrest. After arresting Kadirgamar they were to take him to Army Headquarters and hand him over to S.P. Arndt, and use the password " Yathura " in order to enter the Headquarters. They should then go to Queen's House and report there.

Johnpulle was told to start shadowing Kadirgamar at once, and inform 19th defendant on the telephone of Kadirgamar's whereabouts at 3 p.m., 5 p.m., 11 p.m. and 12.01 a.m.; and if he was sleeping, 19th defendant was to be told " Commo roosting ". When these orders were given, 19th defendant was standing there with a pad in his hand. 19th defendant reminded 4th defendant of ladders, and 4th defendant then told Johnpulle that ladders would come from the Training School and he should take charge of them and keep them at the Traffic Station.

Johnpulle was also told (1) to send 15 motor cyclists with armed pillion riders at 11 p.m. to Torrington Square where 19th defendant would meet them, (2) to get a covered lorry to stand by at the Traffic Station from 9 p.m., and (3) to keep the Radio Cars with the loud hailer system in readiness at midnight to announce a curfew.

Johnpulle said that 20th defendant asked " Is the I. G. P. aware of this ? " and 4th defendant said " I have looked into that." 4th defendant told them to attend a Conference at 6 p.m. at the Superintendent of Police Colombo's office in civils.

Johnpulle said that he took steps that morning to comply with the instructions he had received. He gave orders to Inspectors Imbuldeniya, Mendis, Samaradasa and Sub-Inspector Sheriff. Imbuldeniya did not support Johnpulle in all the details which Johnpulle mentioned in evidence. He said that at about 11 a.m. Johnpulle ordered him (1) to arrange for all Traffic personnel to report at the Traffic office at 10 a.m. for a mass patrol ; (2) to detail 15 motor cycle patrols and 15 armed pillion riders to report at Independence Square by 11 p.m.; (3) to stand by with 25-30 men at Traffic Headquarters with rifles for instructions; and (4) to have all the Radio Cars available.

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Mendis said that at about 10.30 a.m. Johnpulle told him there would be a mass patrol that night at 10. p.m. and asked him to get a pair of handcuffs and be ready, also that he should be armed himself. Mendis said that he obtained a pair of handcuffs at about 8 p.m. and he was corroborated on this point by Police Sergeant Belleth and Police Sergeant Siripala.

Samaradasa said that he was told by Johnpulle to start shadowing Kadirgamar immediately, along with Police Sergeant Ganegama, and to contact Johnpulle thereafter. He did so, and he spoke to watching Kadirgamar-at Queen's Road, and at the Regal Theatre-and to carrying out this assignment until midnight.

Sheriff said that Johnpulle told him that morning to obtain a covered lorry by 10 p.m. as it was needed for operation. He accordingly arranged to get such a lorry from Jafferjee Bros, and the lorry was brought to the Traffic Office that night. Witnesses M. T. Fernando and A. A. Jafferjee corroborated this part of Johnpulle's evidence.

Sub-Inspector Warakagoda said that he came to the Traffic Station at about 10 p.m. for a Mass Patrol, in obedience to a notice which he saw that morning on the Notice Board. Imbuldeniya then told him to take 15 motor cyclists and armed pillion riders to Torrington Square at 11 p.m. and await the arrival of Johnpulle. Arms and ammunition were drawn for this purpose.

Imbuldeniya said that at about 10.30 p.m. the Inspector-General of Police telephoned to him and enquired what had been happening, and ordered him to disperse the men, which he did.

Two Conferences with groups of gazetted Police Officers were held by 4th defendant on the 27th, one in the morning and one in the evening. It is necessary to refer to these in some detail.

The morning Conference was held at about 10.30 a.m. and was attended by Thuraisingham (S. P., W. P. Central) and 5 A. S. P's under him- Lionel Senanayake (brother of Stanley Senanayake), Bartholomeusz, Ranasinghe, Jayasinghe and Samaraweera. 19th defendant was also present. All the A. S. P's mentioned, except Jayasinghe, have given evidence and the general effect of it is that 4th defendant first complained to them of a Member of Parliament who had tried to get him to transfer a Constable: he was then called away to the I. G. P's office but returned in a short time. He then read out a list of names from a paper, saying that they were Leftists who had to be arrested. Thuraisingham took the names down (P3). The names were Robert Gunawardena, Edmund Samarakkody, K. M. P. Rajaratne, Stanley Tillekeratne, Somawira Chandrasiri and Wilfred Senanayake. When 4th defendant asked whether there were any other trouble makers, Lionel Senanayake suggested the name of one Livera. 4th defendant mentioned Mendis and Mettananda also as trouble makers who should be arrested, but be was told

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that they resided outside the jurisdiction of these officers. 4th defendant said that the arrests were to be made between midnight and 1 a. m and orders to arrest would come from Headquarters or the Inspector-General of Police, and the arrests were going to be made on the orders of Government.

4th defendant then took Thuraisingham and Ranasinghe to the Inspector-General of Police's office because Ranasinghe wanted to stage a " Nadagama " in February, but owing to the expected general strike the Inspector-General of Police said that it could not be held in February.

After that 4th defendant spoke to Thuraisingham and Bartholomeusz alone in his office. 4th defendant having asked Bartholomeusz if he knew where Udugama lived; Thuraisingham told him that he lived in Lunawa. 4th defendant telephoned to No. 7035, which was Udugama's bungalow telephone number, and spoke to a servant who told him that Udugama was in Jaffna. 4th defendant then told them that Udugama's house must be placed under surveillance.

Thuraisingham and Bartholomeusz then left 4th defendant's office after Thuraisingham had been told to come to S. P. Colombo's office in civils at 6 p.m. that evening.

Action was taken by Thuraisingham to detail officers to carry out the arrests, and he also told Bartholomeusz to have a party ready to watch Udugama's house. The evidence detailed above is not seriously contested by 4th defendant, who said that he told the officers at that Conference to arrest all trouble makers, and that the names he gave the officers were on a list which Abeykoon gave him earlier that morning. Obviously, however, he was not confining the arrests to the names appearing in the alleged list.

Before we refer to what happened at the 6 p.m. Conference we shall mention certain other orders 4th defendant gave his officers on the 27th morning.

We have already referred to his instructions given to Johnpulle and 20th defendant before the 10.30 a.m. Conference. The next officer 4th defendant interviewed was Assistant Superintendent of Police (Transport) Jayatileke at about 11 a.m.

Jayatileke said that he had been asked by 4th defendant to see him at 11 a.m. He waited outside till the 10.30 a.m. Conference was over, and after that Conference was over he saw 1st defendant going into 4th defendant's office and coming out in 5 to 10 minutes. Some comment must be made with regard to this meeting between 4th defendant and 1st defendant. 4th defendant said that he had no recollection of seeing 1st defendant on the 27th, while 1st defendant admitted that he went to 4th defendant's office at about 11 a.m., because 4th defendant had 3 or 4 days earlier told him to come, without troubling to make an

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appointment, to see him about an illicit liquor booth which was being run opposite a friend's house in Thimbirigasyaya. 1st defendant said that he was not longer than 2 or 3 minutes in 4th defendant's office. One significant fact regarding this meeting is the evidence of Sub-Inspector Karunadasa who was on duty that morning in the Information Room. He said that 4th defendant telephoned to him at about 9 a.m. to send Mr. Liyanage up when he comes. Another matter which should be mentioned is that when 1st defendant was questioned at Temple Trees on 2nd February he is recorded as having said: " I have had occasion to meet C. C. Dissanayake once. That was a day or two before the token strike " (P 167). This statement is incorrect if it was made, because admittedly he met C. C. Dissanayake twice. It is our view that it was made, notwithstanding 1st defendant's explanation to the contrary. It would be seen that 1st defendant and 4th defendant did meet that morning in 4th defendant's office : and yet both 1st defendant (on 2nd February) and 4th defendant (in his evidence at the trial) seemed reluctant to admit that meeting though they could not have forgotten it, and this is undoubtedly a circumstance which we can take into consideration against them.

Now Jayetileke's evidence is that on the 27th morning, 4th defendant told him that he wanted transport that night, saying it was needed " to jump on the Communists before they jumped on us ": that he would personally call for the transport; and that about 15 vehicles were needed for the arrest of Communists. Jayatileke returned to the Transport Office and instructed Inspector Wickremasinghe at about noon to have all available jeeps and cars ready as they would be required by 4th defendant. Jayatileke said that he met Mr. S. A. Dissanayake, D. I. G., C. I. D. at 1.30 p.m. and 7 p.m. and that after the second meeting he instructed Inspector Wickremasinghe not to release transport unless he gave orders personally. Inspector Wickremasinghe, however, did not support Jayatileke on this point. But they both said that about 10 p.m. they went together to the Police Garage and the gates of the Garage were locked. A good deal of the cross-examination of Jayatileke was directed to certain alterations of the typed statement (the entirety of it has been marked 1D2) made by him on 19th April 19C2 at the C. I. D. office. Those alterations are in the handwriting of Mr. S. A. Dissanayake, and they were made, according to Jayatileke, without his permission or knowledge. These matters may have been important in some other connection, but they do not have much bearing on Jayatileke's veracity. Indeed, we are unable to understand why it was suggested to Jayatileke by Mr. Kannangara (1) that he did not come to Police Headquarters till after noon on 27th January and (2) that he was sent to Temple Trees on 2nd February to have a good look at 1st defendant, when 1st defendant himself had admitted not only that he entered 4th defendant's office at Headquarters before noon, but also that he met Jayatileke at Temple Trees and spoke to him on the night of 1st February. We cannot help remarking that if pointless

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cross-examination of this type had not been indulged in, much time would have been saved. Counsel too seldom reflected on the purpose of some of the questions put to witnesses. We need only add that Mr. Kannangara appeared for 19th defendant who himself said that 1st defendant was taken by him into 4th defendant's room on the 27th morning.

The next officer, after Jayatileke, whom 4th defendant interviewed that morning seems to have been Rosemalecocq (S. P., W. P. (South)), who saw 4th defendant at his request. 4th defendant told him to be ready to arrest trouble makers like Leslie Gunawardena on receipt of an order from the Inspector-General of Police about midnight. This evidence is not contested by 4th defendant.

At about 11.15 a.m. 4th defendant next saw Dep (Additional S. P., Headquarters) and told him that they were going to carry out a raid and asked him to come to the Information Room at 11.45 p.m. to attend to messages. Dep said that he did not in fact go to his allotted post, because 4th defendant telephoned to him at 11.45 p.m. and asked him not to come.

4th defendant next interviewed Abeysekera (A. S. P., Headquarters) and told him to report at the Information Room at 11.45 p.m. Abeysekera obeyed the order. When he telephoned 4th defendant from the Information Room that night, after hearing the Inspector-General of Poliae'3 special message to gazetted officers being relayed at about midnight, 4th defendant told him to go home.

At about 11.40 a.m. 4th defendant interviewed Arndt (Superintendent of Police, Headquarters) and told him that certain arrests (of about 70 persons according to Arndt) had to be made that night, and he wanted Arndt to act as liaison officer with Lieut.-Col. Abeysinghe at the gate of Army Headquarters at a time which Abeysinghe would fix. Arndt's task as given to him by 4th defendant was to identify the Police Officers, if the Army had doubts about those officers, when they brought in arrested persons. 4th defendant told Arndt that the operation was to be called " Holdfast " and the password would be " Yathura ". Arndt and Abeysinghe were to meet at 1.30 p.m. at Arndt's house, and Abeysinghe has stated that 4th defendant telephoned to see Arndt at 1 p.m. at Arndt's house. As in the case of Bartholomeusz and Rosemalecocq who were given orders that morning, Arndt was also told to keep the instructions confidential.

It is plain from the evidence of Arndt and Abeysinghe that in order to carry out their instructions they met by arrangement at midnight at Abeysinghe's flat: they could not have fixed on this time except on instructions from a superior officer.

P. R. de S. Seneviratne (Temporary A. S. P ., Headquarters) was also given orders that morning by 4th defendant to go to the Depot Police Station and collect a strength of 1, 2, 16 at about 11 or 11.30 p.m and

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then go to the Radio Control Room at the new Secretariat. 4th defendant told him that " there was likely to be a change." At about 10 or 10.30 p.m. Seneviratne went to the Depot and asked for the Superintendent of Police, Depot, but he was not in, so he did not collect the strength. He went to 4th defendant's house at about 11 p.m. but did not see 4th defendant there, though he saw his wife and children and 18th defendant and 19th defendant there. He then went home. Seneviratne admitted that it was only on 20th February that he mentioned that 4th defendant told him there was going to be a change, which he understood to be a change of Government. 4th defendant has stated in evidence that he ordered Seneviratne to get a party of men from the Depot and guard the Wireless Room. His reason was " because it is one of the nerve centres of Ceylon. From it one could transmit messages to the whole of Ceylon."

A significant point in connection with the orders given by 4th defendant that morning and again that evening to a large number of gazetted Police Officers is that they had to be at their respective posts at about midnight. 4th defendant had no reason to fix this time unless he was going to be in an operation which he knew would occur at about that time.

At the evening Conference, the following gazetted officers assembled in the office of the Superintendent of Police, Colombo, on instructions from either 4th defendant or Stanley Senanayake (conveyed through his Personal Assistant Mr. Tiny Seneviratne) viz. Stanley Senanayake, Thuraisingham, Dedigama, two Seneviratnes, Vanderwall, Munidasa, Doole, Mendis, K. A. R. Perera, Vandendriesen, Johnpulle and 20th defendant.

Stanley Senanayake was told at a very early stage to leave the room and to go with Johnpulle to the latter's house. Both Senanayake and Johnpulle say that 4th defendant told Senanayake to go with Johnpulle and stay at the latter's house until he came there. How that came about is a matter of some relevance.

It is quite clear, from the evidence of the prosecution witnesses and of 4th defendant, that after 4th defendant reached the Conference room he was informed that 2 Criminal Investigation Department Inspectors had come to meet Stanley Senanayake. The 2 C. I. D. Officers have been identified, in the evidence of Inspector Kandiah, as Inspector Kandiah and Police Sergeant Abdeen. According to 4th defendant's evidence in chief, he asked A. S. P. Johnpulle to go and tell them that he was going to have a Conference, and they could meet Senanayake after the Conference was over. Under cross-examination he said he told Johnpulle to go and meet them and find out what they wanted, and if it was of any importance to inform him. Johnpulle's evidence is that when he was sent downstairs by 4th defendant from the Conference room to-bring a bag from bis car, he met Inspector Kandiah who said that he had been sent by the D. I. G., C. I. D. to search for Stanley Senanayake.

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Johnpulle admitted that he told Kandiah a he when he told Kandiah (and Kandiah said the same thing) that Senanayake had gone out. Johnpulle said that when he went back and told Senanayake that Kandiah had come in search of him 4th defendant said to Johnpulle " Send him away ." At that stage Johnpulle said he went down again and found 20th defendant (who was near Johnpulle and Kandiah on the previous occasion, according to Kandiah, and could have heard Kandiah asking for Stanley Senanayake) telephoning Stanley Senanayake's house and asking for him.

Kandiah said that 20th defendant had volunteered to telephone Senanayake's house and find out if he was there. So he and 20th defendant and Police Sergeant Abdeen went to the Fort Police Station from where 20th defendant dialled a number and told him that Senanayake had not arrived at his house. Kandiah said that he then went to the Traffic Office and telephoned the D. I. G., C. I. D. and informed him of this.

We have not the slightest doubt that 4th defendant, Johnpulle and 20th defendant deliberately prevented Inspector Kandiah from meeting Stanley Senanayake whom Kandiah had been ordered to meet for questioning. According to 4th defendant, Stanley Senanayake was told to leave the Conference room because he complained of a headache, and as he did not wish to go home 4th defendant suggested that he should go with Johnpulle to the latter's house. Senanayake said that he was sent away by 4th defendant after the arrival of the C-I-D- officers had been announced.

A series of assignments were then given by 4th defendant to most of the officers at the Conference. They were as follows :-

(1) Munidasa to go to the Radio Laboratory, Narahenpita, at 11.45 p.m.

(2) Dedigama to guard the C.I.D. from 11.45 p.m. 4th defendant adding " you will get 1, 1, 16 from the Depot " ;

(3) K. A. R. Perera to stand by at the Officers' Mess at midnight;

(4) Vandendriesen to go to 4th defendant's house ;

(5) Doole to take a contingent and to go to the Air Vice Marshal's house and see that he did not leave the premises after 12,30 a.m ;

(6) Mendis to collect 1, 1, 16 from the Depot and to go to the Army Commander's house and see that he did not leave the premises after 12.15 a.m.

(7) D. C. Seneviratne,

(8) C. (Tiny) Seneviratne, and ;

(9) Vanderwall , who were told to wait at their homes. These orders are, in the main admitted by 4th defendant. 18th defendant is mentioned by Doole and Thuraisingham as having been at this Conference, but they do not say that any assignment was given to him by 4th defendant.

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20th defendant was told to go to Johnpulle's house at about the time that Johnpulle and Stanley Senanayake were told to leave the Conference room, and according to Senanayake, 20th defendant arrived at Johnpulle's house after he and Johnpulle had arrived there.

Johnpulle said that Stanley Senanayake drove him from the Conference to Johnpulle's house ; on the way he asked Johnpulle to see if the C.I.D. officers were following them ; he drove straight into the garage and before he got out of the garage he asked Johnpulle to send away the latter's Orderly and another person who were there ; and he went upstairs through the back door. He described Senanayake's condition as being very nervous. After 20th defendant arrived there, Senanayake asked Johnpulle, according to the evidence given by both of them, to go and inform his wife that he was all right and was not taking part (though this latter detail was not mentioned by Johnpulle in any statement of his).

After 4th defendant left the Conference room, he admittedly ordered Inspector Suraweera of the Port Police Station to have an armed party ready at 10.30 p.m. as he was expecting trouble that night. Suraweera made the order in the Routine Information Book (P 43) and an Order Book (P 44), specifying 2 Sub-Inspectors, one Police Sergeant and 17 Police Constables to be the party.

4th defendant later went on to 19th defendant's house in order, as he said, to pick up Sub-Inspector Ski Chandra. 19th defendant was not at home when 4th defendant got there; he was probably at the Officers' Mess. 4th defendant said that he took Siri Chandra to his house, and from there to Johnpulle's house which adjoins it.

Johnpulle and Stanley Senanayake spoke to certain telephone calls which were then made from the bedroom in Johnpulle's house. 4th defendant admitted that he asked Vandendriesen to telephone to Mr. Bandaranaike's house and find out if he was there, asking Vandendriesen to give his name as Walker. The purpose of the call was to check on Mr. Bandaranaike's movements. Vandendriesen telephoned Bandaranaike, saying that he was Walker, and told him that he would come to see him in 10 or 15 minutes. Mr. Bandaranaike spoke to receiving such a telephone call, and said that as Walker did not come he left for Temple Trees at about 8.30 p.m.

There is disagreement between 4th defendant, Johnpulle, Stanley Senanayake and Vandendriesen regarding the other telephone conversations which took place from that room at about that time. Vandendriesen and 4th defendant speak to one conversation viz. the one with Mr. Bandaranaike ; Stanley Senanayake speaks to two, the one with Mr. Bandaranaike and another conversation in which 4th defendant took part. Johnpulle speaks of three. These three were, according to Johnpulle's evidence, (1) the one between Vandendriesen and Mr. Bandaranaike ; (2) another in which 4th defendant spoke to Kitto after asking Johnpulle for Kitto's telephone number, and at the end of it telling the

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others that Attygalle would be looked after till 2 a.m.; and (3) one where Johnpulle answered when the telephone rang and 5th defendant then said : " I said I would ring you up in 15 minutes time." Johnpulle said he recognised 5th defendant's voice and gave the receiver to 4th defendant who spoke to 5th defendant, saying " Yes " and " No ".

In order to contradict Johnpulle's evidence regarding these telephone conversations, Mr. Ponnambalam put the following passage in his statement of 6th February to him : " At this time the telephone rang. I answered the phone. A lady asked for Mr. Johnpulle. I said I was speaking. Then Mr. Zoysa came on the line (and said) " You wanted me to ring in about 15 minutes time ". I said " Yes " and gave the telephone to Mr. Dissanayake. He spoke 2 or 3 words to convey that everything was all right." The point Mr. Ponnambalam sought to make was that according to Johnpulle's evidence 5th defendant's call was the last and not the first as mentioned in the statement; and the call to Mr. Bandaranaike was not the first as mentioned in his evidence. We have taken account of this discrepancy. At this stage, Vandendriesen was told he could go home and await a telephone call.

4th defendant said (and Johnpulle said much the same thing) that from that room he sent 20th defendant to alert some Police Stations which he (4th defendant) wanted alerted by Stanley Senanayake, but which Senanayake told him he had forgotten to alert. There is a great deal of evidence, given by several Police Inspectors in charge of Police Stations, that 20th defendant ordered the Inspectors at the following stations to have parties ready for a raid that night - Cinnamon Gardens, Foreshore, Maradana, Pettah and Bambalapitiya.

We have concluded the narrative of a good part of the evidence of the prosecution witnesses involving the 3rd and 4th defendants in the alleged conspiracy. We think this a convenient stage at which to discuss some matters of general importance concerning that part of the evidence. Firstly, the comments and criticisms made by the defence regarding the circumstances in which information of the conspiracy is said to have reached the Inspector-General and Mr. Bandaranaike on 27th January, and regarding the activities at Temple Trees after the Prime Minister was informed that night of the alleged conspiracy. Thereafter, the general criticisms urged against Mr. Abeykoon then Inspector-General of Police as being a person very easily susceptible to political influence. Lastly, the important question whether Major Rajapakse and Superintendent of Police Stanley Senanayake should be regarded as accomplices in the alleged conspiracy.

After discussing these matters, we will consider the evidence given by the 3rd and 4th defendants at the trial.

We now refer to certain adverse comments made by the defence or the different versions of the prosecution witnesses who were responsible for conveying the information which led to action being taken by the Government.

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It was argued by Mr. Ponnambalam that the first informant was not Stanley Senanayake but his wife, because it was she who summoned her father by telephone and it was she who gave Salman and Vernon Fernando the information which they took to Mr. Bandaranaike. But the only relevance of Salman's visit to Mr. Bandaranaike, and the conversation they had at about 7 p.m., is that it occasioned a telephone call summoning the Inspector-General of Police to Mr. Bandaranaike's residence. The Inspector-General of Police arrived at about 7.30 p.m. and Vernon Fernando was also summoned thereafter. Whatever information was conveyed to Mr. Bandaranaike by Salman and Vernon Fernando, and whoever was said to have given them that information, are all matters of hearsay and we cannot rely on this part of the evidence to look for the truth.

It is true that Kularatne was summoned to Colombo by a telephone call made by his daughter. But Kularatne's evidence makes it plain that the information he got and conveyed to the Inspector-General of Police was given to him by the two Senanayake brothers. He met his daughter downstairs when he arrived at her house at about 3 p.m. He spoke to her for about one or two minutes; he thought that she gave him an inkling of the position and then took him upstairs where he met the two brothers. She was not, said Kularatne, his informant. His informant was in the main Stanley Senanayake, and also Lionel Senanayake.

It would be strange if the two Senanayakes and Kularatne were able, in their evidence, to recount accurately, and without some variations in their respective versions, what passed between the three of them on the 27th January afternoon. The most significant things they informed him about were a plot to overthrow the Government that night: that they had sent for him in order to inform the Inspector-General of Police because they found it difficult to convey it themselves, as it involved a charge against a superior officer, they had no corroboration, and some people had got into trouble by doing such a thing before : and that the superior officer was in this case the 4th defendant who, according to Stanley Senanayake had informed him of the plot. Kularatne then remarked to them that it disclosed a case of treason and immediate action should be taken. The evidence of the two brothers bears out all that Kularatne said on these matters.

Further details which Kularatne said he was told that afternoon by the brothers were that Sir John Kotelawela, Mr. Dudley Senanayake, the 5th defendant and the 6th defendant were parties to the plan and that it was proposed to arrest Leftists and Ministers. Both Lionel and Stanley Senanayake have said in evidence that they told Kularatne these things. Lionel Senanayake said that Stanley had given him the information on the 26th night. Mr. Ponnambalam's suggestion Was that these four persons were mentioned by Lionel Senanayake in his statement at Temple Trees on the 28th morning at the instance of Mr. Bandaranaike and Mr. S. A. Dissanayake. In making this

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suggestion against these two gentlemen, Mr. Ponnambalam put this passage from that statement to Lionel Senanayake: " He (that is Stanley Senanayake) told me that the D. I. G., Range 1, had ordered .the arrest of certain persons, no names were mentioned. Mr. Senanayake told me that the persons to be arrested included Ministers of State. He said that Mr. C. C. Dissanayake had told him that Sir John Kotelawela was a party to this. He also told me that Mr. Dudley Senanayake had been spoken to and had reluctantly agreed. He also said that Mr. Sydney de Zoyza was said to be a party to this. Also Mr. Royce de Mel was said to be party to this."

We reject the suggestion of Mr. Kannangara and Mr. Ponnambalam that Lionel Senanayake was instigated by Mr. Bandaranaike and Mr. S. A. Dissanayake to make this statement. He did not strike us as a person who would agree to commit such a dishonest act as to implicate persons falsely on another's suggestion.

It is true that it was only in his statements of 16th and 19th February respectively that Stanley Senanayake mentioned that the 4th defendant had told him about the 5th and 6th defendants being in the plot, and this fact was brought out in cross-examination. But it is clear as can be that Lionel Senanayake mentioned their names on the morning of 28th January. It is also true that Stanley Senanayake mentioned in his first statement made on 28th January that he met the 1st, 2nd, 3rd, 5th and 6th defendants on the 27th night when, as he said, he was taken to 14, Frances Road, Wellawatte. We have not overlooked Mr. Ponnambalam's point that, in spite of mentioning these defendants in this connection, Stanley Senanayake had not stated that the 4th defendant told him on the 26th of the 5th and 6th defendants being in the plot.

As to whether the 4th defendant ever actually used the words " to overthrow the Government " or even " change the Government " when speaking to Stanley Senanayake may well be a matter of doubt. The former is the expression used by the two brothers in reporting their fears to Mr, Kularatne, as far as Mr. Kularatne could remember, while Lionel Senanayake thought the word was " change" and not " overthrow". But Mr. Ponnambalam, in cross-examining Stanley Senanayake, obtained the admission that Stanley Senanayake did not in his statement say that the expression " overthrow the Government " was used by the 4th defendant. The passage in the statement which was put to the witness by Mr. Ponnambalam was as follows :-" D. I. G. told me that there was a scheme to arrest the Leftist leaders and the Ministers and he asked me where the Ministers resided. I told him where they resided. I asked him ' Is the I. G. aware of this or has he been informed.' Mr. Dissanayake said that he would inform the I. G. of this. I was thoroughly shaken when D. I. G. spoke of the scheme to arrest the Leftist leaders and the Ministers. I understood this to .mean a plan to overthrow the Government. When I told him ' Is I. G.

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aware of this or has he been informed ' it was an attempt on my part to stop the scheme from going further." It has thus been shown that it was Stanley Senanayake's inference, and not the 4th defendant's words, when the phrase " overthrow of the Government" was used later. But it is plain that an impression of a grave step involving the Government and Ministers was made on the mind of Stanley, which he conveyed to Lionel Senanayake, and they both conveyed this impression to Kularatne who conveyed it to Abeykoon.

Mr. Kannangara suggested to Lionel Senanayake that he deliberately implicated Sir John Kotelawela and Mr. Dudley Senanayake at the instance of Mr. Bandaranaike and C. I. D. officers, after Stanley Senanayake had agreed to fall into line. There was an implied suggestion that Stanley Senanayake had also allowed himself to be used as a tool in order that these two persons may be implicated falsely. The passage in his statement which immediately follows was elicited by Crown Counsel with our permission: " I was aware that I. G. Police would not be a party to any scheme to arrest the Ministers. To continue, I asked D. I. G. how he proposed to carry out this scheme. He said that there was a big organisation behind this and Sir John Kotelawela was in it and also Mr. Dudley Senanayake who was reluctantly in it and that there were even higher people in it. I am asked what I understood by ' higher people '. I did not give this much thought at that time."

Perhaps in order to get over this difficulty created by some of the matters mentioned in the statements of the two brothers, Mr. Kannangara suggested to Lionel Senanayake that he had met his brother at Temple Trees on the 27th night and compared notes or decided on a common version.

On the evidence of Lionel and Stanley Senanayake and Mr. Kularatne we hold without hesitation (1) that Kularatne was informed by the two Senanayakes of a plot to overthrow the Government that night;

(2) he was given the names of Sir John Kotelawela, Mr. Dudley Senanayake, the 5th defendant and 6th defendant as parties to the plan, and of the 4th defendant as the informant of Stanley Senanayake;

(3) he was told of the proposed arrest of Ministers and Leftists. He was probably given more details but it is not necessary to decide what they were. His immediate reaction was to see that his information reached the Inspector-General of Police, and for this purpose he went to the Orient Club where he arrived about 4 p.m. The Inspector-General of Police arrived there only about 5 p.m., and Kularatne, who had meanwhile gone to Sravasti and returned to the Orient Club, spoke to him.

Lionel Senanayake said that he was told by his brother that the Army was involved in the plot, and that Kularatne was also informed of this. Mr. Bandaranaike said that he was told by Abeykoon that Kularatne had mentioned the Army as being involved in it. Mr. Abeykoon, however, does not bear out Kularatne or Bandaranaike on that point.

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In our view it is not a very significant discrepancy in the versions of Abeykoon and these other witnesses respectively. Another discrepancy pointed out by Mr. Ponnambalam is between the evidence of General Wijekoon and Mr. Bandaranaike as to whether the former was told by the latter that the Army was involved. Mr. Bandaranaike says he informed General Wijekoon that night that they had the information against the Army and Wijekoon said that he could not believe that. Wijekoon's evidence is to the contrary, and he was happy that night because the Army had remained loyal.

Kularatne has said that he conveyed all the information he had to the Inspector-General of Police. The latter has stated that the information he received was (1) there was a plot to overthrow the Government that night (2) Ministers were to be arrested (3) the 4th defendant was one of the prime movers (4) Stanley Senanayake was his informant, though Mrs. Stanley Senanayake had sent for him. The Inspector-General summoned Stanley Senanayake by telephone to the Orient Club and spoke to him alone. Senanayake told him he could not give any information because he was afraid of reprisals, and when asked whether any Army personnel were in it the only reply was " you do not know your men."

It is common ground between Abeykoon and Stanley Senanayake that the latter gave no information when the former questioned him. Senanayake's explanation is that he thought that Kularatne had apprised Abeykoon of the position, and he also felt that he might be penalised if he directly made a charge against the 4th defendant without evidence to support it. Whether he told Abeykoon or not that he was going to inform the 4th defendant that he had been questioned by the Inspector-General is a matter of dispute between them, but Senanayake said that he did go to the 4th defendant. The 4th defendant has said that Senanayake came and told him at about 5.30 p.m. that he had been asked by the Inspector-General what the trouble was going to be in Colombo that night. The 4th defendant's version is that Senanayake told him that his brother and Kularatne had caught him unawares, and that after questioning him Kularatne went on his own to inform the Inspector-General ; that he had let the 4th defendant down, but at the same time informed him that he had told the Inspector-General that the 4th defendant was doing nothing more than getting ready for the orders he and Senanayake had received from the Inspector-General ;and the Inspector-General had told Stanley Senanayake that he would get S. A. Dissanayake, D. I. G., C.I.D. to check on that. Stanley Senanayake's version is that he did inform the 4th defendant that the Inspector-General had questioned him at the Orient Club about this matter. He explained that his idea in informing the 4th defendant was to deter him from proceeding further. We are aware, from the evidence of what happened later that evening, how the 4th defendant reacted to the attempt of Inspector Kandiah of the C .I. D. to meet Stanley Senanayake.

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We are satisfied that the Inspector-General did send for the D.I.G., C.I.D., after sending Stanley Senanayake away, and asked him to check upon the information which Kularatne had given, and contact him at the Club. It was while he was playing bridge at the Club, waiting for further information from the D.I.G., C.I.D., that he got the summons to go to Mr. Bandaranaike's residence at about 7.15 p.m.

Mr. Ponnambalam relied on the conduct of the Inspector-General as demonstrating that he could not have been told anything about the overthrow of the Government by Kularatne. If he had, ran the argument, he would not have sent Stanley Senanayake away, he would have insisted on Senanayake answering his questions, he would have sent for Kularatne and confronted Senanayake with his father-in-law so as to get him to talk ; and the omission to do any or all of these things showed that the Inspector-General knew of the intention of the 4th defendant to arrest Mr. Bandaranaike if the Opposition leaders were arrested, and was happy to look on while Mr. Bandaranaike was being arrested. On the other hand, this argument does not explain why the Inspector-General sent for the D.I.G., C.I.D., and asked him to check up on the information : nor does it meet the evidence of Lionel Senanayake, Kularatne and Abeykoon who say, and whom we believe on this point, that they were indeed informed of a plot to overthrow the Government and that the source of that information was Stanley Senanayake.

Certainly the Inspector-General could have done far more than he himself claims to have done. He might well be described as having played a very inactive part in foiling the plot about which he had been told. Apart from telling his D.I.G., C.I.D. about it, he did nothing more- than continue to play bridge and wait for more details to be brought to him : he left the bridge table only when Mr. Bandaranaike ordered him to leave it. But the explanation is obvious. He was even more ignorant of the ways of preventing or detecting crime than the newest recruit to the Police Force. He was the Head of that Force, but he knew as little as any other Civil Servant who might have suddenly found himself elevated to that position without any previous experience in that Force. He himself confessed that though he knew a good deal about the administration of a Government department, he knew nothing of Police work. His inaction alarmed Kularatne, and the latter was disturbed that the Inspector-General was playing bridge at 6.30 p.m. instead of going to Temple Trees to inform the Prime Minister.

It was only after the Inspector-General arrived at Mr. Bandaranaike's residence at about 7.30 p.m. that he was made to realize the urgency of the situation. Mr. Bandaranaike has said that he conveyed Mr. Salman's information to the Inspector-General on the latter's arrival, and the Inspector-General informed him that he had received some information of the same type. The Inspector-General also informed him that he was awaiting confirmation after verification by the D.I.G., C.I.D. According to the Inspector-General, Mr. Bandaranaike told him of having

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received information about an overthrow of the Government and the arrest of Ministers. Certainly Mr. Bandaranaike took a graver view of the situation than the Inspector-General seems to have done, for he told the Inspector-General to direct the D.I.G., C.I.D. to proceed to Temple Trees, and the Inspector-General went there himself. It was 8 p.m., according to Abeykoon, by the time these two Police officers and the Superintendent of Police, C.I.D. had assembled at Temple Trees ; and Mr. Bandaranaike said he also went there at about 8.30 p.m.

Mr. Ponnambalam argued that Mr. Bandaranaike's information was only to the effect that he was to be shot and killed, and nothing had been told him of any danger to the State. We draw no such conclusion from the evidence either of Mr. Bandaranaike or the Inspector-General of Police. Though Mr. Bandaranaike sent for Inspector Amarasekera of the Colpetty Police and asked for extra security in respect of his residence, that is not all he did. His conduct in getting the Inspector-General of Police and the D.I.G., C.I.D. to go to Temple Trees without delay, and in going there himself, shows that he regarded the information he had received as something which merited the instant attention of the Prime Minister. We cannot see any undue delay in his going to inform the Prime Minister. If there was any delay which might have been avoided, it was due to the action of the 4th defendant in getting Vandendriesen to telephone to Mr. Bandaranaike as though he were a "Mr. Walker". Mr. Bandaranaike waited to receive "Mr. Walker" who said he was coming to see him, but who failed to keep the appointment.

Perhaps this is an appropriate stage at which to set out the activities on 27th January of Mr. Bandaranaike, who was thought by the 3rd defendant and the 4th defendant to be planning to seize power on that same night. His evidence as regards his movements that day, and no evidence to contradict it has been placed before us, is that he left Colombo about 9 a.m. that morning after having worked throughout the previous night at the Finance Ministry Office. He held a meeting at Malwana and returned home at about 2.30 p.m. He then slept till about 6.30 or 7 p.m. and only woke up because his wife told him of Salman's arrival with some important information.

Mr. Bandaranaike said that when they reached Temple Trees the Prime Minister was told of the information that had been received. The Navy, Army and Air Force Commanders were summoned to Temple Trees. Fifty Naval men were stationed in premises opposite Temple Trees. All the Ministers who were in Colombo were telephoned to and asked to come to Temple Trees. The Inspector General of Police issued instructions to all Police stations that Police officers should not carry out any unusual orders without his personal authority, and the Police Depot was instructed not to send out any men ; and he also summoned several Police officers who were in Colombo to Temple Trees.

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Among them was Lionel Senanayake, who was brought by Assistant Superintendent of Police Dickman at about 9.30 p.m. He was then questioned for a few minutes at a time by the Inspector-General of Police, the D.I.G., C.I.D., the S.P., C.I.D., Mr. Bandaranaike and the Prime Minister, but his statement was ultimately recorded at 5.40 a. m. while he was being interrogated by Mr. Bandaranaike and others. Mr. Ponnambalam asked why he was not interrogated, and why his statement was not recorded, earlier. Mr. Bandaranaike has explained that it was because they were too busy thinking of measures to foil the conspiracy and Lionel Senanayake's formal questioning could wait: they were more anxious to question Stanley Senanayake, and an order for his arrest was made by the Prime Minister. This is easy to understand, seeing that he was the source of most of the information they had received.

Stanley Senanayake was brought by his father-in-law to Temple Trees some time after midnight while those who had gathered there were at dinner. From 1.30 a.m. to 4.45 a.m. he was questioned by Mr. Bandaranaike in the presence of the Prime Minister, two other Ministers, the Inspector-General of Police and the D.I.G., C.I.D., while the tape recorder was being played. It was suggested to Kularatne by Mr. Kannangara that on their journey to Temple Trees Kularatne made every endeavour to induce his son-in-law to relate a false story, but that Senanayake refused to do so. Suggestions of this sort have been made to many of the prosecution witnesses, no doubt on instructions. We think that Counsel might well have paused at times to consider whether certain suggestions were not unworthy of the Counsel who made them.

Stanley Senanayake's condition, on his own version, was a state of intoxication. Mr. Bandaranaike, however, thought that though he had taken liquor he was not drunk ; he was sleepy and tired, but the slowness of his faculties, which existed at the commencement of the questioning owing to the liquor he had drunk, diminished as time went on, after he had drunk several cups of coffee. He gave at first a narrative of completely irrelevant facts and created the impression that he was reluctant to come out with the truth ; he was not forthcoming in his answers, and held back a number of things which had to be got out by questioning.

A point sought to be made by Mr. Ponnambalam was that there was no manual recording of the first statement made by Stanley Senanayake because he was not coming out with the story which his interrogatora wanted. It was submitted that he was receptive to suggestions made by his questioners, and in support of this his mention, after he had left the interrogation room, of meeting some of the defendants at 14, Frances Road, Wellawatte, was cited. Much time was spent in eliciting the circumstances under which this meeting was mentioned by Stanley Senanayake. We have considered the charges of fabrication of evidence made against the Police also in this connection, and the allegation that they coached both Stanley and Lionel Senanayake. We have also remembered the contradictions which appear in the evidence of Stanley Senanayake,

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Tyrell Goonetileke and Mr Bandaranaike. We are satisfied that this meeting was mentioned by Stanley Senanayake to Goonetileke before the latter commenced to record his statement, in the presence of Mr. Bandaranaike who was walking through the room at the time. It was later recorded, in the proper sequence of events, by Goonetileke.

We can appreciate the anxiety of those who were trying to ascertain the facts quickly from Senanayake, for they had to decide what action should be taken. This, we think, was the reason for dispensing with manual recording at that stage and for relying solely on the tape recorder. The situation in which the authorities at Temple Trees found themselves was without precedent. Mr. Bandaranaike said that from the time he arrived at Temple Trees until midnight they were mainly taking measures to ensure the safety of the State rather than to investigate the alleged offence. A decision was taken at about midnight that the Cabinet should have overall direction and control of the entire investigation, while he was to carry on the interrogation on behalf of the Ministers, some of whom attended at the interrogation of witnesses. Investigations went on almost continuously till February 2nd. Although the Police also played a part , it is apparent that Mr. Bandaranaike largely controlled the course of the inquiries. There was no legal basis for much that was done, including the arrest of the 4th defendant and Johnpulle that night. But in times of extreme emergency " the State may be compelled by necessity to disregard for a time the ordinary safeguards of liberty in defence of liberty itself, and to substitute for the careful and deliberate procedure of the law a machinery more drastic and speedy in order to cope with the urgent danger." Provincial Administration v. Honiball [1 (1942) A. D 1 at p. 14.].

Apart from Kularatne and Salman, there is what Mr. Ponnambalam termed " the third channel" by which information reached the higher authorities, namely, Assistant Superintendent of Police (Transport) D. S. S. Jayatileke.

Jayatileke said that in accordance with a request made three or four days earlier, he saw the 4th defendant in the latter's office on the morning of 27th January. The 4th defendant then asked him for about fifteen vehicles to arrest Communists on the 27th night; he also told Jayatileke that he would personally call for the vehicles that night. It was put to Jayatileke in cross-examination that he went to the 4th defendant of his own accord because his D.I.G. Wambeek had not granted him leave, and that Stanley Senanayake had ordered the transport earlier and he only informed the 4th defendant of that. He denied these suggestions, and he has contradicted the 4th defendant's evidence on these matters.

Jayatileke is supported by Inspector Wickramasinghe of the Central Garage, who has said in evidence that Jayatileke told him at about 12.30 p.m. that day to have as many vehicles as possible ready as they would be required by the 4th defendant that night. Wickremasinghe accordingly ordered the drivers to have their tanks filled and to stand by.

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Jayatileke said that he also telephoned S. A. Dissanayake, D.I.G., C. I. D., about the same time and told him of the 4th defendant's requirements regarding transport and the orders he had received from the 4th defendant, as he thought that the C .I .D. may also require transport.

Jayatileke has spoken of two conversations which he said he personally had with S. A. Dissanayake at about 1.30 p.m. and about 7 p.m. respectively. He has admitted that no mention was made by him of these conversations when he made his first statement on February 7th, but these conversations were not a material part of the operation which he then disclosed. Although Jayatileke paid that at about 7.00 p.m. he countermanded the order he had given Inspector Wickremasinghe, the latter has contradicted him on this point.

Jayatileke made a second statement on 19th April 1962 (1D2) in which he referred to a telephone conversation with S. A. Dissanayake at 6.30 p.m., but Mr. Ponnambalam has pointed out that this time was originally typed in the statement as " 10.30 p.m. " and altered in ink to " 6.30 p.m." There are other alterations in this statement and the handwriting in which those alterations have been made has been identified as that of Mr. S. A. Dissanayake.

After giving the defence the full benefit of these alterations and omissions there still remains the outstanding fact, which we hold to have been established, that the 4th defendant told Jayatileke that he wanted Police vehicles that night in order to arrest Communists, and we are satisfied that Jayatileke conveyed this to S. A. Dissanayake early that afternoon.

It is more than likely that when S. A. Dissanayake on being told by Abeykoon that evening at the Orient Club about the information he bad received from Kularatne, informed Abeykoon that he had similar information, he was referring to the information he had received from Jayatileke.

The prosecution did not claim that Jayatileke was an informant in the sense that Stanley Senanayake was. But it is undeniable that Jayatileke became aware of a step which the 4th defendant intended taking on the night in question, and conveyed what he had learnt to S. A. Dissanayake. In that view, Jayatileke was an informant whose only knowledge was derived from what he claims to have been told him by the 4th defendant on the morning of the 27th January.

The question whether a witness was an accomplice of a person charged with an offence has generally to be decided upon the assumption that the offence was actually committed. Such an assumption may ultimately on consideration of all the evidence turn out to be incorrect. Mr. Ponnambalam invited us to regard Major Rajapakse as an accomplice in the very special sense that he was aware of and participated in what

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was a lawful plan to prevent the establishment of a dictatorship by Mr. Bandaranaike. We shall consider here the question whether Major Rajapakse was a willing associate with the defendants in whatever plan they were preparing, whether or not it was illegal.

We have here to repeat briefly Rajapakse's own version of some events relevant to this question. The 3rd defendant spoke to him on the night of the 26th January of a plan to overthrow the Government, and asked him whether he would join in the plan, and he agreed on condition that its details would be revealed to him. His professed object in adopting this attitude was to ascertain as much as possible about the plan in order that it may be foiled. The 3rd defendant arranged for another meeting during the afternoon of the 27th, but the arrangement was cancelled by means of a telephone call from the 9th defendant. Subsequently Rajapakse attended the two gatherings of Army officers at Elibank Road and later at Kinross Avenue. At the latter place he became aware of the manner in which the 2nd and 3rd defendants proposed to effect their object, and of the signal for carrying out the operation. He himself was given an order to send armoured vehicles to Queen's House and to organise a road block of armoured vehicles at the Kirillapone entry into the city of Colombo, the purpose of the road block being in his opinion to prevent interference from troops then stationed at Panagoda. According to Major Rajapakse, he was fully aware of the illegality of the orders given to himself and to other officers, but he pretended to accept the orders with of course no intention of carrying them out.

Rajapakse states that, on his return to Rock House camp with Major Joseph the 14th defendant, he decided upon a counter-plan which he intended to put into effect if and when he received a signal that the operation was " on ". In order to have Joseph out of the way, he sent Joseph upon a visit to the men of his unit working in the Harbour. His alleged plan to foil that of the conspirators was to send armoured vehicles to Queen's House and to Temple Trees to prevent entry by what one might term " Rebel forces ", and to deploy armoured vehicles at important points especially with a view to prevent utilisation by the conspirators of Army Units stationed at Echelon Square.

To put the matter simply, Major Rajapakse wanted us to believe that he expected single-handed and at very short notice to be able to foil the plans of the conspirators by the deployment against them of the sources of the Armoured Corps. We must note in this connection that in fact a strong detachment of the Armoured Corps was on this night engaged in unloading cargo at the Port of Colombo.

Although it was routine practice that the whereabouts of the Commander of that Regiment at any time were always known at Regimental and Army Headquarters, he made no attempt to contact Colonel Attygalle or any other high-ranking officer, nor did he warn even one of his own officers to be prepared for emergency action. His explanation for the omission to inform Colonel Attygalle, or directly or indirectly

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General Wijekoon, of the plans which the 2nd and 3rd defendants proposed to carry out in the early hours of January 28th was in our opinion entirely unsatisfactory. To lay minds, his expectation that the conspiracy could be foiled by his alleged counter-plan was extremely optimistic.

Now, if Major Rajapakse's attitude to the alleged conspiracy was that of a spy, it is difficult to understand why he failed at this stage to give any hint of the knowledge which he possessed both as to the identity of some of the conspirators and of the plans they had in mind. If he had indeed been a spy who had pretended to participate in the conspiracy only in order to obtain information which would help to foil the plans and to reveal the identity of the conspirators, the time for action and for revelation had surely arrived when Rajapakse was sitting at his desk between 11 p.m. and midnight on the 27th. Rajapakse could at the time have no expectation of being able to gather any further information concerning the alleged plan, for on his own version the only further step he could anticipate was the issue of the " on " signal to carry out orders already given. Except therefore in the possible event that the whole operation may be cancelled, Rajapakse already possessed all such information concerning the conspiracy as could possibly come to bis knowledge. Nevertheless this professed spy kept the information securely locked up in his breast in the face of a conspiracy which involved the Commanders of several Army Units then stationed in Colombo, he failed to enlist any military aid to oppose the conspirators. According to him, he did not even intend to invoke any effective aid if he received the " on " signal, save for some nebulous idea of making contacts with units at Panagoda. He could produce no note in proof of his claim that he proposed to foil the conspiracy by means of a counter-plan.

Shortly after 11.30 p.m. Colonel Attygalle phoned Rajapakse to convey an order that the Army Commander wanted three extra men sent to Temple Trees, and he phoned again about midnight with an order for Rajapakse to come to Temple Trees with three armoured cars and three officers. Very shortly after that the 3rd defendant is alleged to have phoned and stated " Hold Fast Off ". The vehicles and Rajapakse arrived at Temple Trees about forty or forty-five minutes after midnight, but not before Colonel Attygalle had twice impatiently called Rock House Camp to inquire about the delay.

At Temple Trees Major Rajapakse was briefed to effect the arrests of the 4th defendant and Assistant Superintendent of Police Johnpulle and either to arrest or to bring to Temple Trees Mr. Stanley Senanayake. At this time he met both Colonel Attygalle and General Wijekoon. By mere chance as it were, because of a decision to arrest the 4th defendant, Rajapakse was present at Temple Trees when measures were being taken with the obvious object of foiling the alleged conspiracy and of tracing the conspirators. This was his second important opportunity both to

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assist the authorities in their object and to win credit for himself as an efficient spy. But again he failed to reveal the important information which he possessed.

In the statement of Rajapakse recorded at Temple Trees on the night of 29th January he gave five reasons why he did not make a prompt revelation on his arrival at Temple Trees, and we shall deal lastly with the first of these. One was that he had some thought of keeping in further touch with the conspirators in order to become aware of any further plans. In other words, even though the existence of the conspiracy had already been revealed to the authorities, he proposed without their knowledge to do some further spying for their benefit. This seems to us to be an absurd reason for the failure to assist the authorities immediately with vital information. There would have been no difficulty in disclosing that information at Temple Trees and yet being in a position to gather further information. Then he said that there was no urgency to make any disclosures because the 3rd defendant had already informed him that " Hold Fast" was off. We think that Mr. Bandaranaike would have been amazed if Major Rajapakse had at 1 a.m. on the 28th said to him " Sir, I have vital information of names and plans, but I shall tell you about them in a day or two since it is not urgent." His next excuse that he never had a proper opportunity of conveying his information to Colonel Attygalle at Temple Trees does not bear examination, and does not require a statement of our reasons for its rejection.

There is some validity only in the first of the excuses put forward by Rajapakse, namely that in a conversation with Mr. Bandaranaike the latter remarked that he took a poor view of the conduct of Mr. Arndt who had only disclosed his participation after the Government had gathered information from other sources. But even this excuse for silence shows only that Rajapakse's solicitude for his own skin completely overshadowed his professed loyalty to the Government and his professed purpose of acting as a self-appointed informer ; if he was so easily deflected from the path of rectitude, it is difficult to believe that he had indeed to tread that path. On his own admissions, he deliberately refrained from making any revelation between 10.30 and 11.30 p.m. on the 27th, and that for no valid reason. In our opinion, his failure to make any disclosure a few hours later at Temple Trees was equally deliberate and equally inexcusable.

The circumstances in which Major Rajapakse ultimately did make a statement are relevant to the matter under discussion. He met Colonel Attygalle after noon on Sunday the 28th and had lunch with him. Again he met his Colonel at about 10 p.m. that night and was with him for some hours after midnight of the 28th. According to him he made some faint effort to tell Attygalle what he knew but there was no suitable opportunity for a disclosure, partly because other officers were also about the place. Here again we do not think the excuse for non-disclosure is at all credible.

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We accept the evidence of Colonel Attygalle that on the morning of Sunday the 28th Rajapakse reported to him a remark alleged to have been made that morning by Capt. Jayakody the 10th defendant about a move to " spring " the two Police officers then in custody at Welikada. Here then was an occasion when in fact Rajapakse did disclose a matter concerning the alleged conspiracy which must at the time have seemed to him quite important. It was surely a suitable opportunity for him to mention to Attygalle the much more incriminating and important knowledge concerning the 3rd defendant's talk on the Friday of a military dictatorship and the 3rd defendant's orders on Saturday night in preparation for a Coup d'etat.

In our opinion Rajapakse's ultimate guarded disclosure to Colonel Attygalle on the morning of the 28th January was prompted purely by self-interest. Major Joseph of his own Regiment had been questioned on the afternoon of the 28th at Army Headquarters, and Rajapakse says that he became aware through Colonel Attygalle that Major Joseph when questioned had tried to protect himself from implication by stating that he had spent much of his time on the 27th in Rajapakse's company. Rajapakse surely must then have realised that he himself was in imminent peril. Had Joseph by some chance admitted his own presence and that of Rajapakse at Kinross Avenue, then surely Rajapakse would immediately have been summoned for questioning. Considering that suspicion had apparently arisen concerning Joseph, his next in command, the probability that similar suspicion would arise concerning himself must have been quite apparent to Rajapakse. If his association with the 3rd Defendant had been disclosed to the authorities by anyone other than himself, he would certainly have been regarded as a conspirator. In our opinion, the circumstances point strongly to the probability that this was why Rajapakse decided that it would be dangerous for him to keep silent any longer.

The statement which Rajapakse did make on 29th January contains intrinsic confirmation of our opinion that it was fear and the need for self-preservation which moved him to disclose his knowledge. The statement commences with a lengthy narrative concerning past events unconnected with the events of the 26th and 27th, concerning Rajapakse's past fear and suspicions of Catholic Action, and tending to impress his listeners that he himself was a devout Buddhist, loyal to the administration. It also mentions the names of important officials who, according to the tenour of the narrative, might be expected to certify to his own loyalty. All this was quite unnecessary, unless what was uppermost in Rajapakse's mind was the urgent need to ward off suspicion against himself. We doubt whether he would have made any disclosure if he could have remained silent without grave risk to himself.
In view of the matters we have discussed above we do not find it necessary to consider in this context the pros and cons of Rajapakse's claim that he would not have been suspected because he was known to be a

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fervent Buddhist, always suspicious of Catholic Action on the part of Army personnel, and because he had a reputation in the Army for intense loyalty to his Religion and to the Government of the time. This claim is at the least inconsistent with some evidence (which we prefer not to mention) indicating that Rajapakse found quite congenial the company of Joseph, a Catholic officer whom he professes to have distrusted. Even if there be any merit in this claim which he has made, Rajapakse's failure to make any disclosure prior to 29th January despite the numerous opportunities he had and should have taken, compel us to the conclusion that at the least it would be unsafe, and unfair to the defence, to treat him as being innocent of willing participation in the 3rd defendant's plans. We shall therefore treat his evidence as that of an accomplice in any such plan as may have been contemplated by the 3rd defendant

We have now to consider whether Stanley Senanayake should be regarded as an accomplice.

According to his own version of events, Senanayake was informed by the 4th defendant on Friday 26th January of the alleged plan to arrest Ministers and others and to overthrow the Government. He carried out the order of the 4th defendant to summon a conference of gazetted officers at his office for 6 p.m. on the 27th, having every reason to suspect that the conference would be a step in furtherance of the plan. He spent the evening of the 27th in the company of persons alleged to be conspirators, making no attempt to remove himself from that company. When sent for and questioned by the Inspector-General of Police at the Orient Club that evening, he declined to disclose information. On his own evidence he was a confidant of the 4th defendant; so that despite his denials, it was highly probable that he was assigned an important part in the alleged plan. It was clear that Senanayake did all he could to avoid C. I. D. officers after he heard on the 27th evening that they were in search of him. He also avoided going to his own home.

The circumstances mentioned above can well lead to the suspicion or the inference that Stanley Senanayake was indeed a guilty associate of the 4th defendant in the conspiracy to which he spoke. But there is much evidence tending to show that despite his knowledge of the alleged plans he was not a willing participant.

Stanley Senanayake repeatedly maintained at the trial and in the statements made earlier that he was from the outset anxious that the Inspector-General should know of what was supposed to be afoot. He was worried considerably by the knowledge which he possessed, and he was uncertain as to what should be his proper course of action. It is inherently probable that Senanayake was thus worried ; that was only natural if he was told of a plan, either to overthrow the Government or else to arrest Mr. Bandaranaike and Mr. N. Q. Dias. In this situation he decided to consult his brother, Lionel Senanayake, who though junior in rank was a police officer of longer standing and the elder of the two brothers. Despite the very strenuous efforts of the defence to persuade us to the

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contrary, we are satisfied that Stanley Senanayake did in fact go to his brother's house at Mount Lavinia in the night of the 26th and there disclose to his brother some knowledge in hi? possession. That such a disclosure was made is inherently probable, at the least for the reason that, whether or not Stanley Senanayake was an accomplice, either anxiety or temptation prompted him to impart important and exciting information to his brother, himself a police officer.

Lionel Senanayake was the Headquarters Assistant Superintendent of Police of the Western Province (Central) Division and resided in Mount Lavinia. His evidence was that he spent the evening of the 26th January with his wife at a Nadagama held in Homagama. On the return journey he visited the Homagama Police Station which was within his division. This visit at 9.15 p.m. was recorded in the Officers' Visiting Book (P34) of the Homagama Station. On his return home rather late, he found his brother Stanley and the latter's wife in bis house. Stanley then told him of the 4th defendant's talk that day: of a plan to arrest Ministers, Leftists and others, and the 5th and 6th defendants were involved. Stanley was worried and in doubt as to what he should do, and the brothers discussed ways of conveying the information to the Inspector -General. Lionel was due to attend a conference of Officers of his division summoned by the 4th defendant for the morning of the 27th, and it was thought that further light might be shed on that occasion on the matters which the 4th defendant had mentioned. He therefore suggested that he would meet Stanley again after that conference for a further discussion. The brothers also decided that Mr. Kularatne would be a suitable intervenient to approach the Inspector General.

The truth of Lionel Senanayake's testimony concerning a disclosure said to have been made to him on the night of the 26th is strongly confirmed by his own subsequent conduct. He stated that, as arranged, he went to his brother's house on the afternoon of the 27th. (Kularatne on his arrival at the house a while later, found him there.) He informed Stanley of orders for arrest of Leftists given by the 4th defendant that morning at the conference of Western Province (Central) officers, and of the order to guard the house of Colonel Udugama. We refer elsewhere to these orders and to the suspicions created by the proposal to guard the house of Colonel Udugama. It suffices at this stage to point to the inherent probability that Lionel Senanayake would have mentioned to Stanley and to Kularatne an order which had earlier roused suspicion and discussion. The 4th defendant admitted in evidence that he did in fact give these orders to Western Province (Central) officers.

Lionel Senanayake was summoned to Temple Trees on the night of the 27th for one of two reasons, or for both; because Kularatne had informed the Inspector-General of his presence at Stanley's house in the afternoon or because he was Stanley's brother. According to Lionel, he did immediately mention in conversation at Temple Trees Stanley's disclosure the previous night that the 4th defendant had spoken of a

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plan to arrest Ministers. Even if we were not to believe him as to what he said at that stage, there is his statement recorded at 5.45 a.m. on 28th January in which he quite clearly imputes to his brother Stanley knowledge of a plan to arrest Ministers, in which the 5th and 6th defendants were involved. It is inconceivable that Lionel would have so compromised his brother unless in fact Stanley had made a previous disclosure to him. It was quite unreasonable for Lionel to make a statement so damaging to Stanley unless he could make it with the confidence that Stanley himself would not, in his own statement, have denied his knowledge of a conspiracy. That confidence Lionel could not have felt, unless Stanley had indicated earlier that he was not a willing party to the alleged plan and that he was anxious that the Inspector-General at least should be informed of it.

In the course of cross-examination, Lionel Senanayake said that he had mentioned various matters in the statement he made at Temple Trees at dawn of 28th January. Among these matters were that his brother had told him that persons to be arrested included Ministers of State; that he had connected some orders given at the Western Province (Central) conference with the story that his brother had related the previous day; that he had " incriminated " Mr. Dudley Senanayake, Sir John Kotalawela and the 5th and 6th defendants; that the whole story was told to Kularatne on the 27th afternoon. The defence did not seek to contradict him as to the fact that these matters were mentioned in the statement. The fact that he did mention these matters, and not the truth of what he mentioned, is important in the present discussion.

The defence sought to suggest a different explanation for the significant fact that Lionel Senanayake's statement at Temple Trees attributed to his brother knowledge of the alleged plan, namely the explanation that while he was at Temple Trees Lionel was somehow made aware that his brother had already disclosed details of a plan, and was thereby induced to make a statement in line with that of his brother. But there is no evidence to support this suggestion. Stanley Senanayake was brought to Temple Trees between 12.30 and 1 a.m. on the 28th, and thereafter he was under continuous questioning until 4.50 a.m. ; the manual recording of his statement commenced immediately after and continued until 7.55 a.m. The manual record was made by Assistant Superintendent of Police Tyrell Goonetileke against whom in particular the defence made numerous allegations of misconduct in connection with the investigation. This officer certainly had no opportunity to converse with Lionel after the close of the oral examination of Stanley. There were present at Temple Trees several officers as to whose honesty the defence were not in doubt, but none of these could support by testimony the suggestion that some person, who had been present during the interrogation of Stanley Senanayake, had engaged in conversation with Lionel Senanayake prior to 5.45 a.m. at which time he commenced to make his recorded statement.

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During Mr. Ponnambalam's closing address many laborious hours were devoted to his attempt to persuade us that the brothers Senanayake were induced during the early hours of the morning of 28th January to make false statements implicating the 4th defendant in particular and through him others, in an imagined conspiracy. So far as Stanley Senanayake was concerned, such inducements could not have taken place during his interrogation; considering that there were present among others the Prime Minister, the Minister of Justice and the Minister of Lands, it seems to us quite incredible that he could have been induced at that stage to make completely false statements concerning a fictitious plot to overthrow the Government. The theory that Lionel Senanayake had about the same time been induced to attribute to his brother incriminatory knowledge of such a plot is equally far-fetched. Any such inducements could, in the defence submission, have been made by Mr. Bandaranaike himself, or on his behalf by the D. I. G., C. I. D., or the Superintendent of Police Attygalle. Upon the evidence there was neither time nor opportunity for these persons to consult together adequately, and then to conceive and put into effect successfully, a scheme to procure fabricated statements from the two brothers. The suggested motive for this fabrication was the allegation that Mr. Bandaranaike himself had planned to establish a dictatorship, and that it was necessary to conceal evidence which might show a purpose on the part of the 4th defendant and others to counter that plan. Our reasons for rejecting that allegation are stated elsewhere in this order, and since (as we hold) that allegation was quite ill-founded, it follows that those who conducted the investigation at Temple Trees on the morning of the 28th January were concerned in the ascertainment of facts, and not in the invention of falsehoods which would protect Mr. Bandaranaike.

We are satisfied that Lionel Senanayake truthfully repeated at Temple Trees information which Stanley gave him on the night of the 26th. The fact that Stanley did reveal that information to his brother goes far to show that he was not in active support of the 4th defendant's plans, or at the least that the question whether the Inspector-General knew of them was worrying him.

The position that Stanley Senanayake was not a guilty associate is supported by the evidence concerning the intervention of Mr. P. de Kularatne. We do not, on this matter, act upon Stanley Senanayake's evidence, which was to the effect that the decision to summon Kularatne was his own decision. What is clear is that Kularatne was summoned by a telephone call to Ambalangoda put through by Kularatne's daughter (the wife of Stanley Senanayake) on the morning of the 27th, and arrived at the Senanayake house about 3 o'clock that afternoon. The opening remark attributed to him when he came upstairs "This is absolute nonsense " indicates that his daughter had already given him some information downstairs. But Kularatne's subsequent conduct leaves no doubt in our minds that Stanley Senanayake did make to him a

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disclosure of a plan affecting the Government. We accept the evidence that Kularatne directed Stanley to phone the 4th defendant and inquire whether the Inspector-General of Police had been informed of the plans, and that Kularatne decided to convey information to the Inspector-General in consequence of his conversation with Stanley Senanayake and Lionel Senanayake.

Kularatne's conduct shows that the knowledge he possessed was of grave import. He awaited the Inspector-General's arrival at the Orient Club, and told him what he knew, and in consequence the Inspector-General sent first for Stanley Senanayake and later for the D. I. G., C. I. D. The Inspector-General apparently had his own reasons for continuing to be at the club. But Kularatne himself, not satisfied with the steps the Inspector-General appeared to be taking, tried to contact influential Government Party Members. Ultimately he did go to Temple Trees with Senator Somaratne, and there undertook to fetch his son-in-law to Temple Trees.

Evidence elicited by the defence satisfies us that Stanley Senanayake was an officer who was honourable and loyal to his Service, his colleagues and his friends. These qualities help much to explain conduct on his part which might otherwise have aroused suspicion. Kularatne, Lionel Senanayake, and officers who met him on the 27th all testify to his worried state of mind on that day, a condition which must reasonably be attributed to the dilemma in which he was placed, when he had to choose between two distasteful alternatives: whether to be silent and thus appear disloyal to the Government, or to speak and thus be disloyal to the 4th defendant who was his superior officer and apparently his trusting friend. Considerations of honour apart, the possible consequences, whether of silence or else of revelation, were in each case grave. We can well understand why it was that in such circumstances he made a reluctant disclosure to Kularatne, but thereafter declined to furnish further information to the Inspector-General.

Much criticism was directed at Senanayake on the ground that his first statement did not disclose all the knowledge of a conspiracy which he claims to have had, and that in subsequent statements he kept on " adding " details as to the alleged plans and persons involved in them But many explanations are available for such conduct. We are satisfied that in his first statement he made a general disclosure as to the conspiracy, but could not in the very trying circumstances recollect the numerous matters of detail which he mentioned later. Considerations of loyalty and even fears for himself can well account for his omission at that stage to reveal everything which he claims to have then known. Although he was cross-examined with severity and even some measure of contempt, he did not respond with any appearance of malice against the defendants On the contrary, he impressed us as a witness who did not relish the role of testifying against brother officers.

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We are satisfied that, if in fact there was a conspiracy to overthrow the Government, Senanayake was not a willing participant in that conspiracy.

Mr. Kannangara drew our notice to matters in regard to which in his submission Stanley Senanayake gave false evidence at the Trial:-

(1) In regard to the order which Senanayake gave on January 16th for the collection of notes and addresses of persons likely to incite strikes, it was argued that Senanayake falsely denied that he had seen the file (19D 64) which contained the collected particulars. Considering that he freely admitted giving these orders and approving the choice of constables for this task, we cannot agree that his denial of seeing the file was false. The particulars in question had to be avail able for use in certain eventualities ; but there was no need for Senanayake to study the file of particulars in advance. If in fact he had actually looked at the file, we should have expected his initials to have appeared on it.

(2) It was argued that Senanayake tried to show that the 4th defendant had ordered the testing of the telephone system on the 23rd or 24th January, whereas in fact the order was given earlier. Even if his evidence as to the date of this order was incorrect, we cannot accept that it was false. What was important was his true evidence as to this testing and not the precise date of the order.

(3) We agree that Senanayake's evidence on some matters was probably false ; his claim that the decision to send for Mr. Kularatne was made by him and his brother on the 26th night, and not by his wife ; his attempt in his letter of 14th February to change the purport of his answers to the Inspector-General at the Orient Club on the 27th January; his denial that the telephone receivers at his office were taken off their cradles because he was anxious to avoid the C. I. D.; his denial that on the 27th afternoon he did not accede to Johnpulle's suggestion to go together to see the Inspector-General. But these are not points in his evidence which injure or incriminate any of the defendants. We have stated earlier our opinion that Senanayake was reluctant on 27th January to disclose his knowledge of the alleged conspiracy, although he was anxious that the Inspector-General should be warned to make inquiries. It is not strange that he made an attempt at the trial to conceal that reluctance, which of course was reprehensible particularly in the case of a senior police officer. But we are satisfied on a consideration of all relevant evidence in the case that he was a witness of truth.

The prosecution moved to lead in evidence the statements made in February 1962 by the 10th defendant to the Police, and by 18th, 19th, 20th and 21st defendants at the interrogation at Temple Trees. The statements in question were -

1, The 10th defendant's statement made on 28th February to the Police,

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2. portions of the 18th defendant's statement made on 19th February,

3. the whole of the 19th defendant's statement made on 20th February,

4. portions of the 20th defendant's statement made on 20th February, and

5. portions of the 21st defendant's statement made on the 19th February.

Considerable evidence was led by the parties after the defence had objected to the production of these statements. We eventually ruled that the 10th defendant's statement to the Police and portions of the 18th defendant's statement made at Temple Trees may be led in evidence, and upheld the objection of the defence to the 19th, 20th and 21st defendants' statements being produced.

Much of the evidence led by the defence on this aspect of the case related to the conditions under which they were confined, first in Welikade Prison, and from the night of 15th February in the Magazine Prison. Mr. Jordan, the Assistant Superintendent of Prisons, whose evidence we accept, spoke to the following matters. The defendants were not allowed to see any visitors till the 27th of February. They were held incommunicado. They were not allowed any letters or newspapers. They were allowed to see their lawyers only from May 1962. They were kept in their cells for over 22 out of every 24 hours. They were taken out of their cells only to have their baths or to go to the lavatory or for exercise, and such exercise was only permitted for 15 to 30 minutes at a time, twice a day. No religious ministration was permitted until 18th March, and then too the defendants were kept in their cells while the religious service was conducted by a priest in the corridor. The cells were obviously teeming with bugs and many complaints were made about this, and also that the sleep of the defendants was disturbed by the rattling of chains on doors and by military guards walking about in heavy boots. There can be no doubt that, in effect, the defendants were subjected to solitary confinement for about a month until they were allowed to see visitors. Some of the restrictions imposed on them were disgraceful. We do not doubt that there was need for strict security, but it seems to us that the totality of the conditions might justly be termed cruel and shameful. The only redeeming feature of that disgraceful episode is that the Crown lawyers did not seek to justify what was done.

On the 19th and 20th of February, the 18th, 19th, 20th and 21st defendants were taken to Temple Trees for questioning and they all made statements there. The 18th defendant, who was acquitted at the close of the prosecution, made a statement which the Attorney-General informed us was not a confession. In view of that fact, his statement had to be judged, differently from the statements of the other defendants,

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for the rule contained in section 24 of the Evidence Ordinance regarding confessions would not apply to admissions. We therefore permitted the portions of his statement which the Crown sought to produce to be led in evidence. Those portions were marked P156 and P156A. The 18th defendant's Counsel was permitted to produce certain other passages in the statement which were explanatory of the portions marked by the prosecution. Those passages have been marked 18D2, 18D3, 18D4 and 18D5A to 18D5C. The reasons for the acquittal of the 18th defendant at the close of the prosecution case appear elsewhere in this judgment.

The 19th defendant was roused from his sleep on the 19th night. Ho had been given a sleeping pill, because he had abscesses which were painful and he had complained of not being able to sleep for 3 or 4 days. He told us that he was not well even when he went to Temple Trees, but be was taken into the interrogation room and questioned from 1.40 a.m to 4 a.m. The 19th defendant's complaint is that he was told by Mr. Bandaranaike that he was bound to answer questions, and he was also told of the new Bill which provided for confiscation of property and severe penalties, and he became scared as a result. At a certain stage he says he got a complete black-out from which he recovered, and Mr. Bandaranaike then told him: " You had better talk now before it is too late."

Mr. Bandaranaike admitted that the 19th defendant was " in pretty poor shape with his face swollen, a black eye, and pimples or boils; he complained that he was ill." He denied that he mentioned the Bill which provided for confiscation of property, a Bill which had been tabled on the 16th of February-only 3 days earlier-but Mr. Bandaranaike admitted that the Ministers who were present at the questioning were full of the Bill and may have mentioned it because they were very interested in it. The 19th defendant also said that when he was previously questioned on the 2nd of February by Mr. Bandaranaike, the latter told him that he was not worried about junior officers who merely carried out orders. Mr. Bandaranaike admitted that he did say such a thing to those whom he questioned on the 19th and 20th February. In his words " I must have told them that I was not really concerned in dealing with people who carried out orders", and again, " I did in fact indicate practically to all the men I questioned that I was not concerned with trying to find fault with or blame any officer who believed he had lawful orders for proceeding to execute them, but with those who had the knowledge that they were engaged upon an unlawful enterprise."

We have thus had from Mr. Bandaranaike himself two admissions with regard to certain remarks made, either by himself or by the Ministers present, to the defendants, which to our minds could be either an inducement, or a threat or a promise, having reference to the charge against the accused persons, proceeding from persons in authority, and which were sufficient in our opinion to give the defendants grounds for believing

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that by making a confession they would gain an advantage or avoid an evil in reference to the proceedings against them. What other effect could the mention of a Bill which provided for enhanced penalties for the offences of which these men were suspected have had on their minds, having regard to the conditions under which they were kept under detention and the circumstances under which they were brought to Temple Trees for questioning ? The defendants may well have felt, on the mention of a Bill of this nature, that it would be better for them to confess and obtain some advantage thereby. It is difficult to explain why the Bill was mentioned at all if the purpose was not to get the defendants to talk. We think it extremely probable that the defendants were in fear for their safety, if not for their lives, when they were taken to Temple Trees: any remarks made to them at the questioning should have been carefully weighed for the effect they might produce on their minds.

The 20th defendant, who was questioned from 4.45 a.m. to 5.55 a.m., said that Mr. Bandaranaike told him about the amendments to the law and the penalties of death and confiscation of property that were being introduced. It may be that the 20th defendant was mistaken in thinking that it was Mr. Bandaranaike who mentioned these matters, when it was in fact one or more of the Ministers.

In the case of the 18th, 19th, 20th, and 21st defendants we hold that not only was the Bill mentioned to them in the course of their questioning, and that such mention could have constituted a threat, but we are also satisfied that Mr. Bandaranaike's statement to them, that he was not concerned with finding fault or blaming any officer who believed he had lawful orders for proceeding to execute them, could have operated as an inducement to them to make confessions. They might well have understood such a statement to have been an undertaking given by Mr. Bandaranaike, that no action would be taken against officers who thought they were justified in acting upon the orders they received.

The 21st defendant's case as to why he made a confession between 6.15 p.m. and 8.15 p.m. on the 19th February was mainly that he had been induced by Mr. Tyrell Gunatilleke, who he said, spoke to him for about an hour in a room in Temple Trees before he went into the interrogation room and taught him what he was to say. The 2lst defendant said that he succumbed to Mr. Gunatilleke's pressure and gave Mr. Bandaranaike the answers that he thought were required. All this he did because he wanted to get out of the inhuman conditions under which he was being detained. As against the 21st defendant's evidence, there is the evidence of Mr. Gunatilleke and Mr. Abeygoonewardena. Their evidence satisfied us that Mr. Gunatilleke did not spend any time at all alone with the 21st defendant, and there was no opportunity for Mr. Gunatilleke to speak to him alone. The 21st defendant also tried to make out that when he left the interrogation room for a short time

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and went into another room, Mr. Gunatilleke followed him there and spoke to him alone. We reject the 21st defendant's evidence on this point, and we prefer to believe Mr. Gunatilleke, Inspector Fareed ans Mr. Abeygoonawardena, all of whom make it clear that Mr. Gunatilleke did not leave the interrogation room during the period that the 21st defendant was absent from it.

In arriving at our conclusion in regard to the 19th, 20th and 21st defendants, we have not overlooked the provisions of section 12 of the Criminal Law (Special Provisions) Act, No. 1 of 1962, by which the burden of proving that a confession was not voluntary has been placed on the defendants. That burden has been discharged upon the balance of probabilities. It is no argument to say that these defendants have not in so many words stated that they were influenced in the matter of making confessions by the threat or inducement which we have referred to. In our view there was such a threat or inducement, and it is not necessary to investigate now exactly what part such threat or inducement played : but that it did influence these defendants we have no doubt. It would be unreasonable to expect the defendants to remember, after all this lapse of time, exactly what threats or inducements were made at each questioning, or to what degree their minds were affected by every remark addressed to them by those sitting round the table. It is sufficient that, the threat or inducement, more likely than not, induced the defendants to make their confessions. " The use of violence and the threat of it are not in any civilized country recognized as legitimate aids to interrogation ; the holding out of hope is equally poisonous, for it is easy for an innocent man awaiting trial to be reduced to despair, and a despairing man may confess to anything in the hope of avoiding the worst. The law presumes conclusively that a confession obtained under such circumstances is valueless ". (" The Criminal Prosecution in England " by Lord Devlin, page 31.) It is no answer to say that Mr. Bandaranaike prefaced or interrupted the making of the statements with a caution that the particular defendant was not obliged to say anything unless he wished to do so. The Privy Council in a recent judgment has made an instructive comment on the value to be placed on such a caution: " Though the appellant understood that he could, if he wished, remain silent he was (on his evidence) made to believe that for the price of his confession he could purchase advantage. When he was cautioned the inducements were not withdrawn. Rather had the time for decision arrived as to whether he would avail himself of the benefits promised " see Sparks v. The Queen[1 (1964) A. C . 964 at 989.].

The 10th defendant's position was that Major Caldera, who was then in charge of the guard at Magazine Prison, spoke to him on several occasions and told him what he was to say before he went before the Advisory Committee on 22nd February. The 10th defendant also said that when he went to the C. I. D. office on 28th February, Mr. Tyrell Gunatilleke

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practically dictated a statement to Mr. Selvaratnam who took down what was dictated as though it came from the 10th defendant himself, and that such dictation was from the record of the 10th defendant's statement made to the Advisory Committee. The 10th defendant's evidence is contradicted by Major Caldera, Mr. Gunatilleke and Mr. Selvaratnam. We are satisfied that the statement made by the 10th defendant on 28th February was his own voluntary statement uninfluenced by Major Caldera or by Mr. Gunatilleke. The Chairman of the Advisory Committee, Mr. E. A. V. de Silva, has said that the 10th defendant insisted on making a statement to the Committee, although he was told that he need not do so. What is more, the 10th defendant after making that statement to Mr. de Silva desired that his statement be recorded again as quickly as possible. These circumstances tend to disprove the 10th defendant's allegations against Major Caldera. There is also the 10th defendant's letter to the Attorney-General (P152) written on 19th June 1962. In that letter he has written " I have already in my statement to the Police made a full disclosure of all facts known to me and there is nothing further which I can truthfully add to those facts." His letter written still later to Lakshman Jayakody (P153) on 1st November, 1963, in which he mentioned that he told the C.I.D. everything, but which he in evidence tried to make out to be an entirely false letter written at somebody's instigation, is further proof that his statement of 28th February was voluntary.

We therefore allowed the prosecution to produce the confession made by the 10th defendant to the Police at the C.I.D. office on 28th February.

The 3rd and 4th defendants have given evidence explaining their conduct and giving their interpretations of many items of evidence on which the prosecution relied to establish the charges of conspiracy. The main plank of their defence is that they jointly formed a plan, not to overthrow the Government but to foil what they thought was Mr. Bandaranaike's object, viz, to seize power and establish himself as a dictator.

The principal events connected with their story of this plan begin on 16th January. On that day, according to 4th defendant, Abeykoon told him about a new Government Bill which was to be passed before February 4th. The object of the Bill was to impose the death penalty on those who had been convicted of conspiracy to murder Mr. S. W. R. D. Bandaranaike. The Bill was to nullify the judgment of the Court of Criminal Appeal which had on 15th January substituted a sentence of life imprisonment for the sentence of death passed by the trial Judge. Opposition to this Bill was anticipated, and in that event all the Opposition leaders in Parliament would be arrested, and Abeykoon read the names of those who were to be arrested from a sheet of paper which he had with him. Abeykoon's informant was said to be Mr. Bandaranaike, and the only persons who knew of this intended move against the Opposition leaders were the Prime Minister, Mr. Bandaranaike and Abeykoon.

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In order to implement this move Abeykoon asked 4th defendant to search for a large house in which the Opposition leaders could be incarcerated, as Mr. Bandaranaike required a house for that purpose. 4th defendant accordingly telephoned to Stanley Senanayake to ask bis officers to search for a large house. 4th defendant said that he had doubts about the Prime Minister being a party to this move, and he therefore asked Abeykoon to verify from her the truth of the story. He was also worried about the safety of the Opposition leaders, because of the disorders that would ensue if such a move were carried out.

Added to this, there appeared in the Daily News of 16th January a letter entitled " Whither Democracy" which worried 4th defendant still more. Admittedly he brought it to the notice of Abeykoon because the letter seemed to encourage the ideals of totalitarianism. In November 1961 Mr. Bandaranaike had, said 4th defendant, made a speech about " a little bit of totalitarianism " and he had also advocated a one-party system of Government as being suitable for Ceylon. 4th defendant gave other instances of Mr. Bandaranaike's actions in 1960 and 1961 of which he disapproved. He also referred to the allegations made in Parliament that Mr. Bandaranaike was trying to be a dictator-allegations which were also made by speakers at public meetings at about this time. 4th defendant's reaction to all these matters was to see 3rd defendant, whom he considered the only person capable of dealing with the situation and for whom he had the greatest admiration. 3rd defendant too said that it was at this time that he himself thought that Mr. Bandaranaike was highly likely to take the opportunity to establish a dictatorship or one party Government.

Accordingly, 4th defendant saw 3rd defendant on the 17th. 3rd defendant has said that 4th defendant told him about the proposed Bill and asked him to look for a military building to house the arrested persons and he agreed; also, that 4th defendant thought this was a move by Mr. Bandaranaike towards becoming a dictator. 3rd defendant, like 4th defendant, referred to charges having been made in Parliament, in the newspapers, and elsewhere by the 17th that Mr. Bandaranaike was trying to be a dictator.

On the 18th Abeykoon informed 4th defendant that his leave, which Abeykoon had hoped to obtain for 2 or 3 weeks from the 19th, had been cancelled. It was on this day that the controversial Capital Punishment Bill was tabled in Parliament.

The cancellation of leave was discussed by 3rd and 4th defendants on the 19th, and 3rd defendant said that 4th defendant thought it sinister ; the question of the arrests and the search for a house was brought up again. 3rd defendant said that he went to Army Headquarters that day to look for a safe place and Abeysinghe took him round. 3rd defendant remembered that day as it was a holiday.

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On the 20th, 4th defendant's daughter got married and the question of the house was mentioned between 3rd defendant and 4th defendant again.

In his search for accommodation for the arrested leaders, 3rd defendant said that he went again to Army Headquarters on the 22nd; he inspected the Magazines with Abeysinghe, and decided that the lecture room and office room attached to the Magazines were suitable for the purpose of housing 20-30 persons.

4th defendant did not inspect the rooms which 3rd defendant had decided upon as being suitable, nor does 4th defendant say that any further communication passed between him and Abeykoon on the subject of a house. 3rd defendant said that he expected 4th defendant's request about a house to be made in due course by the Police to the Army authorities through the proper channels, but we have no evidence that the matter was pursued.

This is a suitable point at which to make a comment on other evidence which touches this alleged search for a house. Stanley Senanayake said that in connection with the conference of 10th January to which he summoned gazetted officers and Officers - in - charge of Police Stations, 4th defendant telephoned to him and said that he wanted a large house in which to keep the detenus who had been arrested a few days earlier over the Radio Ceylon strike. Senanayake said that Inspector Azeez suggested a house in the Borella area and Jebaneson suggested the Naval Commission of Inquiry Office. Senanayake denied a suggestion m de to him in cross-examination that the search for a house was mentioned at a conference held on 16th January or later, or that he was told that the house was required in connection with some political arrests.

Mr. Abeykoon said that while the Radio Ceylon strikers who had been arrested were detained in Welikade Jail, he and N. Q. Dias thought that it would be better to keep them in a private house and he was asked to find a suitable house. He accordingly asked some Colombo Police officers-probably Stanley Senanayake, 4th defendant and others-to find such a house. Doole has said that Senanayake asked him to search for a large house, but he was not sure of the date. K. A. R. Perera also referred to such a request, but we do not think he recollected precisely when it was made.

Explicit evidence has been given by Talwatte who was Officer -in - Charge of Cinnamon Gardens Police Station in January 1962. He said that on 10th January he attended a conference summoned by Stanley Senanayake at which Senanayake asked them to look for a vacant house, though he did not tell them what it was needed for. He looked at a house in McCarthy Road which somebody mentioned, but it was occupied by the Education Commission. He has relied, in fixing the date, on his entries P 24A and P24B in the Information Book of the Police Station. Since this witness said that he did not attend any conferences after that,

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the suggestion made to Stanley Senanayake that the question of a house was discussed at a conference on 16th January or later cannot be accepted. We have discussed this matter at this stage because it is our view that Abeykoon did not mention anything about a house to 4th defendant as late as 16th January. It is therefore unlikely that 4th defendant would have mentioned the need for a house to 3rd defendant on 17th January. We are satisfied that 4th defendant asked Stanley Senanayake to tell his officers to look for a house, but that happened on 10th January, and not on 16th January or later as 4th defendant has tried to make out.

4th defendant said that on 23rd January Abeykoon informed him (1) that the controversial Bill was going through on the 25th or 26th, and (2) that a big strike which was expected to start soon after pay day would lead to trouble, and he wanted 4th defendant to be responsible for maintaining order in the whole of Colombo and the Western Province.

Both 3rd and 4th defendants said that they met on the 23rd night at 4th defendant's house and discussed Mr. Bandaranaike and his possible coup. 3rd defendant said that he mentioned his choice of the office and lecture rooms to 4th defendant at this meeting. He told 4th defendant that Mr. Bandaranaike, who had been referred to as an Ayub Khan, and accused of trying to arrest not only the Opposition but also his own people, might adopt the Ghana precedent and seize the leaders of the Opposition. According to 3rd defendant, 4th defendant described Mr. Bandaranaike as a megalomaniac whom he disliked, and in this respect 3rd defendant agreed with 4th defendant. They discussed the steps that should be taken if Mr. Bandaranaike arrested the Opposition leaders and attempted to seize power. 3rd defendant said that he thought he convinced 4th defendant that they should take steps to thwart Mr. Bandaranaike if he attempted to do so, and he also obtained 4th defendant's permission to discuss the matter with 2nd defendant, as he was not clear as to whether he should go to the Army Commander or not; and he did not want to approach politicians or even the Prime Minister, nor did he want to go to the Army Commander, General Wijekoon. When asked for the reason why he did not go to the Army Commander, 3rd defendant said that it was because Wijekoon admired Mr. Bandaranaike and would carry out any orders he received from Mr. Bandaranaike provided they were lawful orders.

3rd defendant confessed that although he was very fond of Wijekoon, who he felt would carry out his duties, he did not have confidence in Wijekoon as he thought that Wijekoon would go straight to Mr. Bandaranaike and tell him what 3rd defendant might disclose, and Mr. Bandaranaike who wielded a lot of power those days would have purged all of them. When asked to give reasons why he had no confidence in Wijekoon, 3rd defendant gave three instances of what he thought was very weak, though bona fide, conduct on the part of Wijekoon. They are (1) Wijekoon stopped 7th defendant going to Jaffna in March 1961, apparently because he wag a Tamil, (2) ft young officer called

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Naganathan of the light Anti-Aircraft Regiment was not sent to the Estate areas during a strike, (3) an order issued by Wijekoon during the token strike, that troops should not fire under any circumstances. 3rd defendant later withdrew the first reason when it was pointed out to him that Wijekoon was out of the Island at the time in question. He did not, however, withdraw the second and third reasons. 3rd defendant accused Wijekoon of risking the morale of the Army by certain actions of his, but he had to admit that he himself might have brought about the same result by having admittedly issued orders to Army officers behind the back of the General and without the latter's knowledge. In his eagerness to criticize the Army Commander, 3rd defendant seems to have overlooked his own failure to conform to the requirements of discipline and good conduct. 3rd defendant has admitted that on 12th January Wijekoon had addressed all the officers commanding Regiments. He had indicated to them quite firmly that he was dead against a coup of any sort by the Army : that the Army would certainly not act against the established Government; and that he would never support a coup. Yet, although the alleged plan to foil a threatened coup by Mr. Bandaranaike was communicated to several Army officers of junior rank (some of whom he knew even less than Wijekoon), 3rd defendant was not prepared to confide in the Army Commander. This seems to us a strange and inexplicable attitude.

We come now to the 24th morning when, according to 3rd defendant, he gave 2nd defendant the information he had received from 4th defendant, and 2nd defendant at once said 4 Go and tell the Army Commander." 3rd defendant, however, felt that Wijekoon would want to know who the informant was, and Abeykoon would not support him. Apparently 3rd defendant had implicit faith in 4th defendant and accepted all his information as being true, without taking the trouble to check on it with Abeykoon or anybody else. However, 3rd defendant persuaded 2nd defendant to fall into his way of thinking, and they decided not to go to Wijekoon but to go to the Governor-General, though not even to the latter at that stage but only after Mr. Bandaranaike had issued orders to arrest the Opposition leaders. 3rd defendant said that they would not go to the Governor-General earlier because he was unpredictable and they were not certain what his reactions would be.

On the 24th morning, according to 4th defendant, he gave Stanley Senanayake instructions about the strike situation and the need for riot squads, stopping all leave to Police officers, and other instructions connected with the conference to be held that day : he also told him that there would be a conference at 6 p.m. on the 27th to be attended by all gazetted Officers. He said that Stanley Senanayake then suggested that the Training School, Katukurunda, would be ideal as a house, on grounds of security and because of its proximity to a hospital. 4th defendant, on his own evidence, seems to have become quite excited at the mention of "security" by Stanley Senanayake. On being told

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that Abeykoon had mentioned the question of security, 4th defendant took Stanley Senanayake to Abeykoon's office and asked Abeykoon why he mentioned that to Stanley Senanayake. We find it difficult to understand why 4th defendant should have reacted thus to Stanley Senanayake's mention of Katukurunda Training School as ideal for a house, if it was ever mentioned. 4th defendant connected this reference to a house with a request which he said the I. G. P. made to him on 16th January. That was a request to him to search for a large house in which to house the Opposition leaders of Parliament whom, according to what the I. G. P. told 4th defendant, Mr. Bandaranaike intended to have arrested if the Death Penalty Bill was opposed by them. Their names, according to 4th defendant, were mentioned by the I. G. P. after looking at a paper he had in his hand. 4th defendant said that he thereupon telephoned to Senanayake to ask his officers to look for a large house. But the cross-examination of Stanley Senanayake by Mr. Wikramanayake was on a different basis from that put forward by 4th defendant in evidence-see page 3023.

Q. On the 17th the I. G. P. informed Mr. C. C. Dissanayake and yourself of the Government's intention to rush this Bill through Parliament immediately ?

A. Yes.

Q. Of its intention to prevent, to take steps to avoid, any delays in the passing of the Bill ?

A. No.

Q. To get through with the Bill and the execution of the Bill as rapidly as possible ?

A. No.

Q. Mr. Abeykoon told you that there would be the possibility of filibustering ?

A. Mr. Dissanayake told me.

Q. And that if there was filibustering, members would have to be carried out of Parliament ?

A. Mr. Dissanayake told me.

Q. This is what Abeykoon told you and Mr. Dissanayake at the joint conference on the 17th January ?

A. No.

Q. And that if necessary the entire Opposition would have to be carried out ?

A. No.

Q. That was what was told you by the I. G. P. ? A. No.

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Q. That houses were looked for the purpose of housing members of the Opposition who would have to be taken out in that manner ?

A. No.

Q. Persons in the Opposition including Dudley Senanayake, J. R. Jayewardene and anybody else ? A. No.

Q. I am putting it to you the I. G. P. said that the Leftists would have to be locked up in the normal way in the Welikade Jail and the prominent members of Parliament, they wanted houses for their detention, is that not the fact ?

A. No.

Presumably this cross-examination was upon instructions. It shows that 4th defendant's evidence that the search for a house which Abeykoon asked him to make in connection with the intended move against the Opposition leaders was, even until the 24th, known only to the Prime Minister, Mr. Bandaranaike, Mr. Abeykoon and himself is incorrect: it also makes nonsense of 4th defendant's evidence that he rushed from his office to the I. G. P's office on the 24th morning merely because Stanley Senanayake mentioned " security " in connection with a house.

There was nothing secret about the search for a house for the Radio Ceylon strikers, since Police officers had been asked to look for one as far back as 10th January. We do not believe that a house was ever searched for to fulfil any other purpose. Both Abeykoon and Stanley Senanayake have denied that they were ever asked to search for a house in which to place arrested Members of Parliament or that such a matter was discussed by them with 4th defendant, and we accept their denials. But it strikes us as a curious state of affairs if the Head of the Police Department could not discuss this matter with the Superintendent of Police, Colombo, if he chose to, and had to explain his conduct to a Deputy Inspector-General of Police. We do not think that any such situation arose as 4th defendant tried to make out, but it has thrown some light on the attitude of 4th defendant towards his superior. 4th defendant went on to say that Abeykoon told him that the Capital Punishment Bill would not be taken up on the 26th. 4th defendant said that he asked Abeykoon whether the Opposition leaders would be arrested, and 4th defendant has given two different versions of Abeykoon's answer to that question. In examination-in-chief he said that Abeykoon did not answer that question. In cross-examination, several days later, he said that Abeykoon did answer the question by saying " Not only that; it is going to be a little worse; Trade Union leaders, Leftist leaders, potential trouble makers are all going to be arrested .... I do not know what that man (referring to Mr. Bandaranaike) wants to do." The difference in the two answers is significant.

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4th defendant also said that while he, Abeykoon and Senanayake were in Abeykoon's office, Abeykoon gave 4th defendant a typed list with names of Leftist Opposition leaders (i.e., Members of Parliament) on one side and the names of Trade Union Leaders and other troublemakers on the other side. 4th defendant said that he added Philip Gunawardena's name in pencil, while Abeykoon had added in his writing 3 or 4 names including that of Somiwirai Chandrasiri . 4th defendant has sail that this list was given by him to Stanley Senanayake on the 26th and was retained by the latter.

From Abeykoon's office, according to 4th defendant, he and Stanley Senanayake came to 4th defendant's office, and they discussed 4th defendant's fears of Mr. Bandaranaike's move to seize power. 4th defendant said that he and Stanley Senanayake agreed that if Mr. Bandaranaike ordered the arrest of the Opposition leaders, they should stop it. Stanley Senanayake has denied that he ever heard of the Government intending to arrest Leftists in order even to break the strikes: and the first time he heard of any plan was on the 26th January when 4th defendant revealed his plan.

We now come to the 24th evening when 3rd defendant and 4th defendant claim that they met at " Homelea " and this same list was shown by 4th defendant to 3rd defendant. According to 3rd defendant, 4th defendant told him that the Inspector-General of Police had said that the Bill was not going to be taken up, but there were to be arrests of Leftists and Trade Union Leaders. The list had typed on top the words " Detention Orders will be issued "; there were about 40 names, all of Leftists, but he could not say who they were except for Philip Gunawardena, whose name Was added in 4th defendant's handwriting, and some names written by Abeykoon, and the list was not signed.

This list is said to have contained the names of only Leftists, Trade Union leaders and trouble makers. It should not have perturbed 3rd defendant and 4th defendant. They have both said that If the arrest of Leftists was ordered there would be nothing illegal about it. What is more, 3rd defendant said that 4th defendant told him that evening that the Bill was not going to be taken up-if so there would then presumably be no excuse for arresting Opposition leaders-but that the arrests of Leftist and Trade Union leaders would be carried out. Yet they both say that they then formed a plan, the details of which according to 3rd defendant were-

(1) to arrest Mr. Bandaranaike and Mr. Dias the moment they became aware of Mr. Bandaranaike issuing orders to arrest Opposition leaders.

(2) to go (along with 4th defendant and Abeykoon) to the Governor- General with proof of those orders to arrest.

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(3) to watch Udugama, Rajan Kadirgamar, S. A. Dissanayake,John Attygalle and Heyn. The first four and N. Q. Dias were thought to be supporters of Mr. Bandaranaike.

(4) to have the houses of Wijekoon, Barker and Udugama watched so as to prevent Mr. Bandaranaike getting in touch with them and deploying the armed Forces.

(5) a signal to be sent when Udugama left Jaffna.

(6) if Wijekoon, Barker or Udugama stepped out of their houses they were to be told to get in touch with 3rd defendant or 4th defendant, and if they insisted on going out they were to be followed and their positions notified to 4th defendant by radio.

(7) 3rd defendant was to arrange to take over protection of the Governor-General to prevent Mr. Bandaranaike taking action against the latter by arresting him.

Their position is that these steps were to be taken to prevent Mr. Bandaranaike seizing power, and that they expected him to arrest the Opposition leaders and attempt to seize power at night. 3rd defendant has said that on the 24th night they thought that something might happen on the 27th or later. The details given by 4th defendant are not so numerous, but they both agreed that the plan was made between them on the 24th night.

We come now to the 25th morning. 4th defendant told his Personal Assistant 19th defendant to jot down some notes which both of them agree are to be found in the document P19B, but 4th defendant said that 19th defendant was not aware of the meaning of the entries. One item is " Reports re poultry every 2 hours. Final report 12.01 a.m." Another reads " Bring in roosters 1 a.m." and there is another " Wire-break 12.40 a.m." 4th defendant said that the first item meant that Stanley Senanayake was to have the Leftist leaders' movements checked every 2 hours. This document will be dealt with in greater detail elsewhere.

That afternoon 4th defendant admittedly telephoned Vandendriesen who was at the Depot and asked him to bring him 3 Stirling guns. Vandendriesen brought the 3 guns and 6 empty magazines to 4th defendant's house that evening. He was told to take away the empty magazines and bring them filled by the 27th. 4th defendant, 19th defendant, Sol Gunatilleke and Johnpulle went to the Officers' Mess together to play bridge, and according to Gunatilleke and Johnpulle 4th defendant secretly told Gunatilleke that he should arrange to be Duty Officer on the 27th from 9 p.m. (this was later changed by 4th defendant to 4 p.m.). 4th defendant said that he gave this direction openly to Gunatilleke, but we prefer to believe Gunatilleke who struck us as a truthful witness. What is more significant is the fixing of the

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27th on the 25th evening. It was on the 25th night that, according to Brohier, 5th defendant told him that the coup was to take place on the 27th. Mr. Wikramanayake's explanation, during his closing address was that 4th defendant wanted a Duty officer to be at hand for the purpose of the Strike, but we reject this explanation as no strike was, in our view, expected on the 27th. 4th defendant himself has made this clear by his letter P181 of 30th January in which he refers to Abeykoon having told him on the 22nd or 23rd that serious trouble was anticipated from about the 29th, and that it could be caused by a sudden strike of all the unions accompanied by violence. He said in that letter that he was asked to take all possible precautions.

That same morning 3rd defendant claimed to have discussed with 2nd defendant the plan that he and 4th defendant had made, and to have told 2nd defendant to watch for any unusual orders to the Army and also the position at Staff Conferences. He also said that he and 3rd defendant sent for Abeysinghe and told him that Mr. Bandaranaike was trying to seize power and become a dictator, and that 3rd defendant's plan was to go to the Governor - General at the earliest opportunity. When Abeysinghe asked about the Army Commander, he was told by 3rd defendant that the Army Commander would be brought in at the earliest opportunity. Abeysinghe then agreed to his magazine building being used to hold certain persons but was not told who they were, nor was he told that it was planned to arrest Mr. Bandaranaike. The Attorney-General suggested to 3rd defendant that Abeysinghe, whom he did not know well, was brought into the plot in order that they might have control of the ammunition in the Magazines.

On the 26th morning, 4th defendant said he met Abeykoon who asked " Are you ready for tomorrow V and 4th defendant told him that he had summoned a conference of outstation officers for the morning and of Colombo officers for the evening of the 27th. And when he asked Abeykoon if Mr. Bandaranaike was still going to arrest Opposition leaders, Abeykoon said that he was " not sure". When he asked Abeykoon to verify this from the Prime Minister, he was told that she was going to Kataragama and returning on the 28th or 29th. 4th defendant said that he asked Abeykoon for the final list of persons to be arrested as he had given his list to Stanley Senanayake, and Abeykoon said that he would got it from the C. I. D. and have it ready by the 27th. 4th defendant said that he felt Abeykoon was evading his question about the arrest of the Opposition leaders.

4th defendant said that he met Stanley Senanayake at about 11 a. m. and told him that, if an illegal order came, he (4th defendant) would arrest Mr. Bandaranaike and Stanley Senanayake was to arrest N. Q. Dias, and Stanley Senanayake agreed with enthusiasm. It was fortunate for 4th defendant that Senanayake reacted in this way, because as far back as the 24th night, 4th defendant and 3rd defendant had agreed

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without Senanayake's knowledge that this was to be Stanley's role. 4th defendant said that he also told Senanayake to watch N. Q. Dias from the 27th morning, and to choose any personnel he wished for that purpose. 4th defendant said that he told Senanayake that he wanted an officer to watch Rajan Kadirgamar and another officer for various other jobs, and Senanayake suggested Johnpulle and 20th defendant for these duties.

These are not the only matters in which, according to 4th defendant, Stanley Senanayake became an active collaborator. For Senanayake is reported to have asked 4th defendant for gazetted officers and equipment from the Training School, and vehicles from the Central Garage, and to all of these requests 4th defendant said he agreed, though he objected when Senanayake asked for men from the Depot, and only consented when as an alternative Senanayake said he would get them from the Training School.

It will be noticed that 4th defendant in his evidence with regard to the events of the 26th morning has fixed the 27th as the day on which things were expected to happen. Indeed, on the 25th evening he mentioned the 27th to Vandendriesen and to Sol Gunatilleke, in connection with loaded magazines for the Stirling guns and the Duty Officer's task respectively. How did 4th defendant fix on that date ? 3rd defendant said in evidence that when 4th defendant informed him on the 26th night that the Prime Minister was going to Kataragama on the 27th, 3rd defendant then thought that Mr. Bandaranaike would act in her absence on the 27th as she would be away on the 27th night: and when they met for the second time that night they agreed, according to 3rd defendant, that the 27th was an extremely likely day. Yet 4th defendant's evidence that Abeykoon asked him on the 26th morning " Are you ready for tomorrow V strikes us as an attempt to fix responsibility for the choice of this date on Abeykoon.

4th defendant admittedly met Brohier on the 26th afternoon and 4th defendant's version is that Brohier told him that Senanayake wanted officers, men, equipment and ladders from the Training School, and Vandendriesen wanted ammunition. 4th defendant said he told Brohier to give them what they needed and to send ammunition if the Depot required it, even though 4th defendant himself could not understand why Vandendriesen wanted ammunition from the Training School. Brohier denied that he told 4th defendant of being asked for ladders and ammunition, when this was suggested in the cross-examination of Brohier. Vandendriesen was at Police Headquarters that afternoon, but it does not seem to have occurred to 4th defendant to ask him about this. 4th defendant said that he also asked Brohier to send an Inspector or Sub-Inspector to take down phone messages at Johnpulle's house. After a meeting of the Officers' Mess Committee, 4th defendant said that he told Vandendriesen and other officers who were there to attend

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a conference at 6 p.m. on the 27th; he also told Stanley Senanayake that he would pick him up on the 27th morning to take him for a walk.

That night 3rd defendant and 4th defendant, according to both of them, met at 4th defendant's house, the first time at about 7 p.m. They have both said that they decided that as the Prime Minister was going to Kataragama on the 27th Mr. Bandaranaike would try to seize power that night. 4th defendant gave an additional reason, viz., that Abeykoon did not directly answer his question about the arrest of the Opposition leaders.

Further confirmation of 3rd defendant's suspicions seemed to come from a conversation which he said he and Rajapakse had at about 10 p.m. that night. It is common ground that 3rd defendant and Rajapakse met that night, but the time mentioned by Rajapakse was about midnight. While 3rd defendant said that the meeting took place at Rajapakse's request, conveyed to 3rd defendant by 9th defendant, and was near 9th defendant's flat, Rajapakse said that 14th defendant took him to 3rd defendant who was in 9th defendant's car near 14th defendant's flat, and that 9th defendant and 14th defendant were also present when they spoke to each other on the rocks at the end of Melbourne Avenue. The subject of conversation is also a matter of controversy. 3rd defendant said that Rajapakse informed him (1) that Lieut. Col. Attygalle had informed Rajapakse that certain drastic steps would be taken in a few days regarding the pending strikes, and that Mr. Bandaranaike was the strong man in the Government, (2) that Rajapakse had heard at the Y. M. C. A. that evening that there would be serious repercussions whichever way the Industrial Court decision to be given on the 27th went, and (3) that Rajapakse thought the Army would be used for some illegal purpose, which he did not disclose to 3rd defendant, and he was therefore concerned about that. 3rd defendant got the impression that Rajapakse expected him to do something about it, and agreed to back 3rd defendant whole-heartedly and to keep him informed of any news. 3rd defendant connected this information about the Army being used for some illegal purpose with Mr. Bandaranaike's expected coup. Rajapakse's version is different and is given elsewhere.

3rd defendant said that he went to 4th defendant's house a second time, at about 11 p.m., and gave him Rajapakse's information. They discussed the plan again, and 3rd defendant says he told 4th defendant to watch Udugama closely. 3rd defendant and 4th defendant are not agreed as to the decision they made in regard to Wijekoon and Barker. According to 3rd defendant they made a firm decision to stop Wijekoon and Barker leaving their houses by using Police personnel; according to 4th defendant these two commanders of the Army and Air Force respectively were not to be restrained and they were to be free to go about, but 4th defendant was to have them matched. On this question we have the evidence of Doole and Mendis who were ordered by 4th defendant at the 27th evening conference to take a contingent of men each to

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the Air Vice Marshal's and Army Commander's houses respectively. They have both said that 4th defendant ordered them to see that Barker and Wijekoon did not leave their houses after 12.30 a.m. and 12.15 a.m. respectively. We reject 4th defendant's evidence on this point. Mr. Wikramanayake in his closing address argued that the decision with regard to Wijekoon and Barker was taken as a result of Rajapakse informing 3rd defendant that night about Mr. Bandaranaike trying to use the Services. He forgot that 4th defendant had, as did 3rd defendant, referred in evidence to a decision about the Service Commanders having been taken on the 24th evening. We also think that no reasonable person would have thought that Wijekoon, Barker or Kadirgamar would obey illegal or unconstitutional orders given to them by Mr. Bandaranaike. 3rd defendant's lame excuse for not consulting his Army Commander does not explain why Barker or Kadirgamar should have been suspected of willingness to act improperly.

4th defendant also said that it was on the 26th night that an earlier idea they had toyed with of protecting certain Ministers by taking them into custody, (what he termed " protective custody ") was abandoned. It is an unusual meaning which 4th defendant sought to give to this phrase, for it generally has a more sinister meaning. We do not think that 4th defendant was frank in his evidence on this matter. There have been references by prosecution witnesses such as Brohier and Stanley Senanayake to the arrest of Ministers being one of the objectives of the conspiracy as told them by 5th defendant and 4th defendant respectively. 3rd defendant's evidence on this point confirms that they were so informed.

We come now to the eventful day, 27th January. Admittedly, Stanley Senanayake was picked up by 4th defendant early that morning, and they went to various places including Galle Face. 4th defendant said that Senanayake told him that he had chosen A. S. Ps ' Puvy ' and ' Tiny ' Seneviratne to carry out the arrest of Mr. N. Q. Dias and that he was '" ready for anything ". No more details of their conversation, of any importance emerged from 4th defendant's evidence.

4th defendant said that he interviewed several Police Officers in his office that morning, starting with Johnpulle and 20th defendant. He admitted that he told Johnpulle (1) to watch Rajan Kadirgamar from that time onwards, (2) to get a covered vehicle, in which he said he intended to transport the Opposition leaders from their place of custody after arrest to Army Headquarters, (3) to have Radio Telephone Cars and loud hailers and motor cycles with armed pillion riders ready near the Traffic Office, so that he could call for them if they were needed. 4th defendant has stated that when the orders he gave Johnpulle were almost completed, 20th defendant came there on being summoned by him, and he told 20th defendant to help Johnpulle in watching Kadirgamar. Johnpulle's version of the instructions that he and 20th defendant received that morning from 4th defendant appears elsewhere in this judgment.

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4th defendant next interviewed Thuraisingham, Superintendent of Police, W. P. (Central), and 5 A. S. Ps who were under him. He gave them instructions which are mentioned in another part of this judgment. But there is one matter upon which we wish to comment here. 4th defendant said that after he started that morning conference the Inspector-General of Police sent for him and told him that the list of persons to be arrested was the same list as that of the 24th, and gave him a copy after inserting Philip Gunawardena's name. Again the question arises as to why 4th defendant continued to make preparations on the footing that Opposition leaders were going to be arrested by Mr. Bandaranaike when the list contained the names of only Leftist leaders. It is the position of 3rd and 4th defendants that they were not going to move if only Leftists were going to be arrested. Of course Abeykoon and Stanley Senanayake have denied that there were any such  lists of persons to be arrested shown by Abeykoon.

4th defendant next saw Jayatileke, A. S. P., Transport, and instructed him to have 15 vehicles ready to arrest Communists by midnight. Though 4th defendant said in evidence that Jayatileke told him that the vehicles were required by Stanley Senanayake, Jayatileke denied he told 4th defendant that.

Rosemalecocq, Superintendent of Police, W. P. (South) was next told that he should be prepared to arrest trouble makers like Leslie Goonewardena on receipt of an order from the Inspector-General of Police : about midnight.

P. R. de S. Seneviratne, A. S. P., was admittedly instructed by 4th defendant to get a party consisting of 1 Inspector, 2 Sergeants and 16 Constables from the Depot Police Station and guard the Wireless Room at the Secretariat. We have also referred elsewhere in this judgment to the instructions given by 4th defendant to Arndt, Abeysekera and Dep that morning.

It was not disputed at the trial that the 4th defendant did in fact on the morning of the 27th January issue orders for the arrest of seven Leftists, five of them being members of Parliament, and one Government Member of Parliament. The instructions given by the 4th defendant were that arrests were to be made on orders which would be issued either " from Police Headquarters " or " from the Inspector-General " between 12.30 and 1 a.m. on the night of the 27th - 28th January. What was very keenly disputed was the question whether or not these orders for arrest were issued by the 4th defendant at the instance of the Inspector-General. This question has been fully agitated during the long course of this trial and the closing addresses of counsel, and we agree with the Attorney-General that it is one of major importance. Some of the matters we have to discuss in this connection may require more detailed consideration at later stages in this judgment.

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The Inspector-General, General Wijekoon and Mr. Bandaranaike each categorically denied any knowledge of a Government decision to effect arrests of Leftists and trade union leaders about the end of January, and the Inspector-General and Mr. Bandaranaike have further denied that they had any secret idea of making such arrests.

The 4th defendant's version of the matter was that the Inspector-General first spoke to him of arrests on 16th January in connection with the information that the Government proposed to introduce a Capital Punishment Bill to nullify the judgment of the Court of Criminal Appeal in the Assassination case. Mr. Bandaranaike had, it is alleged, told the Inspector-General of the Government's intention to pass the Bill into law at any cost, and with that object to arrest all Opposition leaders, including those who were not Leftists. On this occasion the 4th defendant was ordered by the Inspector-General to search for a large house to detain those arrested persons. The 4th defendant himself thought that for security reasons an ordinary house would not be suitable for this purpose. That was how he came to solicit the 3rd defendant's assistance to find suitable premises within the Army perimeter, and how ultimately by 23rd January, the 3rd and 4th defendants definitely decided that a building in the Magazine premises at Army Headquarters would be used to detain arrested persons. We must state here our reasons for rejecting their evidence that the decision was made in connection with an official proposal to detain Opposition leaders.

The 4th defendant had to admit that " he does not think " that he informed the Inspector-General that a place within Army Headquarters had been selected to house arrested Opposition leaders, and to admit further that the Police Department made no formal request to the Army to use Army premises for this purpose. This although the 3rd defendant had on 17th January said that he would expect such a request to come " through the proper channels ". The 3rd defendant himself did not inform the Army Commander of this decision to house important civilian detenues in Army premises. Nevertheless, on 24th January, Col. Abey-singhe of the Ordnance Corps was ordered by the 3rd defendant or the 2nd defendant to be at Army Headquarters ready to receive and detain arrested persons, and on the 27th he was told to take Arndt, Superintendent of Police, to Army Headquarters at midnight in order to carry out the detentions. We are satisfied, from the evidence of the 3rd and 4th defendants themselves, that the plans which they thus completed allegedly for the detention of Opposition leaders are not reconcilable with the version that they expected to receive official orders for arrests from the Inspector-General or his superiors. We think, on the contrary, that these plans were deliberately withheld from the knowledge of the Army Commander, because they were secret and unofficial plans.

There was other evidence of a search for a house which the defence Bought to utilise in their favour. During the cross-examination of Stanley Senanayake, it was elicited that when he was being questioned

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at Temple Trees on 19th February, he had mentioned something about a search for a house, and that then the Inspector General had interrupted him to state that that had been on an official Ministry order. Senanayake went on to relate in evidence further details about this matter: that while holding a conference at his office he received a telephone message from the 4th defendant instructing him to search for a vacant house in Colombo; and that when he mentioned this matter at the conference itself, Jebaneson the 18th defendant suggested the house used as the Naval Commission office. Senanayake said that the conference at which this matter arose was one attended by both gazetted officers and officers-in-charge of Police Stations, and by reference to entries in his weekly diaries he said that the only such conference held about that time was one on 10th January 1962. The witness Talwatte who was Officer-in-charge of Cinnamon Garden station in January 1962, confirmed Senanayake's evidence that this matter of a house was brought up at a conference at which he was present on 10th January. On that occasion Senanayake instructed him to ascertain whether a house in McCarthy Road in his area was vacant, and he carried out the instruction later on the same day. His evidence is supported by entries in the Information Book that he attended the conference, and that thereafter on Senanayake's orders he went to McCarthy Road " about an information."

Inspector Suraweera, who was then Officer-in-charge of the Fort Police Station, thought that he had attended two conferences in January at Senanayake's office, at one of which officers present were ordered to have searches made for hand-bombs. He remembered also that at one of these conferences mention had been made of a search for a house in which to detain " trouble-makers ". But he had no independent recollection of the dates on which these conferences were held ; and we are unable to rely on his answer to a leading question in cross-examination that the two matters - search for hand-bombs and search for a house - were mentioned at different conferences. Nor is there support in Sennnayake's weekly diaries for the suggestion that there were two such conferences, and not only the one on 10th January.

Senanayake had summoned a conference of gazetted officers for 16th January at which he gave instructions for a special squad to be immediately formed to " trail " Leftists. A. S. P. Robert Perera thought that the matter of a search for a house was mentioned at that conference. He himself had much to do with the order to form the special squad and to note the addresses of persons suspected of inciting strikes. But he had no duty to perform with regard to the search for a house. The conference of 16th January being one for gazetted officers only, neither Inspector Talwatte nor Inspector Suraweera could have attended it; so that Perera's recollection was at fault when he thought that this matter of a search for a house was mentioned on the 16th. The evidence of Suraweera and of Robert Perera does not create doubt as to the accuracy of Senanayake's version and of Talwatte's evidence that he did on

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10th January inspect a house at McCarthy Road on Senanayake's instructions. Talwatte was the only witness called at the trial who had performed some duty in this connection, and he had noted the matter in his Information Book. We have therefore to accept the prosecution version that about 10th January, the Inspector- General wanted a search made for a place to house Radio Ceylon technicians who had been detained on or about 4th January. We do not accept the 4th defendant's evidence that he was asked by the Inspector-General on 16th January to search for a house for the detention of Opposition leaders. Indeed, on that evidence itself, the 4th defendant did not himself consider that a private house would be suitable for such a purpose. His own explanation for speaking to the 3rd defendant on the 17th January was that he wanted the 3rd defendant's help to secure premises within the Army perimeter to house Members of Parliament.

One matter deposed to by Stanley Senanayake was that on 26th January, the 4th defendant wanted him to take down a list of names and addresses of certain Leftists, the addresses being furnished from two telephone directories, and that the 19th defendant assisted in this matter. Stanley Senanayake maintained that he took down eight names on a piece of paper. He said that the paper had been in the pocket of his bush coat, and that it was burnt after his first questioning at Temple Trees. It is clear from the evidence that some paper-whatever it was-was burnt by Stanley Senanayake's wife in consequence of a direction he gave her on the Telephone from Temple Trees on 28th January.

According to the 4th defendant, the Inspector-General gave him on the 24th January a list of names, those of Leftist opposition leaders on one side, and those of trade union leaders and other " trouble makers " on the other. This was a typed list, but a few names including that of Mr. Somawira Chandrasiri, a Government Member of Parliament, were in the handwriting of the Inspector-General, and the 4th defendant himself wrote on it the name of Mr. Philip Gunawardena. At the time he received the list, the Inspector-General told him that this was not the final list, which latter would be ready on the 27th. The 3rd defendant confirmed that such a list was shown to him by the 4th defendant on the 24th, and that it contained about forty to fifty names. The 4th defendant's version is that he handed this list to Stanley Senanayake on the 26th, for the reason that according to him he entrusted Stanley Senanayake with the task of preparing for the arrest of persons on this list.

The 4th defendant denied that he asked Stanley Senanayake on the 26th to take down eight names and addresses to which the latter referred ; and it was the defence position that the only list which Stanley Senanayake had, and which was later burnt at his instance or else suppressed, was the typed list received on the 24th by the 4th defendant from the Inspector-General. The 4th defendant further stated that on the 27th morning the Inspector-General handed to him another copy of the same typed list, with only one difference, that on it the Inspector-General

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himself wrote the name of Mr. Philip Gunawardena. The Inspector-General asked the 4th defendant to return it " after you have finished with it ", but because the Inspector-General had left the office after the 4th defendant's conference with the Western Province (Central) officers, the 4th defendant locked it up in his steel cabinet before he himself left office that day. The defence position has been that the C. I. D. must have found this final list when the steel cabinet was searched in February, and that the list has been deliberately concealed or destroyed. If such a list and/or its copy had actually existed, there would have been clear proof of the 4th defendant's version that the Inspector-General officially ordered the arrests of the persons named on the lists. But we are unable to hold that any such list did ever exist.

Firstly, though not most importantly, there is the circumstance that Stanley Senanayake was not cross-examined with respect to the allegation that such a list was ever in his possession. There was very lengthy cross-examination by Messrs Ponnambalam, Wikramanayake and Kannangara with respect to Stanley Senanayake's version that he wrote down a list of names, and with respect to its subsequent destruction, but no direct suggestion was made to Stanley Senanayake that he had been given a long list which contained the writing of the Inspector-General and of the 4th defendant himself.

The 4th defendant wished us to believe that when he gave his orders for arrests on the morning of the 27th January at a conference of Western Province (Central) officers, he had referred to the list alleged to have been received by him from the Inspector-General. The only support that he got from some of those officers was evidence that he had left the room on receipt of a message from the Inspector-General, and had returned with a paper in his hand. Thereafter he referred to a " piece of paper " or a " slip of paper " when giving the orders for arrest. It is very doubtful whether a paper containing a typed list of thirty to forty names could have been described by these officers as a "piece of paper " or a "slip of paper ".

According to the 4th defendant, this alleged list contained the names of persons whom he expected to be arrested that very night. That being so, it is difficult to understand why the 4th defendant locked up the list in his safe and did not keep it in his possession; so important and extensive an operation as the arrest of persons named in the list would surely have required further reference to and checking of the list later on the same day. Even if we accept Mr. Wikramanayake's explanation that the 4th defendant did not himself need the list any longer, one would have expected the 4th defendant to hand it back to the Inspector-General at the latter's house. The 4th defendant knew that the Inspector-General would be at home that afternoon, because the 4th defendant had arranged for the Inspector-General to take an oil bath on that day.

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Stanley Senanayake in his first statement at Temple Trees during the early hours of the 28th January, made no reference either to the list in his own hand writing which he said was destroyed subsequently, nor to a list of the description now spoken to by the 4th defendant. If Senanayake's version be true, (that he had only a list in his own handwriting), a disclosure concerning it would obviously have been dangerous to himself. On that version, it is understandable that Senanayake did not mention it in his first statement, and that very soon after he directed his wife to burn the list, because his writing on it could have seriously incriminated himself. On the other hand, if the list, (as the 4th defendant claims) bore the writing of the Inspector-General and of the 4th defendant himself, it was a document which would have established that any otherwise suspicious orders which Stanley Senanayake himself may have given were in fact merely in execution of orders of the Inspector-General himself. We are satisfied that if indeed such a list was in his pocket at home, Stanley Senanayake's first impulse would have been to protect himself from suspicion of any unlawful activity by speaking of the list bearing the handwriting of the Inspector-General, and having it fetched to Temple Trees from his home. To burn such a list was to destroy the only available documentary proof of his own innocence. The fact that the actual paper was burnt strongly supports the version that it was a paper in the handwriting of Stanley Senanayake himself, and not the list which the 4th defendant claims it to have been.

Mr. Wikramanayake advanced a highly involved theory that Stanley Senanayake may have deliberately decided that it would be dangerous (we cannot see how it would have endangered Senanayake himself) to produce the typed list with the Inspector-General's handwriting on it ; but we cannot agree that in the circumstances prevailing that night, Stanley Senanayake had either the inclination or the opportunity to contemplate a decision so contrary to the obvious and self-protective course of producing the list forthwith. For reasons which we state in other contexts, we have also to reject the suggestion that the Inspector-General or some C .I .D. officer was able, during these busy hours at Temple Trees, to induce Senanayake to suppress the existence of a list which could have established his own innocence of any illegal activity.

Connected with the 4th defendant's allegation that he gave to Senanayake a list of persons to be arrested, is the allegation that the task of arresting Leftists and trade union leaders was officially assigned to Senanayake. The 4th defendant himself has admitted that he did give orders to Western Province (Central) officers for the arrest of a few such persons and to Rosemalecocq for the arrest of one Leftist Member of Parliament. We know also from the 21st defendant that he received an Order through Orr for the arrest of a Member of Parliament and a former Senator. If, as the 4th defendant alleges, the Inspector-General had ordered him to arrange for the arrest of about forty persons, then the alleged assignment to Stanley Senanayake would have necessitated arrangements and orders by Senanayake for at least about twenty or thirty

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arrests. If indeed Senanayake was given a list with some names handwritten by the Inspector-General, or even an oral order from the 4th defendant to arrange for some arrests. Senanayake must necessarily have issued numerous orders, at least tentatively, in pursuance of his assignment. But of several Police officers who gave evidence, a fair number of whom were serving under Stanley Senanayake himself, not one testified to any single order for arrest given by Senanayake, nor according to our recollection was any Police officer cross-examined about the receipt of any such order from Senanayake. There was literally not a word of evidence to support the version that so important a task had been assigned to Senanayake.

According to the 4th defendant, the evening conference on the 27th commenced with his remark " you know already what S. P. C. (Senanayake) has ordered. Have you any difficulties." Such a remark, if made, pre-supposes that the 4th defendant himself was probably aware of orders already given by Senanayake to officers present at the conference. Not one of these officers, however, was asked any question at the trial which might have elicited an answer that the 4th defendant did make such a remark, nor as we have stated above was any attempt made at the Trial to acquaint the Court of the purport of any of these orders which Senanayake is supposed to have given, and which he must have given if the 4th defendant's version be true. The 4th defendant alleged that he had directed Senanayake personally to arrest Mr. N. Q. Dias. But his evidence does not disclose that he even troubled to ascertain from Senanayake the details of arrangements for the task of arresting Members of Parliament and others. So far as the evidence goes, neither the 4th defendant himself, nor any A.S.P. or O.I.C. serving under Senanayake, had knowledge of a single order from Senanayake in performance of the very important " task " said to have been entrusted to Senanayake.

The evidence concerning the actual arrest of the Member of Parliament for Baddegama shows that in that connection the 21st defendant, Superintendent of Police, Galle, had his two Assistant Superintendents of Police, and at least three Inspectors specially gathered together at the Galle Police Station. Such special arrangements were only to be expected at many stations in Colombo also, if Senanayake was in fact preparing to arrest a number of Members of Parliament. Nevertheless, at the conference held on the evening of the 27th. the 4th defendant proceeded to give assignments to a number of Colombo Assistant Superintendents of Police, without troubling to inquire from them whether they would already be engaged in carrying out or supervising arrests which {according to the 4th defendant) must have been ordered by Senanayake. The 4th defendant's assumption, that these Colombo officers would be free to perform the tasks which he assigned to them, belief his claim that he had ordered Senanayake to arrange for a large number of arrests in Colombo.

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For reasons stated above at some length, we have to reject as false the 4th defendant's evidence that he did assign to Senanayake the task of making a number of arrests. There was accordingly no occasion for him to give to Senanayake the list of names which the 4th defendant is said to have received from the Inspector-General on 24th January, and we hold that Senanayake was not given such a list.

We have thus far shown that the 4th defendant failed at the trial to substantiate his version that the Inspector-General had instructed him to make arrangements for the arrest of Leftists, including Members of Parliament. But there is other material which shows positively that his version is false.

We shall discuss elsewhere the statement (P 159) which the 3rd defendant made at Temple Trees on 28th January, and the letter (P 181) dated 30th January 1962 which the 4th defendant wrote to the Advisory Committee shortly after his detention. In his statement, the 3rd defendant had admitted that the events of 27th January for which he took full responsibility, involved a decision to arrest Leftists, and that it was his idea to effect such arrests, whether before or after meeting the Governor-General at Queen's House. For reasons which will be discussed later we hold this admission to be true as against the 3rd defendant. The 4th defendant's letter (P 181) referred to some of the actual events of January 1962 and to some actual orders he gave to Stanley Senanayaka on and after 22nd January 1962. But he there made no mention what-ever of a discussion with the Inspector-General on 16th or 17th January concerning an alleged scheme (of the Government or Mr. Bandaranaike) to arrest Opposition leaders.

This failure of 4th defendant to mention then the alleged talk by the Inspector-General on 16th January undermines the foundation of the defence now set up by the 3rd and 4th defendants, which is that their coming-together, their thinking thereafter, and their ultimate planning and activities all originated because of such a talk on that day. When the 4th defendant made representations in that letter about his unlawful, unjust and humiliating arrest, this talk must necessarily have been, present to his mind as the cause and origin of the events which led to his arrest. Nevertheless, although he did refer in the letter to a conversation on 22nd or 23rd January when the Inspector-General had spoken of serious trouble expected about the 29th, which conversation (according to the latter) had led to his giving some precautionary Police orders, he did not refer to the so much more important talk on 16th January about arrests. Having considered the 4th defendant's explanations, we are satisfied that the true reason why he failed to refer to this talk is that no such talk did in fact take place.

The " first " statements made by these two defendants satisfy us that in fact the admitted decision to arrest Leftists was their own decision and not the consequence of any instructions for arrest given by the Inspector-General,

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The 3rd defendant's own conduct is also relevant in considering whether the Inspector-General in fact spoke to the 4th defendant of the contemplated arrest of Opposition leaders, or even tentatively ordered ! the arrest of Leftists and Trade Union leaders. The 3rd defendant said that, at the 4th defendant's request, he agreed to make available a building at Army Headquarters within the control of the Ordnance Corps for the reception of Opposition Members of Parliament to be arrested | on Government orders. Although he had originally told the 4th defendant that a request for the use of this building must come ultimately ! through normal official channels, it is perfectly clear that if the , operation the 3rd defendant had in mind had not been called off on the night of the 27th January, this Army building would have been utilised for the reception of important civilian arrestees without the knowledge and sanction of Army Headquarters.

The agreement to provide at Army Headquarters a building to  house either Opposition Members of Parliament or Leftist Members of Parliament and Trade Union leaders was, according to the evidence of the 3rd defendant himself, a purely official matter, because on his version he expected that the arrests of those persons would be carried put in pursuance of official orders received from the Inspector-General of Police and having the approval of the Parliamentary Secretary, who it is said gave orders on the Prime Minister's behalf. That being so, it is to us inexplicable why it was that no request was made by the Police Department to General Wijekoon or to his Chief of Staff for the use of this building for what would have been a civilian official purpose. Also inexplicable is the fact that the 3rd defendant did not even inform Army Headquarters of the request and the arrangement for the use of this building and for the use of Army personnel to keep civilians in custody there. We have no reason whatever to suppose that, in the circumstances prevailing at the time, General Wijekoon would have  regarded with the slightest suspicion any official intimation to him that the Government was contemplating a possible need to arrest Opposition or Leftist and Trade Union leaders. On the  contrary the General's own advice to the Government (relied on strongly by the defence in other contexts) had been that one sure way to tackle strike situations would be to arrest leaders and inciters. We shall deal presently with the 3rd defendant's explanation of his reluctance to convey to the Army Commander his alleged suspicions concerning Mr. Felix Dias Bandaranaike. But at this stage it suffices to point out that that explanation furnishes no answer for the failure to inform the Army Commander of the Police request for a building to house detenues, and for the unwarranted orders given to Colonel Abeysinghe to receive, and quite obviously to guard, civilian detenues in Army premises.

We are compelled to the conclusion that the plan to arrest Leftists and Trade Union leaders and the intention to detain them at Army Headquarters (admitted by both the 3rd and 4th defendants were regarded by these two defendants as being as much their own secret

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as their alleged counter-plan to arrest Mr. Bandaranaike and Mr. N. Q. Dias. We hold that it was solely their plan and not one proposed by the Inspector-General or Mr. Bandaranaike.

We revert again to the events of 27th January and to the evidence of the 3rd and 4th defendants.

Before the evening conference began Stanley Senanayake's father-in-law Mr. Kularatne had been summoned from Ambalangoda to Colombo by his daughter ; he had spoken to Stanley Senanayake and his brother Lionel Senanayake ; and he had gone to the Orient Club and spoken to Abeykoon. We have no doubt that Kularatne was informed by both Lionel and Stanley Senanayake that 4th defendant and others had planned to overthrow the Government that night, and that he conveyed this information to Abeykoon at about 5 p.m. Stanley Senanayake was sent for and questioned by Abeykoon but gave him no information. This is their version of those events. The 4th defendant's version is briefly that Stanley Senanayake came to him at about 5.30 p.m. and told him (1) that he (Stanley) had mentioned to his wife about some danger and trouble in the Colombo division, that thereafter Lionel Senanayake and Kularatne came to Stanley Senanayake's house, and that after asking him if the Inspector- General of Police knew about it Kularatne went to inform Abeykoon ; (2) that the Inspector-General of Police had sent for Stanley Senanayake to the Orient Club and asked him what the trouble was going to be in Colombo that night, and Stanley Senanayake had informed him that they were only getting ready to carry out the orders that I. G. P. had already given Stanley Senanayake and 4th defendant; (3) that the I. G. P. then told Stanley Senanayake that he would get the D. I. G., C. I. D. to check on that, and agreed to Stanley Senanayake going to inform 4th defendant of what had happened, and also told Stanley Senanayake to tell 4th defendant that he was asking the D. I. G., C. I. D. to check " on certain matters " ; (4) that Stanley Senanayake assured 4th defendant that he had not divulged anything to his wife or to Kularatne.

4th defendant said that he told Stanley Senanayake to go to the conference. He then informed 3rd defendant at about 5.45 p.m. of what Stanley Senanayake had told him, and promised to take Stanley to him at 8 p.m. He also telephoned Abeykoon who said that there was nothing to worry about and that he would be playing bridge. While 4th defendant has said that he was not worried or suspicious after Stanley Senanayake had spoken to him, 3rd defendant has said that he was anxious to meet Stanley Senanayake in case there had been a security leak; that is why 4th defendant agreed to bring Stanley Senanayake to him at 7.30 p.m.

According to 3rd defendant, 4th defendant also informed him at 5.45 p.m. that Mr. Bandaranaike and Mr. Dias and Udugama were out of Colombo; that the D. I. G., C. I. D. was playing golf; and that Rajan Kadirgamar was being trailed.

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On the 27th morning, according to 3rd defendant, he met 2nd defendant at the Ceylon Volunteer Force Headquarters and they decided to warn as many Army officers as possible about unusual orders and to ask them to inform 2nd defendant and 3rd defendant if they received any such orders. 3rd defendant has said that his intention was to give the officers, whom he was going to enlist in his plan, orders and rely on them to maintain secrecy. They also decided that Queen's House was a vital point as Mr. Bandaranaike may take action against the Governor-General, and so they decided to warn 7th defendant, whose Regiment was on guard duty there, to strengthen the guard. When they were discussing where they should meet the Army officers, 15th defendant telephoned 2nd defendant; this gave 3rd defendant the idea of 15th defendant's house as the meeting place, so he telephoned 15th defendant and told him that 2nd defendant, 3rd defendant and a few officers would come to his house at about 7 p.m.

3rd defendant also said that about 12.30 p.m. Rajapakse telephoned to him and mentioned that the Armoured Corps was going to the Port, and 3rd defendant then told him to come to 15th defendant's house at 7 p.m. and agreed (when Rajapakse suggested it) to 14th defendant also being brought there.

3rd defendant admitted that he telephoned most of the Army officers and asked them to come to 15th defendant's house, and that he also asked 7th defendant to bring 8th, 9th, 10th, 11th and 12th defendants (who were all in 7th defendant's Regiment) with him. 3rd defendant admitted that he probably told Ebert to issue the Stirling guns if Abeysinghe had told him to do so, but he denied that the issue was connected with the plan.

3rd defendant has said that 4th defendant, at 5.45 p.m. informed him of the absence of Mr. Bandaranaike, Mr. Dias and Udugama from Colombo. Why was the meeting of officers arranged for 7 p.m. considered necessary in the circumstances 1 It had been summoned without the knowledge of the Army Commander, and in Rajapakse's case without the knowledge even of his Commanding Officer. 3rd defendant admitted that he had no information that anything was likely to happen on the 27th night. It is rather surprising that, if his motive in getting these officers to 15th defendant's house was to thwart a possible move by Mr. Bandaranaike, he should have persisted in holding the meeting in the absence of such information.

There were admittedly five Commanding officers at the meeting-7th defendant, 13th defendant, 15th defendant, Abeysinghe and Alwis. 3rd defendant admitted that 2nd defendant and 8th defendant were also there. He said that he could not remember if 9th defendant, 10th defendant, 11th defendant and 12th defendant were there. Abeysinghe said that he saw 10th defendant either in the house or on the road opposite, and also, 9th, 13th, 14th and 15th defendants and Rajapakse. Rajapakse has said that 6th defendant (whose presence Abeysinghe, de Alwis, and 3rd defendant have denied) was also there, as well as 11th and 12th

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defendants. The meeting appears to have been a very brief one. This may well have been due to 3rd defendant being disturbed by certain information which 4th defendant said he had heard from Stanley Senanayake, and which (from whatever source he obtained it) he would surely have conveyed to 3rd defendant. It was the information that the D. I. G., C. I. D. and the S. P., C. I. D. had been seen going to Stanley Senanayake's house in search of Senanayake.

3rd defendant asked those who were there to come to Kinross Avenue at 8.30 p.m. 7th and 8th defendants who informed him that a wireless exercise had been arranged for that night were told that their attendance was essential-even if it meant cancelling the exercise.

At about 6.30 p.m. 4th defendant went to S. P. Colombo's office for the conference. He said Stanley Senanayake told him there (1) that his wife informed him that S. A. Dissanayake and John Attygalle had come in search of him to his house, and (2) that Mr. N. Q. Dias was in Madampe. Senanayake then asked to be excused from attending the Conference as he had a headache. No suggestion of a headache having been mentioned by Senanayake was put to him in cross-examination. We have already dealt in some detail with the incidents that led up to Senanayake leaving the conference before it began. Even on 4th defendant's evidence, Stanley Senanayake, who he believed to be a willing participant in the plan to foil Mr. Bandaranaike, was wilfully prevented from meeting the C. I. D. officers. The explanation is obvious. The information conveyed by Kularatne to Abeykoon, which had stemmed from Stanley Senanayake, must not be examined by the C. I. D. questioning the informant. 4th defendant's evidence that he was neither worried nor suspicious after Stanley Senanayake's disclosures to him at 5.30 p.m. cannot be accepted.

As to the business conducted at the conference, 4th defendant gave instructions to various officers there, and these details appear elsewhere in this judgment. Even in his own evidence he does not claim that he said a word about arrests of Leftists, or any other persons whose names are said to have been in the list alleged to have been given to him by Abeykoon. Nor could he have dealt with the arresting of the persons named in the alleged list given to him, since he said that he left that list in a cabinet in his office. Yet he would have us believe that the arrest of Leftists and trouble makers in Colombo was at least one of the matters which had to be gone into, as indeed it was gone into at the morning conference.

The orders given by 4th defendant are more or less common ground between him and the prosecution witnesses. 4th defendant said that he did not know who was to make particular arrests, and that it was Stanley Senanayake's job to give those orders. But if, as he claimed, he attended the conference in order to see if Senanayake and his officers were carrying out Abeykoon's alleged instructions, it is surprising that

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he omitted to take the alleged list with him to the conference, and that he made no inquiries as to whether any arrangements had been made to effect any arrests of Leftists.

It is quite clear that this conference, unlike the morning conference, had nothing to do with arrests of Leftists. It was purely a briefing of gazetted officers who were to station themselves at certain strategic points and await further orders from whoever was to seize control at Police and Army Headquarters. The details of the briefing appear earlier in this judgment. 4th defendant pretended that Stanley Senanayake had told him earlier that he had given all these officers the same orders, (except Dedigama, Mendis and Dole) but no such suggestion was made to Stanley Senanayake in cross-examination.

4th defendant could hardly have meant to include 18th defendant and Vandendriesen in that statement, since all they were told by 4th defendant at the conference was to go to his house and play bridge. 19th defendant was also summoned, apparently, for this same purpose to his house. A similar matter which involved Stanley Senanayake, but which he had no opportunity of refuting, was 4th defendant's evidence that Stanley Senanayake had been following Mr. Dias's movements, and that at lunch time he informed 4th defendant that Mr. Dias had gone to Matugama, and that at the evening conference or at Johnpulle's house he informed 4th defendant that Mr. Dias was at Madampe. It is difficult in any case to understand why, if Stanley Senanayake had agreed to follow Mr. Dias's movements, it should have been necessary for 4th defendant to ask the 19th defendant to telephone first Rosemalecocq and then Brohier, in order that they may ascertain the whereabouts of Mr. Dias and convey their information to Stanley Senanayake. We can discern many instances which disclose a calculated but unsuccessful attempt on the part of 3rd defendant and 4th defendant to involve Stanley Senanayake as a co-conspirator with them.

Both the 3rd and 4th defendants have denied the truth of Stanley Senanayake's evidence that he was taken by the 4th defendant on the night of the 27th January to a house in Frances Road, Wellawatte, and that he saw in the garden of that house the 2nd, 3rd, 5th and 6th Defendants. It is common ground that this visit to Frances Road, if made at all, could only have taken place between 8.15 and 8.50 p.m. The defence have relied on what can be called evidence of an alibi to show that the 3rd defendant and the 4th defendant were during this relevant period at " Homelea", Alexandra Place, the residence of the 3rd defendant, and that Stanley Senanayake was taken there and not to Frances Road.

The 3rd defendant's evidence was that on the morning of the 27th he arranged for the 4th defendant to meet him at " Homelea " at 7 45 p.m. that evening. In fact the 4th defendant came before that time (about 6 p.m.) to discuss the development that the Inspector-General

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had questioned Stanley Senanayake at the Orient Club. At this discussion, the 4th defendant agreed to bring Senanayake to " Homelea " between 7.30 and 7.45. The 4th defendant, however, stated that the time fixed was 8 p.m.

According to the 3rd defendant, at one stage of his evidence, the 4th defendant and Senanayake did come to "Homelea" about 8 p.m., but under cross-examination he said the meeting there with Senanayake and the 4th defendant was between 8.30 and 9 p.m. When Stanley Senanayake was being cross-examined by Mr. Ponnambalam, the questions he was asked about this alleged visit to " Homelea " and his answers were:

Q. Do you know " Homelea ", Alexandra Place ? A. No.

Q. You have never been there, neither on the 27th nor before that ?

A. I have been to the house in Alexandra Place where his brother Koo de Saram stayed about 20 years ago.

Q. The day preceding the 27th ? A. No.

The 3rd defendant's position is that he never instructed his Counsel that Stanley Senanayake came there on the 26th. The cross-examination does not suggest to Senanayake the defence position that he was at " Homelea " on the 27th night along with the 3rd defendant and the 4th defendant. Mr. Ponnambalam explained that once Senanayake denied that he went to " Homelea " on the 27th or the day preceding it, there was no need to pursue the cross-examination further. But if at that stage of the trial the defence was relying on a visit of the 4th defendant and Senanayake to " Homelea " on the 27th night in order to disprove Senanayake's version of a visit to Frances Road at about the same time, we can think of more pointed questions which might have been put to Senanayake.

According to many officers who attended the evening conference at the S. P. Colombo's office, that conference ended about 7 o'clock. Assistant Superintendent of Police Dole, whose recollection was assisted by entries he made after the conference in books of the Slave Island Police Station, said that he left the conference at 7.05 p.m., and that the 4th defendant left before him. Assistant Superintendent of Police Dedigama confirmed that he and Dole were the last to leave. It was only natural that one or two junior officers who were present when the conference ended should have remained until the Deputy Inspector General left the premises.

The 4th defendant was next seen by other witnesses at a time which is fixed at shortly before 8 p.m., by evidence to which we shall immediately refer. Thus Johnpulle was seen at the Officers' Mess after 7.30; from

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there he dropped in to speak to Mrs. Senanayake at her house and then returned to his own house; the 4th defendant came to that house a little while thereafter. Assistant Superintendent of Police Samaraweera went to the Mess about 7.30 p.m., and he had a drink after that with Dedigama; he saw Johnpulle in the Mess at that time. Samaraweera also ordered a drink for the 19th defendant, who was thus at the Mess after 7.30. According to the 19th defendant, he left the Mess because he received a telephone call from the 4th defendant telling him to come to the latter's house. (This telephone call the 4th defendant made from the 19th defendant's house.) The 19th defendant then went to the 4th defendant's house, and the 4th defendant arrived at the house a little later. The 4th defendant walked next door to Johnpulle's house and from there Vandendriesen made the " Walker " call to Mr. Bandaranaike. Both Mr. Bandaranaike and the 4th defendant said that this call was made about 8 o'clock.

If, as the 3rd and 4th defendants state, it had been arranged for the latter to take Senanayake to " Homelea " between 7.30 and 7.45 p.m., that appointment could have been punctually kept. All that the 4th defendant says he did after the evening conference was to pick up Inspector Srichandra on his way home at the 19th defendant's house in Macarthy Road. The 4th defendant's version of his movements after the conference leaves unaccounted for a period of half an hour during which he could not have dallied on the road. If his version is correct, he should have reached his home not later than 7.30 p.m. The fact that he arrived home only at nearly 8 p.m. proves that he must have stopped elsewhere in the interval.

Dr. Sproule, who also resided at " Homelea ", testified that the 4th defendant came there with some unrecognised person between 7.45 and 8.30. While we do not reject his evidence of such a visit, his fixation of the time of the visit was not definite and does not establish that the visit took place after 7.45 p.m. Having regard to the time gap in the 4th defendant's account of his movements, the defence did not satisfy us that this visit to " Homelea " took place after, and not before 8 p.m. Moreover, as we shall presently show, we are satisfied of the inherent truth of Stanley Senanayake's evidence that when he was taken from the 4th defendant's house after 8 p.m., he was in fact taken to 14, Frances Road, and not to " Homelea."

The theory of the defence was that Stanley Senanayake either of his own accord or at someone's instigation concealed an actual visit with the 4th defendant to "Homelea" between 8.15 and 9 p.m. and substituted for it a visit to Frances Road at that time. A close examination of the circumstances in which such a concealment and substitution could possibly have been devised demonstrates how unwarranted the theory is. 'Since it is common ground that Senanayake did meet the 3rd defendant before 9 p.m. on the 27th, Senanayake must undoubtedly have mentioned such a meeting when questioned at Temple

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Trees, and if the meeting actually took place at " Homelea ", he must undoubtedly have mentioned that meeting place. One cannot imagine any reason why he should of his own accord have thought of falsely changing the true venue of the meeting; what would have been important to his mind when questioned was the fact of the meeting between himself and the 3rd and 4th defendants, and not the venue. We must therefore assume that he first mentioned what was according to the defence the actual fact of a meeting between these three persons at "Homelea". If then there was fabrication, the fabrication took place after the actual facts had been correctly stated by Senanayake.

If there was " inducement", Senanayake was induced to make false Statements on two matters-the presence of the 2nd, 5th and 6th defendants at the meeting, and the change of venue from " Homelea " to Frances Road. Even if we assume that someone induced the addition of three names, it is quite impossible to understand why anyone should have thought of changing the actual venue to a fictitious one. If Senanayake spoke of a meeting at " Homelea ", it would have been quite simple to induce him (if indeed he was thus amenable) to add three names of persons present at " Homelea ". But it was quite absurd and foolish to induce him to state falsely that the meeting took place elsewhere. The suggested false venue was the house of the brother of the Commandant of the Volunteer Force and not some village hut. To deliberately suggest such a false venue was to run the risk that some visitor to that house, whose word would not be ordinarily doubted, might have contradicted Senanayake's statement about a meeting there. In other words, this suggestion could only have been made at the risk of destroying the worth of Senanayake's true evidence of the important fact of the meeting itself. When the Court inquired from Mr. Ponnambalam why any investigator should have made such a suggestion in the early hours of the 28th January at Temple Trees, Mr. Ponnambalam explained that perhaps the investigator thought that, because some names of persons at the meeting were being falsely added, Dr. Sproule might come forward to contradict the list of names given by Senanayake. This explanation involves knowledge on the part of the investigator (at about dawn of the 28th) that Dr. Sproule lived at " Homelea ", that he intended to go on a shoot early that very morning, and that he was actually at home about 8.30 p.m. on the 27th and saw the 4th defendant arrive there. We ourselves can think of no explanation less fantastic than that given by Mr. Ponnambalam as to the reason why anyone should have even thought of changing a true statement of the venue of the meeting into a false one.

We pass now to consider the defence allegation that Senanayake was induced to state falsely that when he met the 3rd defendant on the night of the 27th, there were present also the 2nd, 5th and 6th Defendants. These three persons were not insignificant villagers who might have experienced difficulties in establishing alibis for 8.30 p.m. on a Saturday night. They were respectively Colonel de Mel, Commandant of the

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Volunteer Force, Sidney Soyza a former Deputy Inspector-General of Police, and Admiral de Mel former Navy Commander. For all that Senanayake knew, for all that any investigator at Temple Trees knew, Colonel de Mel might have been on this particular night the dinner guest or the dinner host of someone of impeccable trustworthiness. Any one of these three gentlemen might have been in fact at some cinema or hotel and seen there by many persons whose word would have counted more than that of Senanayake. If in fact, as the defence theory necessarily implies, Senanayake spoke only of a meeting with the 3rd defendant at the latter's house, his statement furnished the first and very valuable evidence of some conspiracy between the already arrested 4th defendant and a senior Army officer. It would have been in our opinion ludicrous to induce Senanayake to change his true version of this meeting with false additions and particulars which could easily have been refuted by reliable witnesses. We have to keep in mind that on the defence theory itself the persons who might have thus induced Senanayake were all men with either legal or Police experience. We cannot countenance the possibility that any such person would have been so foolish as to run the risk of jettisoning the first available evidence of Army involvement with the senior Police officer who had already been arrested.

We have dwelt at length on the evidence concerning the alleged meeting at Frances Road because it is important to state the reasons why we believe the evidence of Stanley Senanayake about that meeting and about the persons who were present. But we must add that this was only one of the many instances in which the defence invited us to think that witnesses who made statements at Temple Trees had been induced by the officers of the C. I. D. to falsely implicate one or the other of the defendants. The total failure of the defence to substantiate the allegations of " inducement " levelled in connection with Senanayake's evidence of this meeting at Frances Road, and our exhaustive consideration of the defence suggestions with regard to that evidence, relieves us of the need to burden this Order by stating meticulously, in connection with every other suggestion of " inducement" in other contexts, our reasons for rejecting such suggestions. In almost all these other contexts, the suggestion of fabrication has been made against officers of the C. I. D., and those allegations have naturally been reported in the Press. It is only fair for us to state that all there has been is the suggestion of fabrication, unsupported by evidence; that the C. I. D. officers who gave evidence before us impressed us as being men who performed their duties of investigation in the normal way; that Assistant Superintendent of Police Tyrell Gunatilleke in particular, against whom again and again the defence made suggestions of fabrication, struck us as being just a perfectly efficient Police officer making investigations in a manner which a court would expect of him.

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We hold on this evidence that the 4th defendant did take Senanayake to Frances Road, and not to Alexandra Place, after 8 p.m., and that the 2nd, 3rd, 5th and 6th defendants were present on that occasion at No. 14, Frances Road, Wellawatte. If, as Dr. Sproule says, the 4th defendant and someone else visited " Homelea ", we hold that the visit must have been before, and not after, 8 o'clock.
At about 8 p.m. 4th defendant admittedly directed Vandendriesen to make a telephone call to Mr. Bandaranaike in order to make sure that Mr. Bandaranaike was in his house; but 4th defendant denied that he had a telephone conversation with 5th defendant at about that time. We have held that 4th defendant then took Stanley Senanayake to 14, Frances Road, Wellawatte, where 2nd, 3rd, 5th, and 6th defendants had already assembled. Stanley Senanayake declined, when it was suggested to him, to go to the D.I.G., C.I.D. and deny the whole thing. They dispersed after agreeing to meet there again at 10.30 p.m. This meeting has been denied by 3rd defendant and 4th defendant but we reject their denials. From Frances Road, 4th defendant and Stanley Senanayake returned to 4th defendant's house about 9 p.m., while 2nd defendant and 3rd defendant are next seen at Kinross Avenue. The meeting there had been fixed for 8.30 p.m. but it was after 9 p.m. when 3rd defendant arrived there, as he himself admitted, and he said that the meeting lasted about half an hour. His, and 2nd defendant's arrival after 9 p.m. is not surprising as they were at Frances Road till nearly 9 p.m.

There were present at Kinross Avenue all the Military officers who had assembled at Elibank Road. 6th defendant was absent. 3rd defendant accepted Rajapakse's evidence about those who gathered there as correct, except that he did not recollect having seen 10th defendant there. 10th defendant in his statement has admitted his presence there. 3rd defendant's evidence is that he addressed the officers assembled there. He told them his fears, regarding Mr. Bandaranaike trying to seize power; that he would probably attempt it by arresting the Leftist leaders under pretext of stopping the general strike, and seizing the opportunity to arrest the Opposition leaders at the same time; his earlier intelligence was that it was likely to happen about midnight, but his later intelligence was that it was highly unlikely to happen that night; his intention was to go to the Governor-General as soon as he had reliable information of Mr. Bandaranaike moving, and the Army Commander would be brought in at the correct moment; he warned them about unusual orders and asked them to inform him if they received any; if they had to perform any tasks, the necessary orders would be given at an ' O ' group meeting which would be only after he met the Governor-General.

3rd defendant has admitted that he mentioned certain matters in greater detail. He told 7th defendant that a possible task for his unit was to protect Queen's House as it was a vital matter. He asked 15th

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defendant how the C.T.O. could be immobilized, but 15th defendant did not answer, and 13th defendant then said that it could be done by technical men in a matter of minutes ; 3rd defendant explained that bis idea in putting this question was to deprive Mr. Bandaranaike of the use of any Force. He discussed with 2nd defendant or Alwis the need to send Alwis to watch the telephones at Army Headquarters. He told them that the Code word " Holdfast" would be used to preface orders, and the Pass word would be " Yatbura." They were all told to be at the end of a telephone, as he thought orders might have to be given that night.

3rd defendant said that he did most of the talking, while 2nd defendant answered questions. He denied that any directions were given with regard to sealing off newspaper offices, or that any actual task was given to anybody, or that anybody was asked to sleep at Army Headquarters. Under cross-examination 3rd defendant said that he did tell 13th defendant about the C.T.O. and 7th defendant about the guard being doubled at Queen's House, but he gave no other orders to anybody there.

Under cross-examination Abeysinghe stated that no specific task was allotted to anybody that night, but there were talks of assignmente. Then followed these questions and answers:-

Q. There were talks of the possibility of what may have to be done upon an eventuality ?

A. Yes.

Q. And the eventuality being ?

A. The impression I got at that stage was that the Governor-General was going to take over the country.

Q. Wasn't there a discussion of the possibility of this group having to counter any move ?

A. Possibly by Mr. Felix Dias Bandaranaike.

Q. So, it would be correct to say that the position was discussed is the context of Mr. Felix Dias Bandaranaike attempting to take over ?

A. Yes.

Abeysinghe has admitted that, until he gave evidence, he had not mentioned that 3rd defendant said he was anticipating something in the nature of a coup by Mr. Bandaranaike, or that he was apprehensive about it. We do not believe him when he says that 3rd defendant talked at Kinross Avenue about the possibility of Mr. Bandaranaike taking over the country.

As Abeysinghe gave certain evidence which indicated that he was to come extent hostile to the prosecution, the prosecution was allowed to put a certain passage from his statement of 28th January, 1962, to

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him. The first passage was put after he denied that he had spoken about a coup, and reads : " About 4 days ago, Col. de Mel rang me up and asked me to come and see him. He spoke to me and said that they were planning a coup and it was coming from the top and the impression I go-, was that it had originated from Queen's House and that the General could be brought into it at the last moment." Abeysinghe denied that he mentioned the word " coup " at all in his statements. This passage was marked P158. Abeysinghe also said in evidence that on 23rd or 24th January he was sent for by 2nd defendant, and both 2nd defendant and 3rd defendant spoke to him: that in the course of a long conversation 3rd defendant said that " he had grave fears that Mr. Bandaranaike would take over the country in case it was paralysed and everything came to a standstill; and he appeared to be very worried about this and he said in that case he would leave no stone unturned to do everything possible to stop it, but in the first instance he would see the Governor-General, and that any action he takes would have the approval of the Governor-General." He admitted that he had never made this statement before he made it in evidence. Abeysinghe further said in evidence that at Kinross Avenue 3rd defendant mentioned that any action he was going to take would have the approval of the Governor-General, who was in sympathy, and also, he thought, the Prime Minister. He admitted that he had never mentioned this fact either before he gave evidence.

His explanation for the omission, which was elicited in cross-examination, was that 3rd defendant told him at Temple Trees on the 28th morning " Whatever you say, do not disclose that I was after F. D. B. (Felix Dias Bandaranaike)." This was said before 3rd defendant or Abeysinghe was questioned. 3rd defendant has stated that he did tell Abeysinghe this, as he thought it was unsafe to disclose this intention to Mr. Bandaranaike. Abeysinghe and 3rd defendant interpret these words as referring to steps to counter a possible coup of Mr. Bandaranaike. If this is correct, it does not seem to have struck either of them that by concealing the motive for their actions they would be concealing the only defence which has been put forward. This warning was, according to both of them, repeated 10 minutes later by 3rd defendant. Abeysinghe said that " through sheer deference " to 3rd defendant he did not mention this topic which 3rd defendant had mentioned in 2nd defendant's office. Under further cross-examination Abeysinghe said that he was told by Mr. Bandaranaike while under interrogation that it had not been decided what was to be done with him, and he thought he might be locked up at any time ; consequently he was in no mood to tell him that there had been a plan to counter his attempt to seize power. But Abeysinghe was taken to Temple Trees that morning, along with 2nd defendant, by General Wijekoon from Army Headquarters. Before taking them General Wijekoon said he asked them if they had been in " coup : 2nd defendant then said " What coup ? ". Abeysinghe could, if he had thought fit then, have mentioned to the General what he said

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in evidence regarding a move to counter a coup by Mr. Bandaranaike, for at that stage 3rd defendant had not warned him against speaking of it. 2nd defendant's bare question, without any further explanation, is; hardly the reply one would have expected from him. He certainly had the opportunity, if he wished to seize it, of explaining the activities of the previous night to his Army Commander.

Under cross-examination Abeysinghe said that he never mentioned the word " coup " in a statement, and we allowed further passages P144 B and P1 44 C in which he has used that word to be marked by Crown Counsel. His explanation was that the word " coup " was used by the questioner, Mr. Bandaranaike, and he himself did not use the word. But it has to be observed that in his statements he has used the word "coup" many times, and he has read over and signed his statements.

On this question of Mr. Bandaranaike having been suspected of attempting to stage a coup, we have also the evidence of Alwis who was at Kinross Avenue. Alwis said that when 3rd defendant came there after 8.45 p.m. he summoned the others present, and Alwis went on to say, "He (3rd defendant) then mentioned something about a coup, and he said that it was the duty of all right thinking people to stop it; " also that " for some time he had been obtaining some news that Felix Dias Bandaranaike was attempting to seize power in the country and that an attempt would be made by Mr. Bandaranaike to arrest all the opposition leaders and to set himself in complete power.

Q. That is the coup he referred to ? A. Yes."

Alwis admitted that he made no mention of this threatened coup by Mr. Bandaranaike in any of his statements. Alwis went on to say that 3rd defendant spoke about probable tasks, and he remembered a reference to telephone exchanges-the C.T.O., the Havelock Town Exchange, and probably the Maradana Telephone Exchange. 3rd defendant also had a discussion with 13th defendant as to how long he would take to disrupt communications at the C.T.O., but Alwis could not remember the reply given by Matthysz.

3rd defendant asked Alwis if he would be available to go to Army Headquarters to answer telephones, half an hour after the operation came into force. The Code words " Yathura " and " Holdfast " were mentioned, the former for anybody who wanted to enter Army Headquarters. There was a discussion about Lake House and the ' Times' building, but 3rd defendant said something like 'Leave those fellows alone '. Alwis said that he got excited as a result of what he had heard at Kinross Avenue, and as a result he forgot to give instructions to the men who had been ordered to stand by since that afternoon.

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Alwis also, like Abeysinghe, struck us as being a witness who wished to favour the defence, and we permitted Crown Counsel to cross-examine him about certain statements which he was said to have made at the preliminary inquiry into these offences. He denied the truth of certain statements which were put to him, although he had signed the entire statement at the end, after it was read over. His memory failed him in regard to other passages in that statement. He has admitted that although in evidence he referred to 3rd defendant having stated at Kinross Avenue that Mr. Bandaranaike was attempting to seize power in the country and to arrest all the Opposition leaders, and all right thinking people should do everything possible to stop it, he made no mention of this in his statements. It has not been suggested, as a reason for the omission, that he was asked by anybody to conceal that matter from the interrogators.

What Abeysinghe or Alwis said in their statements before this trial began is not, of course, evidence that can be used to prove the truth of what was there stated. But the portions of those statements which contradict what they said in evidence at the trial give an indication of the value to be placed on their evidence.

We are satisfied that, like Abeysinghe, de Alwis has also gone out of his way falsely to give this evidence, about 3rd defendant referring to Mr. Bandaranaike planning a coup, in order to assist the defence. He, like 10th defendant, has falsely said that Major Caldera induced him to say that a coup was planned at Kinross Avenue by 3rd defendant if he wanted to be released from Jail. He has sought to go back on his letter of 27th February in which he asked for an opportunity to make a further statement, and his confirmation of that letter before the Advisory Committee on 1st March.

According to the 3rd defendant, the purpose for which he summoned the meeting of Army officers at Elibank Road was to " alert" them about suspicious orders they might receive for troop movements. This he did not do at that meeting, because " the position was then not quite definite. " Later, at Kinross Avenue, he did thus " alert " them, and he also conveyed his suspicions of Mr. Bandaranaike. Presumably the 3rd defendant hoped by these means both to prevent the execution of orders given in furtherance of Mr. Bandaranaike's suspected plot and to be himself informed of any such orders. But if as the 3rd and 4th defendants stated, they had on the 26th night confidently expected that Mr. Bandaranaike would " move " on the night of the 27th, it was unreasonable for the 3rd defendant to wait until the evening of the 27th to warn Army officers. Even at 9.00 p.m. at Kinross Avenue, he did not inquire whether any special orders had been given to any Regular unit. Until that time no watch was kept on the movements of General Wijekoon or Commodore Barker, and the surveillance of their houses had been timed only for about midnight. The General could well have been present at Mr. Bandaranaike's house about 7.30 p.m. without the 3rd defendant and the 4th defendant becoming aware of it, just as they did not become

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aware of the Inspector-General's presence at Mr. Bandaranaike's house about that time. According to the 3rd defendant, the only officers who knew earlier of his suspicions were the 2nd defendant and Col. Abeysinghe. If so, many orders could have been given on the 27th on behalf of Mr. Bandaranaike which may not have come to the knowledge of the 3rd defendant. Had the 3rd defendant in fact suspected Mr. Bandaranaike's intentions, he would in our opinion have taken more effective measures on the 27th to " alert " (in his own words) officers against suspicious orders. The version of his suspicions is not supported by such action as he actually took.

It is clear that the Kinross Avenue meeting was arranged only because (for reasons best known to the 2nd and 3rd defendants) the original intention to make some disclosure at Elibank Road was not carried out. The Elibank Road meeting had been summoned for 7.00 p.m., while the meeting of Police officers at Echelon Square had been fixed for 6.00 p.m. At Echelon Square, the 4th defendant gave several orders which have been shown to be quite unconnected with the arrest of Leftists, and to be rather a briefing of officers to restrain Service Commanders and others and to control strategic positions. Doubtless the intended purpose of the Elibank Road meeting of Army officers was the same : the 3rd defendant we hold intended to brief Army officers in just the same way as the 4th defendant actually briefed Police officers at Echelon Square. The decision of the 3rd defendant to delay the briefing intended at Elibank Road, is explained by the 4th defendant's evidence that the 3rd defendant became alarmed when informed about 5.45 p.m. about the questioning of Stanley Senanayake by the Inspector-General.

For reasons just stated we reject the 3rd defendant's version that he intended only to alert Army officers at Elibank Road and that he in fact only alerted those officers at Kinross Avenue.

After leaving Kinross Avenue in Alwis' car with 2nd defendant, 3rd defendant said he stopped at Havelock Town Post Office from where he telephoned to 4th defendant at about 10.00 p.m. 4th defendant informed him that the Navy, Army and Air Force Commanders were at Temple Trees. They both ruled out, as a result of this information, the possibility of Mr. Bandaranaike issuing any orders that night in pursuance of his plans.

4th defendant in his evidence said that before 3rd defendant telephoned him he had been informed by Johnpulle, between 9.30 and 10.00 p.m., that Rajan Kadirgamar had gone to Temple Trees, and when he telephoned Temple Trees he ascertained that the Prime Minister, Mr. Bandaranaike, Inspector-General of Police, D.I.G. C.I.D. and S.P. C.I.D., Army Commander and Navy Commander were all there. He conveyed this information to 3rd defendant. It was soon after this, about 10.15 p.m. according to 4th defendant, that Johnpulle informed

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ten (1) that the Inspector-General had inquired from Inspector Imbuldeniya whether there were motor cyclists at the Traffic station and ordered them to be sent away (2) that the Inspector-General had sent a special message to all Police Officers.

3rd defendant has said that after receiving 4th defendant's information he and 2nd defendant went to the Ceylon Volunteer Force Headquarters. Mr. Ponnambalam argued that 3rd defendant and those who are alleged to have planned to overthrow the Government could, if they wanted to do what the Crown suggests, have cordoned off Temple Trees with the Service Commanders there. But one answer is that the operation was not planned to start at that time but much later. Another answer is that the presence of the Service Commanders at Temple Trees must have caused the alleged conspirators to realise that the plot had been discovered and action was being taken to thwart it.

We have the evidence of Major Chapman as to what happened after 2nd defendant and 3rd defendant arrived at the Ceylon Volunteer Force Headquarters. Chapman said that they arrived there at about 11 p.m. and 2nd defendant informed Chapman that, as he was not going to the Port, Chapman could go home.

Chapman in his evidence explained why he was at the Ceylon Volunteer Force Headquarters that night. He said that 2nd defendant told him that morning that thefts had been taking place in the Port, and took him to task for not visiting the Port frequently. 2nd defendant told him to be at Headquarters about 10 p.m. as he intended to visit the Port and take Chapman with him, in order to check and supervise what was going on there. Although Chapman arrived at Headquarters at about 10 p.m., 2nd defendant did not arrive till about 11 p.m., when he came "together with 3rd defendant. It seems strange that 2nd defendant should have chosen that particular night to visit the Port. It is much more likely that he asked Chapman to come to Headquarters because he intended to use him for some other purpose. There is no reason, otherwise, why he should not have visited the Port with Chapman if that had been his real intention.

The dismissal of Chapman by 2nd defendant appears to have taken place at about the time that 4th defendant told A. S. P. Harold Mendis to inform anybody who came to the Depot that nothing was happening. It was also about that time that 4th defendant told 19th defendant "You can go home. We are not having any hing tonight ", and asked Johnpulle to go and inform Stanley Senanayake and 20th defendant that their men could stand down. 3rd defendant said that before he left the Ceylon Volunteer Force Headquarters he telephoned Abeysinghe and told him that the operation was off.

At about 11 p.m. Harold Mendis came to 4th defendant's house and informed him that he could not get any men from the Depot because Kelaart had said that the I. G. P. had ordered that no men should be

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released. 4th defendant admittedly ordered Mendis to go back to the Depot, wait there, and ask anybody who came there to go away as nothing was happening. 4th defendant said that he then went to sleep.

At the Ceylon Volunteer Force Headquarters where 2nd and 3rd defendants were, 3rd defendant said 7th defendant informed him at about 11 p.m. by telephone that the Army Commander had inquired about the trucks moving in Echelon Square and had summoned him to Temple Trees, and he was going there.

2nd and 3rd defendants then went on from the Ceylon Volunteer Force Headquarters to the Sinhalese Sports Club, from where 3rd defendant went later to the Oval.

At midnight, according to 3rd defendant, Rajapakse telephoned him to the Oval and informed him that Lieut. Colonel Attygalle wanted him to send 3 armoured cars to Temple Trees and asked 3rd defendant for instructions. 3rd defendant said that he told Rajapakse to send them and to let him know what happens.

From the Oval, 3rd defendant said he went out for supper with 11th defendant and 2 others, and he then went home.

At 1.30 a.m. on the 28th, 7th defendant telephoned 3rd defendant again and informed him that 4th defendant, Stanley Senanayake and Johnpulle had been arrested for attempting to overthrow the Government. 3rd defendant said that he telephoned 2nd defendant and informed him, though he had no reason for doing so. He tried to telephone to 4th defendant but he got no reply. He was alarmed, but he did nothing else till 7.30 a.m., when he telephoned to 4th defendant's house and 4th defendant's wife who was in a distressed state informed him that 4th defendant had been taken away the previous night by Army personnel to Welikade. It did not strike him to go to Temple Trees and inform anybody there (as we think he might well have done) what the correct position was, so as to remove all misunderstanding. He claims to have been the leader of the movement against Mr. Bandaranaike's attempt to become a dictator. His inaction at this stage must have puzzled many of his followers.

At 9.30 a.m. 3rd defendant received a telephone message that the Army Commander wanted to see him, so he went in uniform to the Ceylon Volunteer Force Headquarters and from there to Temple Trees.

3rd defendant has supported Abeysinghe's belated version of what 3rd defendant is said to have told him at Temple Trees. 3rd defendant has said that he gave 2nd defendant also the game instructions that morning. We find ourselves unable to accept 3rd defendant's explanation for such conduct, which amounted to instigating these two witnesses to. suppress a fact which they must have known was important. Indeed, it is 3rd defendant's defence that he and 4th defendant conceived the plan which they have spoken to entirely because Mr. Bandaranaike was, in their opinion, likely to attempt to seize power that night. Presumably, they thought they both had reasonable ground for so believing, and also

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justification for so planning. Yet 3rd defendant would have us believe that he told these two officers to say nothing about the motive which impelled him, and of which he said they were aware, because he feared Mr. Bandaranaike might even then seize power. And this notwithstanding the presence at Temple Trees of the Governor-General, the Prime Minister, several other Ministers, and the Service Chiefs and several officers of the Army, Police and other branches. The only person to whom 3rd defendant says he mentioned this matter was his leading Counsel when he first met him. He did not say he even told his Proctor, Mr. Gunasekera, though the latter said that he did so on 13th March. In the result, Mr. Gunasekara's evidence about this alleged statement hag not been supported by the evidence of 3rd defendant, and that is the only comment we need make. We do not believe that even 3rd defendant could have suspected Mr. Bandaranaike of being likely to act in such a desperate manner at that stage, especially as he has said that he felt the Prime Minister would not be a party to what Mr. Bandaranaike was after. 3rd defendant has, moreover, said under cross-examination that after the meeting at Kinross Avenue he and 4th defendant had worked out that the chances of a coup by Mr. Bandaranaike occurring that night were nil. He gave as his reason that the Prime Minister was in Colombo and so were the Service Commanders, and in these circumstances, they could not visualise Mr. Bandaranaike acting. How could he then have thought that Mr. Bandaranaike might seize power when they were all gathered at Temple Trees ? In 3rd defendant's statement there is the same significant omission which is so noticeable in the statements of de Alwis and Abeysinghe. It is not only this matter which has been omitted. 3rd defendant also omitted to mention the meetings he had with officers at Elibank Road and Kinross Avenue. But it seems to us that, if the words " whatever you say, do not disclose that I was after F. D. B." were used in fact, they must have referred to the avowed intention of 3rd defendant to arrest Mr. Bandaranaike. 3rd defendant and Abeysinghe do not say that this intended arrest was disclosed to Abeysinghe, but we doubt whether this step was concealed, as 3rd defendant has tried to make out, since it was the first step to be taken in the counter-action, according to 3rd defendant. We find it difficult to believe that 3rd defendant would have thought it necessary to conceal his intended arrest of Mr. Bandaranaike, if he saw no reason to hide the alleged counter-plan to thwart Mr. Bandaranaike.

We have no hesitation in holding that the plan made by 3rd defendant and 4th defendant and others among the defendants was in no way intended to counter a plan of Mr. Bandaranaike's but a deliberate agreement to overthrow the established Government.

General Wijekoon's evidence is important on the question whether there was a reasonable suspicion that Mr. Bandaranaike would take over the Government of the country. Apart from pavement gossip about totalitarianism, he said that he did not remember any allegations of that sort against Mr. Bandaranaike.

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2nd and 3rd defendants are very senior Army officers who, we should have- thought, would act circumspectly and "with some regard to the not unusual extravagance of language used on occasions by politicians and labour leaders. As recently as 12th January 1E62 General Wijekoon had a conference with Unit Commanders at which 2nd, 3rd, 7th, 13th defendants and all the Commanding officers in Colombo were present, The General addressed them on the subject of rumours that the Army officers were planning a coup, and warned them to be vary careful in what they did and said. He told them that there was no question of the Army interfering in the affairs of Government as long as there was a properly constituted Government, and that as long as he was Army Commander he would not allow the Army to do that.

We have elsewhere referred to 3rd defendant's explanation as to why he did not consult General Wijekoon if he had any fears about Mr. Bandaranaike acting unlawfully. 2nd defendant has not offered an explanation, but 3rd defendant said in evidence that when he told 2nd defendant about Mr. Bandaranaike's possible move to seize power, 2nd defendant's immediate reaction was to inform the Army commander, 2nd defendant perhaps realised then, though he unfortunately seemed to change his mind, that it would ruin any Army if orders were given without the knowledge of the Army Commander.

We feel sure that if 2nd and 3rd defendants entertained apprehensions on this score, they would have gone first to the Army Commander, but if they were still not satisfied with any steps he took they would have gone to the Prime Minister, since it is not suggested that she would have sympathised with Mr. Bandaranaike in any illegal action he took. They did none of these things, and we are satisfied that they did not do so because they never entertained any fears.

General Wijekoon has said that if 2nd defendant or 3rd defendant had informed him that they had such fears, the school solution would have been for him to inform the Prime Minister; if he thought that such fears were absurd, he would have ignored them, or even told Mr. Bandaranaike about the allegation against him. The General's view of this matter strikes us as reasonable. We can see no satisfactory explanation, from the point of view either of common sense or of Military discipline, of the course which 2nd and 3rd defendants took in the way of giving orders to Army personnel unknown to the Army Commander. In our view they took advantage of their senior positions in the Army to subvert some officers who were too junior to question their orders, and to enlist other officers who fell in with their plan, in a treasonable conspiracy.

Mr. Wikramanayake and Mr. Ponnambalam addressed us on the matters which led 3rd and 4th defendants to have a belief that Mr. Bandaranaike would seize power in an illegal way. They were mainly

(1) The part played by Mr. Bandaranaike in terminating the Sathyagraha movement in the Northern province in April 1981. 4th defendant claimed that Mr. Bandaranaike wanted him to give Aradt ail order to

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we force on the Satyagrahis, but he refused. Undoubtedly the position in the North at that time was grave, and that is why a state of Emergency was declared. We do not see anything objectionable in a lawful attempt to restore order, and we do not think anything unlawful was attempted by Mr. Bandaranaike. Operation Show-down was brought into operation for this purpose and it proved effective. It was an operation drawn up by the Security and Defence Committee, and not an operation planned by Mr. Bandaranaike alone.

(2) The part played by Mr. Bandaranaike in having an Appreciation (P 123) of October 1961 worked out by the Service Commanders on data supplied by Mr. Bandaranaike. It is absurd to suggest that this plan for the maintenance of public security and essential services was a step taken on the path to dictatorship. 3rd defendant apparently wondered why a total breakdown of these services was feared. His optimism seems to have been unjustified, to judge by what happened a few months later, when a wave of strikes overtook the country.

A second Appreciation was drawn up by the Service Commanders and the I. G. P. on 12th December 1961 (P 123A). At that date the C. T. B. employees had been on strike for 3 days. It was feared that the Oil Company employees may strike, Railway and Harbour workers were being incited to strike, a general strike of estate workers could not be discounted, and a disruption of vital services was possible. These are some of the matters referred to in that Appreciation. We are unable to see that any inference can be drawn against Mr. Bandaranaike from the fact that he obtained an Appreciation at this time. He deserves commendation and not criticism for having asked the Service Commanders to prepare for any eventuality. It is fantastic to argue that by being energetic and farsighted he was creating a reasonable apprehension of wanting to become a dictator.

He did seem to make a bold claim when he said in evidence that he never uttered a falsehood in his life. He could hardly have meant what he said. For instance, he played a greater part in giving instructions to the Service Commanders, for the making of plans to deal with possible emergencies, than he seemed willing to admit. He played a prominent part in the drafting of Operation Showdown, according to General Wijekoon, though he was not willing to admit it. He could hardly have failed to hear of the Security and Defence Committee from a very early stage of his career as Parliamentary Secretary, but at the commencement of his evidence he was not prepared even to say that he had heard such a name. In drafting the White Paper (4D5) he made a few errors which have been referred to in the course of his cross-examination.

It must have often happened that the Prime Minister consulted him as to how to deal with different situations that arose during the troubled year 1961. We do not think that he made decisions for her, or that he had any intention of ousting her and becoming a dictator. It is

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only too easy to charge anybody who is in a position of power with wanting to become a tyrant. And if the Prime Minister did consult him, it only means that she had confidence in his ability as an adviser.

(3) A speech made by Mr. Bandaranaike in December 1961 about the C. T. B. Strike. 3rd defendant thought that it undermined the previous strong position in which the Government stood in relation to the strikers. He has failed to realise that the Government showed no disapproval of that speech, and in fact the offending Circular issued by the Board was withdrawn-obviously with the approval of the Government-because it was thought to have been issued irregularly. It may have caused the strikes which followed, but we do not see how Mr. Bandaranaike can be suspected, over this sequel, of wanting to become a dictator. By some curious reasoning, 3rd defendant seemed to arrive at the conclusion that Mr. Bandaranaike, who had the Appreciation prepared in October 1961, deliberately brought about the strike situation in December 1961 to serve his own purpose.

(4) Speeches made in Parliament and elsewhere that Mr. Bandaranaike was trying to seize power. A belief in the truth and reasonableness of all charges made by politicians and others against those whom they dislike indicates an unduly credulous nature, which we should hardly have thought to be a trait of senior officers like 3rd defendant and 4th defendant. Mr. Ponnambalam even argued that these speeches showed that the Prime Minister was a prisoner of, and helpless against, Mr. Bandaranaike. We do not believe that either 3rd defendant or 4th defendant was so childish as to attach importance to these speeches. Nor do we accept Mr. Ponnambalam's other novel theory that politicians do not make reckless charges.

Additional incidents in Mr. Bandaranaike's official acts which Mr. Wikramanayake pointed to, as showing his desire to act like a dictator, were:-

(a) The search of ships of the Ceylon Navy for smuggled goods, despite 4th defendant's opposition which was over-ruled by Mr. Bandaranaike. If smuggling was suspected, a search made as quickly as possible is not unreasonable.

(b) An address given by Mr. Bandaranaike at the Police Training School which 4th defendant disapproved of as being conducive to indiscipline. This is a matter of opinion, and there may be two opinions as to the desirability of such an address.

(c) Mr. Bandaranaike's dress on the occasion of a Police Mess dinner which the Governor-General attended, and his late arrival at the dinner. These are matters of taste and etiquette. If the senior Police officers thought that Mr. Bandaranaike had -offended against their traditions, they had the remedy in their hands: if they refrained from inviting him again, he would soon have got to know where he had erred.

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(d) Incidents opposite Temple Trees and at the Airport in which ladies were concerned. Mr. Bandaranaike's reaction to the protests which these ladies made and their manner of making them was disapproved by 4th defendant. There was also the incident when schoolboys staged a protest outside Lake House. It may be that Mr. Bandaranaike was hasty in acting against those who made such protests, and was inclined to brush aside opposition too readily. Intolerance of opposition is unfortunately not uncommon among the men who hold power, but does not justify the opinion that such men aspire to dictatorship.

(e) A speech by Mr. Bandaranaike at the United Nations, when he is said to have referred to the desirability of a one-party system of Government. He was quite entitled to express his views either abroad or at home, but he paid in evidence he was not a believer in one party Government and that he believed in Parliamentary democracy. He made a speech at a meeting of the Ceylon-Soviet Society about " a little bit of totalitarianism " possibly being a good thing for Ceylon, if it could achieve what a totalitarian form of Government achieved for Russia. These are debateable questions of political theory, and it would be an unfortunate state of affairs if anybody were to be prevented from expressing his views freely on them. Mr. Bandaranaike, like any other citizen, was entitled to do so. Freedom of speech is more than a mere catchword in a democracy.

Neither his speeches in this field, nor his actions to which we have referred, could have caused 3rd defendant or 4th defendant to have a reasonable apprehension that he wanted to be a dictator. They were high-ranking officers and we credit them with a sounder judgment than they pretend to have. But if they had any apprehensions on this score, we feel sure that they would have discussed them with the Governor-General or the Prime Minister or the Army Commander. 3rd defendant said that he and 2nd defendant thought at one time of going to the Army Commander, but decided against that course. The reasons he gave are entirely groundless. Their defence was that they were working together in order to frustrate Mr. Bandaranaike. Whether this was their object or whether their object was to overthrow the Government, can only be decided upon a review of all the evidence. But it is certainly relevant to consider whether they could have reasonably feared that Mr. Bandaranaike's conduct pointed to his aiming at dictatorship,

Mr. Abeykoon's evidence was attacked as false in certain respects by Counsel appearing for the defendants. In some matters he may well have failed to remember details correctly and we have had instances

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of that. For example, he said that the order made on the 27th night was merely that Stanley Senanayake should be brought to Temple Trees, and not that he should be arrested and brought. He has been contradicted on this point by many prosecution witnesses who said that the latter order was in fact given. His denial that 19th defendant was his personal Assistant is less excusable, for he must surely have remembered the many occasions on which 19th defendant functioned in that capacity and did work which had nothing to do with the work of a Social Secretary. He pretended ignorance of the drafting of the Appreciation by the Service Chiefs and himself in December, 1961, on data supplied by Mr. Bandaranaike, to which General Wijekoon has spoken.

There were complaints against him that he ordered transfers of Police officers on political grounds, and was unduly submissive to Members of Parliament. Whatever the truth of these matters may be, Abeykoon appeared at times to have acted in such a way as to create that impression. Matters came to a head in connection with his treatment of Headquarters Inspector Dayaratne of Bandarawela whom he admittedly ordered to come to Colombo immediately merely because the Member of Parliament for Bandarawela had made a complaint against him over the telephone. Abeykoon gave an assurance through a D.I.G., at a meeting of the Central Welfare Council held on 4th June 1961, after the officers of that Range had protested against his action, that if a Member of Parliament complained against a Police Officer inquiries would first be made, and no action would be taken by him unless the allegations were found to be correct.

The most serious allegation against Abeykoon was that he allowed his better judgment to be overruled when it came to dealing with members of the Government Parliamentary Group, and the case of Abdul Latiff strikes us as a particularly bad instance of Abeykoon's inability to stand up to pressure from this direction.

We do not intend to refer to all the documentary evidence produced, but it is apparent that a petition was sent by Abdul Latiff that he had paid Rs. 5],500/- to the Member of Parliament for Bandarawela in order to obtain Ceylon citizenship.

Abeykoon as acting Permanent Secretary, Ministry of Defence and External Affairs, received the petition. The complaint in it was that, although the petitioner had paid Rs. 5,500/- to this Member of Parliament who promised in return to get him citizenship, the petitioner had been arrested and was awaiting deportation.

On 20.9.62 Abeykoon asked A.S.P. Simon Perera only to examine the books at the Avissawella and Belihul-oya Rest Houses. No further inquiry was ordered by him. He received the A.S.P's report on these books and then made the minute "No useful evidence. May be deported", on 22.9.62.

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The same petition came to Abeykoon cm 11.10.62, in his capacity as I. G. P., from the Bribery Commissioner, who expressed the opinion that it was a case of cheating and not of bribery. It was suggested to Abeykoon as I.G.P. by one of his junior officers that the complaint should be sent to the C.I.D. for investigation, after permission was sought from the Speaker of the House of Representatives. He then made the minute " I do not think that any further action is necessary. Papers may be tied," on 18.10.62.

The petition of Abdul Latiffwas also sent to Abeykoon by the Attorney-General for report. When a junior officer suggested that it should be sent to the Superintendent of Police, Uva for a report, Abeykoon minuted on 24.10.62 " I do not know why the A.G. has sent this to us for report. Return Mr. Latiif's complaint to A.G. as follows: 'A copy of this petition was sent by me to the Bribery Commissioner for favour of disposal. He returned it to me stating that according to the statement made by Mr. Latiff to the Bribery Commissioner it appears to be a case of cheating and not of bribery. It is difficult for this Department to report on allegations of this type.' " A letter dated 1.11.62 was written to the Attorney-General in these terms by Abeykoon.

The Attorney-General then asked Abeykoon whether the Police had recorded anything in connection with the petition, and asked for a certified copy of the investigation made. When it transpired that no investigations had been made, the Attorney-General asked for a careful investigation because serious allegations had been made against the Member of Parliament: he also asked that the statement of the Member of Parliament should be recorded and sent to him. Abeykoon made a minute dated 22.2.63 which reads :-" I telephoned to the A.G. himself re this. No action necessary till he looks into it. " The reluctance of Abeykoon to direct his officers to carry out an investigation is astonishing.

On 11.3.63 the Attorney-General, according to the minute in the file, referred to a conversation he had with the I. G. P. and suggested that further action be taken on certain points. One of Abeykoon's juniors enquired whether the local Police or the C.I.D. should make this inquiry. Abeykoon then ordered that the file should be sent to the Permanent Secretary, Defence and External Affairs, and his advice obtained as to whether action should be taken as suggested by the Attorney-General. On 5.4.63 Abeykoon received the Permanent Secretary's reply that the I.G.P. should proceed to initiate action as suggested by the Attorney-General.

Mr. Kannangara correctly remarked that the conduct of Abeykoon IS this matter showed that he was ready even to flout the instructions of the Attorney-General. If he has been suspected of acting in this way because of a burning desire to shield the Member of Parliament, he has only himself to blame. It is indeed regrettable that he did not think that as Inspector-General of Police it was his duty to have a

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complaint of this nature investigated. What is more, when he was advised, by the person most competent to judge, of the desirability of an investigation, he deliberately obstructed this course. It was disquieting to hear that a public officer of Abeykoon's standing gave the impression that he was influenced, in the exercise of his functions, by considerations of political expediency.

Abeykoon was rash enough to say at one stage of his cross-examination, when asked whether he tried to find out the conditions in which the Police officers were detained, " To my mind rightly or wrongly they were people who were traitors to this country and I cannot take any interest in them. " Then he was asked the question : " Of course such a thing as presumption of innocence did not arise at any time as far as you were concerned ? " and he answered : " I have said so."

He played a very minor part in the investigations which took place from midnight on the 27th January, and was only a sort of figurehead Mr. Bandaranaike, it is quite clear, directed the investigations. But Abeykoon has said in evidence in a defamation case brought by Mr. Bandaranaike that the investigation was directed by him with the assistance of some senior Police officers. This was incorrect evidence given with a view to assist Mr. Bandaranaike. It comes into conflict with Mr. Bandaranaike's evidence, given at this trial, that he was in charge of the investigations at Temple Trees at the request of the Cabinet. We have borne in mind all these blemishes in Abeykoon's behaviour, when assessing the effect of his evidence.

We have also remembered that Mr. Bandaranaike, who did most of the questioning of witnesses in the course of the inquiries, was in a sense one of the aggrieved persons.

We are reluctantly compelled to state our opinion that the independence and integrity, which should characterise a Police Service functioning under the Rule of Law, must have been much undermined during Abeykoon's period of office as Inspector-General. Although he was not on trial himself, his weak conduct was put in issue quite clearly in the course of his cross-examination, and he had ample opportunities to explain or deny his conduct as Inspector-General.

When considering the evidence of 3rd defendant and the defence he has put forward, viz. that his plan was only to arrest Mr. Bandaranaike and Mr. N. Q. Dias in order to thwart a possible coup d'etat by Mr. Bandaranaike, we have also to take into account his statement (P159) made at Temple Trees on the afternoon of 28th January. He has admitted that it was a voluntary statement, not influenced by any threat, inducement or promise by anybody. He has, however, said that there are omissions in the recording made by Mr. Selvaratnam because the latter could not have kept pace with the rate at which the questions and answers were spoken.

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That part of the statement relating to 3rd defendant's conduct starts with the following passage: " I accept full responsibility for all that happened last night. I would have made the attempt to request the Governor-General to run the country. My plan was to hand over the Government of this country to the Governor-General. He was not involved in this. He knew nothing of it. I wanted to get into Queen's House and request him to take over the Government."

3rd defendant said he was thinking, when he said this, of 4th defendant and Stanley Senanayake who had to arrest Mr. Bandaranaike and Mr. N. Q. Dias, and his part in arranging for those arrests. Yet he also thought, when he said this, that they had been locked up for attempting to overthrow the Government, and in spite of this he took the responsibility.

He has denied having said (1) that he would have attempted to request the Governor-General to run the country, or (2) that his plan was to hand over the Government of this country to the Governor-General; he has also not admitted that he said (3) that he wanted to request the Governor-General to take over the Government. With regard to the appearance of these words in the statement, he has only admitted to saying that he wanted to go to the Governor-General and request him to take over or take charge of the situation, the " situation " being the situation which 3rd defendant would have created by the arrest of Mr. Bandaranaike and Mr. N. Q. Dias.

We do not accept this explanation put forward by 3rd defendant. We are satisfied that he did make the three statements which we have quoted and numbered. What is more, there appear later in the statement the following sentences: " Had the arrests" (which we shall presently refer to) " been made successfully it was my intention to make a request to the Governor-General almost immediately to take over the Government " and again " it was intended that after Mr. N. Q. Dias and the Parliamentary Secretary were arrested and while the arrests of the Leftists was proceeding, a request be made to the Governor-General to take over the Government." It is incredible that Mr. Selvaratnam should have made all these alleged mistakes of recording on such an important matter.

Immediately following the passage quoted earlier, there is the following passage: " I intended to do certain preliminary things. One of the things was to apprehend the Parliamentary Secretary, Ministry of Defence & External Affairs and Mr. N. Q. Dias. Mr. N. Q. Dias or the Parliamentary Secretary could issue lawful orders to prevent the plan." There is here a clear reference back to the word " plan " in the earlier passage, and that passage has explained what the plan was, viz. to hand over the Government of this country to the Governor-General. 3rd defendant has tried to explain that he could not tell Mr. Bandaranaike that the reason for his arrest was that Mr. Bandaranaike was suspected of trying to seize power. But what was the reason for giving an untruthful explanation, when in other instances 3rd defendant resorted to the expedient of declining to answer a particular question ?

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The statement goes on " It was not the plan to apprehend the other Ministers. It was not the plan to arrest the Prime Minister. It was hoped that she would acquiesce in the situation. It was not the plan to apprehend all or any of the Service Chiefs or the Inspector-General of Police. It was not the plan to apprehend any of the Government servants, but D.I.G., C. I. D. was considered dangerous to our plan. It was hoped if it was possible to arrest the Leftist and Communist laders. By Communist leaders I mean Dr. N. M. Perera, Bala Tampoe, S. P. Amerasingham, Dr. Colvin R. de Silva. I cannot be sure of the number of Communists and Leftists to be arrested. The list of Communists to be arrested was a substantial list. It included Philip Gunawardena, Robert Gunawardena and Pieter Keuneman."

According to this passage, apart from the arrest of Mr. Bandaranaike and Mr. N. Q. Dias there was contemplated also the arrest of the D.I.G., C. I. D. and of Leftist and Communist leaders - and all these arrests were, according to the ordinary meaning of the words used, part of the plan. 3rd defendant has denied in evidence that it was intended to arrest the D.I.G., C. I. D., and the reason given by him was that 4th defendant said that this officer was not a man who could command any support, and it was only necessary to watch his movements.

With regard to the other arrests of Leftists and Communists, 3rd defendant has said that these arrests were not part of their plan but were to be made only when an order came from the Government to that effect - a fact which he has studiously omitted to mention in his statement. He has attributed the wording of this part of the statement to bad recording, but this explanation will not account for the particular names of those to be arrested. If, as 3rd defendant has Said, he only mentioned Philip Gunawardena's name and said " Yes " to the other names that were suggested, why did he say "Yes " if he did not know in fast that those were names appearing in any Government order ? And why did he not say, what he now says, that there was a tentative proposal known to the I .G. P. which related to the arrest of at least some of these persons, and which he intended to adopt ? Why did he not mention that there was a list of Leftists to be arrested which the I.G.P. had shown 4th defendant and which 4th defendant had shown him ? It has nowhere been stated by 3rd defendant or 4th defendant that any action was taken by either of them to arrest these seven persons through Stanley Senanayake or any other particular Police officers mentioned by name.

The statement proceeds : " I conceived of this plan about a month ago. Last night could have been one of the nights it could have been attempted. The plan has been abandoned now. It was not part of the plan to arrest the Governor-General. Had the arrests been made successfully it was my intention to make a request to the Governor-General almost immediately to take over the Government." The last sentence has already been commented upon . 3rd defendant has

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stated that if he used those words it was only with reference to the Governor-General taking over the immediate situation. The reference to the plan having been conceived about a month previously is explained by 3rd defendant as an indirect reference to Mr. Bandaranaike having let down the Prime Minister and the Government over the C.T.B. strike early in December 1961 by a speech he made in Parliament, thereby causing several subsequent strikes. There is absolutely no evidence to suggest that Mr. Bandaranaike could have been suspected at that time of acting in that matter against the views of the Government.

There follows the sentence : " The reason the Parliamentary Secretary and the Permanent Secretary were considered dangerous was that they could issue lawful orders to the Services." Obviously this is a reference to the earlier passage where 3rd defendant has stated that these two persons " could issue lawful orders to prevent the plan." Hence it is clear that they were to be arrested in order that this plan could be carried out.

The next sentence is " I did not think that the Prime Minister will be in a position to effectively prevent the plan and I hoped she should acquiesce." 3rd defendant has said in evidence that he was here referring to his plan, and the words can only mean that he hoped the Prime Minister would acquiesce in the plan which he had already explained. There is a significant passage later in the statement, which runs thus: " By acquiescence on the part of Mrs. Bandaranaike if our Coup succeeded I mean that I had hoped that Mrs. Bandaranaike would agree to accept Sir Oliver as a Constitutional Dictator. I had heard that she frequently threatened to dissolve Parliament owing to difficulties within her party." 3rd defendant has by using these words " Constitutional Dictator ", which he has admitted he used, thrown a flood of light (1) on the earlier sentences regarding the action he intended to take with reference to the Governor-General, and (2) on his contemplated attitude to the Prime Minister. It is idle for him to say, as he did in evidence, that he only meant that the Governor-General would consult and speak to the Prime Minister about taking charge of " the situation " after the arrest of Mr. Bandaranaike and Mr. N. Q. Dias. It is not possible for us to overlook the significance of the expression " Constitutional Dictator". 3rd defendant surely did not think that consultations between the Governor-General and the Prime Minister - even after the arrest of her Parliamentary Secretary - would convert the Governor-General into a Constitutional Dictator.

The statement goes on: " It was I who determined the timing and planning of this operation. It was about 2 or 3 days ago that I decided that last night should be the night. It was not essential to our plan that the Communists should be arrested before the request was made to the Governor-General. It was intended that after Mr. N. Q. Dias and the Parliamentary Secretary were arrested and while the arrests of the Leftists were proceeding, a request be made to the Governor-General

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to take over the Government." The last sentence contains the fifth reference to the intention to request the Governor-General to take over the Government. It cannot reasonably be argued that there were as many as five instances when 3rd defendant was misunderstood on this point by Mr. Selvaratnam who, according to 3rd defendant, has written " Government" when he should have written " situation". Not one of these alleged mistakes in recording has been corrected by 3rd defendant when the statement was read over before it was signed by him. 3rd defendant has conceded, quite rightly, that if he did in fact say that the Governor-General was to be requested to take over the Government, that is a position quite inconsistent with his defence.

The passage quoted also makes it clear that 3rd defendant has admitted to the night of 27th January being the night chosen by him for the operation-whatever it was-to be launched. Evidence given by many prosecution witnesses has pointed clearly to their having been informed that the 27th night was to be an eventful night.

In this passage, as in an earlier one, 3rd defendant has referred to the arrest of Leftists which was to be a preliminary step. Though he has said in evidence that such arrests were not part of his plan but was part of a Government order which was expected, his words do not bear this out, for in this passage and in the earlier one the arrest of Leftists is made part of his plan, though not a part which had to be completely carried out before the request was made of the Governor-General.

3rd defendant's evidence that the time of putting his plan into operation depended entirely on Mr. Bandaranaike acting is not borne out by his words " It was about 2 or 3 days ago that I decided that last night should be the night ", coming as they do immediately after the words " It was I who determined the timing and planning of this operation. " 3rd defendant has a good command of the English language, and these words cannot possibly be given the meaning he now asks us to give them : nor do we accept his explanation that the word " should " is a mistake for " would ".

This view is confirmed by the next sentences in the statement: "It was not possible to arrest Mr. Dias or the Parliamentary Secretary because the plan was called off. It was considered the best time for the operation was some time after midnight. The stage of putting the plan into operation was not reached because the plan was called off.

Q. Why was it called off ?

A. I rather not answer it.

Q. Is it because the Prime Minister had become aware of your plan ?

A. I rather not answer it.

Q. At what time did you decide to call off the operation ?

A. I rather not answer it. "

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According to 3rd defendant, the reference to the " best time for the operation " is merely a reference to 4th defendant having said that the arrests he would have to carry out on the orders of the I.G.P. would be made after midnight, as political arrests are normally made after the cinemas have closed down. The word " best " would not have been used if that had been intended. Apart from the two references in this passage to the plan being called off, there was the earlier one where 3rd defendant said " The plan has been abandoned now " and there is a later one where he has said " Up to the time I called off this plan I did not doubt the loyalty of the participants." Yet we are asked to accept 3rd defendant's evidence that there was really no question of his calling off a plan, and that the true position was that his plan was dependent on Mr. Bandara-naike moving to seize power. The general tenor of the statement is against this position. It can only mean that 3rd defendant thought that the " best " time from his point of view was after midnight. Moreover, we have had no independent testimony to support the suggestion that " political arrests " are usually made after midnight.

The next passage reads: " I was not in a house at Frances Road, Wellawatte, or in any other place at Wellawatte at any time last night. I do not think I was in any place at Wellawatte last night. I was not in Mr. Maurice de Mel's brother's house at Wellawatte last night. " 3rd defendant has also denied in evidence that he went to Frances Road that night. He has also explained that although he was doubtful about it at one stage, in bis opinion Kinross Avenue is not in Wellawatte. We have dealt with the meeting at Frances Road in another part of this judgment, where we reject the 3rd defendant's denial of that meeting.

Then follows this passage : " I did inspect the ammunition magazine at Army Headquarters about 10 days ago. My inspection was in connection with this plan. I intended that Mr. N. Q. Dias the Permanent Secretary and the Parliamentary Secretary should be temporarily accommodated in the ammunition Magazine. The Leftists were also going to be kept there. The Magazine has a room outside it. The room is provided with fans. " 3rd defendant's evidence is that he inspected the Magazine only because he was searching, at 4th defendant's request, for a safe place in which the Opposition leaders could be kept if they were arrested on orders given by Mr. Bandaranaike. The statement is different, because instead of keeping Opposition leaders there he has admitted that he intended to keep Mr. Bandaranaike, N. Q. Dias and Leftists there. While the statement mentions that his inspection was connected with this plan, 3rd defendant has said in evidence that he actually had nothing in mind about his plan when he made either his 1st or 2nd inspection of the magazine. His explanation is that he had expressed himself loosely in this part of his statement.

The next passage is : "I realize the seriousness of what I was doing to the Government. I think I broke my oath. I think I have committed a very serious crime. " 3rd defendant said in evidence that instead of " doing " he used the word " saying ", but in fact Mr. Selvaratnam

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first wrote " saying " and corrected it to " doing ", and 3rd defendant admitted that he saw that correction: yet he did not alter it. 3rd defendant has also denied in cross-examination that he said that he thought he had broken his oath. His position is that when Mr. Bandara-naike said " You have broken your oath " he replied " If you say so I suppose so. " Yet in examination in- chief, 3rd defendant gave the following explanation of this sentence, viz., that Mr. Bandaranaike asked him " Do you realize that you have broken an oath " ? and he replied " I think so ". His explanation of this answer is that he had not taken the Army Commander into his confidence. With regard to the words " I think I have committed a very serious crime ", 3rd defendant said in examination-in-chief: " I think he (Mr. Bandaranaike) said when he was questioning me, by breaking your oath you have committed a serious crime or some such thing ", but he has not denied that he said what appears in the statement.

There follow the following words in the statement: " I do not wish to disclose the names of any persons who took any part in the plan or its execution. I say I am the leader of this whole business.

Q. Why do you say you are the leader ?

A. Because I give the orders and direct the operation. "

3rd defendant has here admitted that there were others involved with him in this plan, but he had resolved that he would not disclose the names of any of them at the questioning.

The statement goes on: " The plan was that the Army Commander should not hear of the plan at all till it was carried out. But if he did hear of it, he was to be restrained. " Under cross-examination 3rd defendant has admitted that it was his intention that even if the Army Commander was sent for by the authorities he was going to be restrained. In examination-in-chief his position was that the plan was to have certain Police personnel guarding the houses of the Army Commander, the Navy Commander and the Air Force Commander; if they tried to leave their houses they were to be informed that 3rd defendant had given orders and they could contact either the 3rd defendant or 4th defendant; if they left their houses, the Police officers were to watch their movements. Later in the statement 3rd defendant is recorded as having stated : " I think as in the case of the Army Commander arrangements had been laid on to restrain the Navy Commander and the Air Force Commander if the need arose. " It seems reasonable to conclude that when 3rd defendant used the word " restrain " he meant what he said.

The next passage is: " I felt that my forces were a bit thin on the ground. I realise that what I state now can result in my being placed under restraint. "

Yet 3rd defendant said in evidence that they had no forces, and that is what he meant to say when he used these words. He has also said in evidence that they made a definite decision that they were not going to we

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troops in action, as that would create chaos with troops fighting each other. He denied a suggestion put to him in cross-examination that he summoned the Commanding Officers of various Regiments to Elibank Road and Kinross Avenue because he wanted to use their units. He explained that he merely wished to forewarn them of any deployment by Mr. Bandaranaike. It is difficult to reconcile these statements in his evidence with his express reference to " my forces ".

The next passage is: " There is no religious basis behind this plan of mine. Up to the time I called off this plan I did not doubt the loyalty of the participants.

Q. Are you a U. N. P. man ?

A. I vote U. N. P. as a rule.

I have not discussed this plan either with Sir John Kotelawala or Mr. Dudley Senanayake. The operation is entirely non-political. I do not know whether any of my participants put this plan to Sir John Kotelawala or Mr. Dudley Senanayake. As I was the leader, I certainly could not have asked either of them." These statements, which must have been answers to questions, call for no comment by us.

The next sentence is: " I hoped that the Governor-General would see reason and accept the position that the coup was a fait accompli." The statement for the first time has the word " coup " where the word previously used was "plan". 3rd defendant's explanation in evidence is that Mr. Bandaranaike used the word " coup " and asked him the question " Did you expect the Governor-General would accept the position that the coup was a fait accompli ? " to which he probably answered " I hoped he would consent." Under cross-examination he was asked why he did not tell Mr. Bandaranaike that there was no coup, and his answer was that if he was given time to answer he might have said something like that. It should have been easy for him to say the obvious thing, and the thing which he should have been anxious to say if there was no coup contemplated. In the course of the next 4 paragraphs of the statement the word " coup " appears eight times. 3rd defendant's position in evidence was that Mr. Bandaranaike was trying to involve him, and had at a very early stage tried to pin him to the position that he was going to run the country, which is something he had never contemplated. It is therefore all the more surprising that he should have allowed the word " coup " to occur nine times in his statement, and also implicated himself as a participant in it. In his evidence 3rd defendant said that his plan was merely to arrest Mr. Bandaranaike and Mr. N. Q. Dias and report immediately to the Governor-General and place the evidence before him. The language of this sentence certainly connotes something more than this.

The next passage is : "It would have been bad tactics to inform Sir Oliver beforehand. I considered it would have been bad tactics to inform

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the Prime Minister beforehand. I think as in the case of the Army Commander arrangements had been laid on to restrain the Navy Commander and Air Force Commander if the need arose."

There followed a question " Did your plan envisage taking of any key points ? " to which 3rd defendant answered " I rather not answer this question." He could well have answered " No " if he did not in fact intend to take any key points. He has made certain denials in different parts of his statement and he could have done the same here if there was no plan to take any key points.

There follows the following passage which is of considerable significance. " If the Governor-General did not accept our proposal we were in a doubt as to what we should do. If the G. G. did not react favourably to our proposal we certainly did not intend to shoot him nor did we intend to dismantle our coup and pack up nor did I see myself as a person acceptable to the country. In that case we would come and ask Mrs. Bandaranaike to agree to serve in the changed circumstances. If she refused I would not have asked any political leader but by then I would have expected my coup to be a failure. If Mrs. Bandaranaike refused I would not have suggested offering to the U. N. P. because (a) they are not the party in power, (6) I did not think that they had the men to do it. If Mrs. Bandaranaike had refused, I had not thought of offering to any other Minister ha the present Government."

We can only relate the word " proposal" here to the repeated statements appearing earlier that the plan was to request the Governor-General to take over the Government and run the country. It surely means something more than merely offering some evidence or information to the Governor-General against Mr. Bandaranaike, to the effect that he had ordered the arrest of his political opponents, and asking the Governor-General to check upon it. The word '' proposal" would be quite incongruous in such a context. And if that was all that 3rd defendant intended to do on going to Queen's House, and the Governor-General did not accept the evidence or information, there was nothing more to be done. Why did 3rd defendant go on to say " If the Governor-General did not react favourably to our proposal we did not intend to shoot him nor did we intend to dismantle our coup ? " And what was the necessity to " ask Mrs. Bandaranaike to agree to serve in the changed circumstances " which 3rd defendant said meant only " without Mr. Bandaranaike "? The intended invitation to Mrs. Bandaranaike, which was only to be made if the Governor-General did not react favourably, can only mean that she was to be asked to run the country as a substitute for the Governor-General who was the first choice. We think that " the changed circumstances " was only a euphemism for " under the aegis of the conspirators who had brought about a fait accompli." Although 3rd defendant has said in evidence that he did not dream of ousting the Prime Minister, the idea of ousting her is implicit here, because it is plain

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that the Government of the country was to be entrusted to the Governor-General and Mrs. Bandaranaike was to be brought in to serve only if the Governor-General refused to accept the new set-up.

We have already expressed our view that the words " If the Governor-General did not accept our proposal" cannot possibly mean " If the Governor-General did not accept the evidence or information which we would have had against Mr. Bandaranaike. " The sentence in the statement actually reads" If the Governor-General did not accept our proposal we were in a doubt as to what we should do. " Yet in the examination-in-chief, after an explanation of the arrangements taken to restrain the Service Commanders if the need arose, there occurs the following passage :-

" Q. In regard to the rest of the arrangements, your plan was to report immediately after the arrest of those two individuals (i. e. Mr. Bandaranaike and Mr N. Q. Dias) to the Governor-General ?

A. Yes.

Q. And place evidence before him ?

A. Yes.

Q. Were yon asked any question as to what you would do if the Governor-General rejected your evidence ?

A. I knew what we were going to do. I heard various versions of it. They all indicated what I intended to do.

Q. Which was ?

A. If we carry swords, we hand the swords over.

Q. As a token of surrender ?

A. Yes.

Q. The expression used in the language of the Army Commander was that you felt you would be in a spot ?

A. I must have said that.

Q, That is if the Governor-General would not accept ? A. As far as we were concerned it was all up.

This is hardly the same as saying " we were in a doubt as to what we should do."

There followed this question and answer:-

Q. Then were any questions addressed to you on the hypothesis, upon the possibility of the Governor-General accepting ?

A. Yes.

We can find nothing in the recorded statement to justify this question being put. The questioning of 3rd defendant by his Counsel up to this stage proceeded on the basis that the words " accept our proposal"

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meant " accept our evidence ", but we have rejected that interpretative of the statement.

Then followed these questions put by Counsel and the answers given by 3rd defendant:-

Q. Colonel de Saram, what reasons did you have to expect the Governor-General to accept your evidence on that action you took ?

A. I was pretty sure that this was not a Government plan. Had it been a Government plan he would have known about it in which case we were on the mat for a grave error of judgment.

There followed more questions and answers and then-

Q. On the hypothesis that the Governor-General would accept your representation, he asked what you expected to do in regard to the Prime Minister and what was your answer ?

A. I thought he would send for the Prime Minister.

Q. And what did you expect her to do ?

A. I thought she would continue to serve in the changed circumstances. I indicated to him that she would be without Mr. Bandaranaike.

Q. You expected her to serve in the changed circumstances ?

A. Yes.

Q. The changed circumstances would be the deprivation of the services of Mr. Bandaranaike on whom to your knowledge she leant very heavily ?

A. I did not know whether she leant on him very heavily at that time. This last answer must have taken 3rd defendant's Counsel by surprise, for it waters down considerably the interpretation of " changed circumstances " which 3rd defendant had already given.

A reading of the statement also shows that these questions put by 3rd defendant's Counsel were put on a false premise. The statement clearly proceeds on the footing (1) that Mrs. Bandaranaike was to be asked to serve not by the Governor-General but by 3rd defendant and his followers, and (2) she was to be asked by them to serve only if the Governor-General did not react favourably to their proposal, (which was clearly a proposal to take over the Government, and not merely the placing of information or evidence).
This is made clearer still by the next passage in the statement:-

" I had staked the entire success of this coup on the entire chance that Sir Oliver would fall in line with the coup. It was my own thinking that led me to this belief. I could not have trusted Sir Oliver far enough to have taken the risk of ascertaining his views beforehand, although I stoked the entire chance of our success upon the certainty that Sir Oliver would accept our proposal. I do not know Sir Oliver personally very well."

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In his evidence 3rd defendant did not dispute that he had said this, but he again explained that this referred to the Governor-General accepting the evidence he intended to produce. It is impossible to accept this explanation which ignores the use of the word " coup " twice in this passage. The passage is in fact an elaboration of the earlier sentence " I hoped that the Governor-General would see reason and accept the position that the coup was a fait accompli. It would have been bad tactics to inform Sir Oliver beforehand. " But here again we find it necessary to comment on certain questions and answers which appeared in the examination-in-chief of the 3rd defendant. They read:-

Q. I took you on to the questions addressed to you of various alternatives presented to you in the event of the Prime Minister refusing to serve under the changed circumstances ?

A. Yes.

Q. When those alternatives were exhausted, then, Mr. Bandaranaike presented you with the alternative that you would be left with the Governor-General in sole charge ?

A. Yes.

After a few more questions and answers, we have

Q. Then you appreciate this, in the event of the Prime Minister refusing to serve under the changed circumstances, that you are left with the position of the Governor-General being in charge ?

A. He drove me to that position.

These questions are based on a misunderstanding of the statement. It is impossible to see how the Governor-General could have been left in sole charge after the Prime Minister had refused to serve, when according to the statement the Prime Minister herself was to be asked to serve only in the event of the Governor-General not reacting favourably to 3rd defendant's proposal. It is quite unfair to say that Mr. Bandaranaike drove 3rd defendant into any such position; from the commencement of his statement 3rd defendant has made it plain that his intention was to put the Governor-General in sole charge of the Government.

There follows the passage : "By acquiescence on the part of Mrs. Bandaranaike if our coup succeeded, I mean that I had hoped that Mrs. Bandaranaike would agree to accept Sir Oliver as a Constitutional Dictator. I had heard that she frequently threatened to dissolve Parliament owing to difficulties within her party. This has been a current rumour. I believe that all the ills of our country at the present moment are due to the Parliamentary system of Government. Sir Oliver as a Dictator could have had the advantage of being able to come to decisions Without having the necessity to placate voters."

Mr. Ponnambalam at one stage argued that the reference to the Prime Minister acquiescing was a reference to the Prime Minister acquiescing in the arrest of Mr. Bandaranaike. 3rd defendant has said in evidence

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that he might have used the words "Constitutional Dictator". 3rd defendant has also admitted that he did express the views appearing here regarding the parliamentary system of Government and the advantage of Sir Oliver being a dictator. But his explanation is that he merely agreed with what Mr. Bandaranaike suggested to him on these lines. Why did he agree if they were not his views ? This complaint of the 3rd defendant against Mr. Bandaranaike hardly squares with the following. questions and answers.

Q. Having read the statement, would you say that your entire statement reflected the truth subject to one limitation ?

A. I think it is a fair summary of the statement.

Q. What was the limitation that you had in mind ?

A. I did not tell him the reason why I was moving against him.

The statement proceeds :-

" The decision to stage the coup started from the commencement of the Harbour Strike, it might have been the C. T. B. strike. I admit that I am the principal participant in this coup. I take full responsibility for the consequences.

Q. Were any of the participants other than the present members of the Armed Services or the Police ?

A. No.

"I thought my persuasion would ensure the obedience of these participants in the coup who were from the Army and the Police without directives from the Service Commanders." The word " coup " occurs three times here, and 3rd defendant has admitted that he was the principal participant and that he takes full responsibility.

Finally, there is this passage :- " It was my idea that Communists and Leftists should be arrested although the proposal to the Governor-General need not have awaited the completion of these arrests. I appreciate that notwithstanding my statement, the Government will have to proceed with this inquiry, with regard to other participants. I am satisfied that I have been fairly questioned." There is here the admission that 3rd defendant wanted the Communists and Leftists to be arrested, but he has not even hinted at what he said in evidence, viz. that the real position was that the Inspector-General of Police was actually going to carry out such arrests on the orders of the Government without any hindrance from 3rd defendant and his collaborators.

Major General Wijekoon in his evidence mentioned as much as he could recall of the 3rd defendant's statement. One significant fact which he remembered was that 3rd defendant said he was going to. Queen's House to interview the Governor-General, after the arrest of Mr. Bandaranaike and Mr. N. Q. Dias, and to request him to take over the Government; also that 3rd defendant said he thought the Prime Minister would adhere to that.

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We have considered this statement in the light of 3rd defendant's evidence and his explanations. We see no reason to think that Mr. Selvaratnam's record is faulty on any material point, though there may undoubtedly be omissions in it. 3rd defendant has signed the statement after it was read over, and Mr. Selvaratnam said that he read it over to 3rd defendant. 3rd defendant made more than one request of Mr. Bandaranaike and Selvaratnam, that he be given a copy of it. We do not understand why he should have been so anxious to have a copy of it if it was not in his view a substantially correct record of what he had stated, most of it consisting of answers to questions put by Mr. Bandaranaike. We should have expected 3rd defendant, if there had been any major errors of recording, to concern himself more with getting the record corrected before he signed it. He does not say that he had no time to make corrections; and Mr. Bandaranaike was not present when the statement was read over and signed, so that he could not have hindered any action 3rd defendant wished to take in this regard. Mr. Ponnambalam said at the commencement of this trial that he welcomed the production of this statement, and the Attorney -General read the whole of it out in the course of his opening speech. We are satisfied beyond any reasonable doubt that the statement represented the truth as 3rd defendant knew it at the time it was made.

The statement itself is proof that 3rd defendant was party to much more than a plan to thwart a possible seizure of power by Mr. Bandaranaike. It discloses that 3rd defendant had planned to establish what he termed a " constitutional" dictatorship, and for that purpose to request Sir Oliver Goonetilleke to take over the Government of the country. It involved the overthrow of the established Government and the parliamentary system, and the substitution for that of a " Constitutional Dictator" who could make decisions on his own. Such a plan could not, of course, be effected without the participation of others also.

The inspection of the ammunition magazines by 3rd defendant on the 19th and 22nd January was not because they were to be put to the innocent or merciful purpose that he and 4th defendant have pretended. There followed the orders given to Abeysinghe, by 2nd and 3rd defendants jointly. 3rd defendant has given the date of this interview as the 25th morning, a date of great significance in the history of this plot. They ordered him to put the prisoners, who were to be brought to the gates of Army Headquarters, into these magazines. It is now clear that those persons-and they were not expected to be Opposition leaders of all parties but Leftist leaders-were going to be brought by the Police; and Iieut. Col. Abeysinghe was expected to work at the gates in liaison with Superintendent of Police Arndt.

We reject the 3rd defendant's evidence as to (1) why he and 4th defendant planned to provide accommodation in those magazines; (2) who were the persons to be arrested and put into them ; and (3) what he and those whom he was leading intended to do, at or about the time these steps were being taken.

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We accept Rajapakse's evidence as to what 3rd defendant told him on the 26th night. This evidence of Rajapakse the accomplice proves what the conspiracy was for; and it receives the amplest corroboration from the statement (P159) made by 3rd defendant. No better corroboration could have been found. Abeysinghe, in his evidence as to what the 2nd and 3rd defendants told him at Ceylon Volunteer Force Headquarters about their intended operation, has dishonestly attempted to support the 3rd and 4th defendants' story about countering a coup by Mr. Bandaranaike-a defence belatedly concocted to meet the prosecution case. His statement at Temple Trees is in direct conflict with his evidence. He made an effort to do the same thing when speaking about the 3rd defendant's talk at Kinross Avenue, but here again we accept Rajapakse's evidence as to what was said there, in preference to that of Abeysinghe or Alwis.

We might in this connection also refer to Mr. L. D. S. Gunasekera's evidence that when he met 3rd defendant in the Magazine Prison on March 13th and asked him what happened, 3rd defendant replied : "Felix (meaning Mr. Bandaranaike) had planned a coup to try and become a Dictator. Jungle and I planned to prevent it, but nothing happened." We do not understand why 3rd defendant did not say, when he was giving evidence, that he had made such a remark to his Proctor if he did in fact make it. He was surely the proper person to speak to the making of such a remark, if it was in fact made.

3rd defendant has said in evidence that, after obtaining 4th defendant's permission on 23rd January, he discussed with 2nd defendant on 24th January the plan which he and 4th defendant had formed to thwart Mr. Bandaranaike. He said that he and 2nd defendant also discussed what sort of a person Abeysinghe was, as the Magazine, being under the latter's control, was necessary for the custody of the arrested persons. That is how Abeysinghe came to be summoned on the 25th and told of the plan which 2nd and 3rd defendants had decided to conceal from the Army Commander. It is plain that thereafter 2nd, 3rd and 4th defendants became joint conspirators working together with others to achieve their purpose.

There was no thought or idea of preventing Mr. Bandaranaike seizing power, because there never was any fear of such a move by him. What then was their plan, and what did they want to achieve ? We hold that the plan was, in one word, to overthrow the Government then in power. If necessary, force and the show of force were going to be used, both to overcome and to overawe those in power if they stood in their way. In place of the lawful Government then exercising authority under the Constitution, they intended to substitute some unconstitutional ruler or rulers.

It was in pursuance of this conspiracy that action was taken by 2nd and 3rd defendants to meet at different times and places the officers commanding certain Regiments, and other Army officers; it was for

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this reason that 2nd defendant ordered a co-ordinated Recce which took place on the 25th afternoon; and 2nd defendant initiated the unusually quick procedure to obtain 12 Stirling guns for Alwis's Regiment on the 27th.

Although 3rd defendant has said that he and 2nd defendant decided that there would be no deployment of troops on then- part which might cause fighting between opposing forces, they and those working with them would surely have known that a Government in power cannot be expected to submit tamely to those who, unlawfully and by the use of unconstitutional methods, try to dislodge it from the seat of power. Opposition by it even to the extent of using the Armed forces under its command must have been anticipated by these conspirators. And we do not for a moment suppose that the conspirators intended, if there was such opposition, to surrender immediately. What did happen on the 27th was an unexpected disclosure of the plot by Stanley Senanayake which ultimately caused the conspirators to disband, and to abandon their objective.

The meeting of 2nd, 3rd, 4th, 5th and 6th defendants at Frances Road, between the Elibank Road and Kinross Avenue meetings, has been proved to be a fact by the evidence of Stanley Senanayake. His account of what took place there goes to prove (1) that those who met were members of this conspiracy; (2) that they had become aware that the D.I.G., C.I.D. had been informed of the plot and was making inquiries into it; and (3) that they were trying to devise measures to undo the damage that had been done to their cause by Stanley Senanayake's disclosure to the Inspector-General of Police of which he had informed 4th defendant.

2nd defendant's complicity as a conspirator is established by the evidence of 3rd defendant once we reject, as we do, 3rd defendant's version as to the object they intended to achieve by the various steps they took, 3rd defendant's evidence shows that from the 24th January, when he brought 2nd defendant into the conspiracy, he was in constant consultation with 2nd defendant and kept him informed of what was being done and received 2nd defendant's co-operation in the steps taken. On the 27th, according to 3rd defendant, they alerted Army officers and arranged a meeting at 15th defendant's house in Elibank Road, which they both attended. They both attended and gave orders at the Kinross Avenue meeting. In between they were both present at the Frances Road meeting.

At Temple Trees on the 28th morning 2nd defendant told General Wijekoon (according to the latter's evidence), after he was confronted with Stanley Senanayake and asked to be allowed to speak to the General alone, " Deryck de Saram brought me into this. I want to speak to Col. de Saram."

But what strikes us as a glaring omission, which would not have occurred if there had been any truth in the defence now put forward, is

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the non-disclosure by 2nd defendant to the General of the alleged reason for the action taken by him and 3rd defendant from the 24th morning to the 27th night.

The ordering by 2nd defendant of the co-ordinated Recce which was held on the 25th, and to which we shall presently refer, is another circumstance that tells against 2nd defendant. It was held in order to discover how to disrupt the working of the three Exchanges which were visited in the course of that Recce, and had nothing to do with the maintenance of telecommunication traffic during a strike.

Though 3rd defendant pretended that he did not know that this Reece had been ordered, we are sure that he knew all about it and the necessity for carrying it out in order that the conspirators may be in a position to paralyze the means of communication on which their opponents would have normally relied.

Many of the matters telling against 3rd defendant have been referred to already. But the most damning piece of evidence produced by the prosecution against him-and we stress that it can be used in evidence against him only-is his statement at Temple Trees which he have discussed in detail. We are surprised that in the face of that statement he should have asked us to act on his evidence in Court. When the two are compared, any effort however great cannot possibly reconcile them. His inspections of the Army magazines, which General Wijekoon said were quite outside his powers as Deputy Commandant; his enlistment of the services of Abeysinghe to act as a Jailor in respect of persons whom he intended unlawfully to confine in those magazines; his improper summoning of Army officers holding the rank of Lieutenant-Colonel, and other officers of lower rank, to the house of 15th defendant and later to Kinross Avenue behind the back of the Army Commander; his orders to those officers to do what could only be characterised as completely irregular and even unlawful acts-all this he has sought in evidence to justify on the ground that Mr. Bandaranaike would attempt a seizure of power which would bring down the lawfully constituted Government.

In truth and in fact, as his statement demonstrates, it was he himself who plotted with others to do that very thing, and to set up a new Government of his own devising, for which there was not a scrap of legal justification. He has falsely denied in his evidence what he confessed in his statement. We can attach no credit whatever to his sworn evidence.

The case against the 13th and 15th defendants can conveniently be discussed at this stage.

An operational order called Operation Pronto (19D2) was drawn up on 7th January 1962 for the maintenance of Telecommunication and Wireless Traffic, as information had been received that a strike by certain employees of the Post and Telegraph Department was possible. But the order itself states that the Government was confident that the engineers of the Department would not join the strike. Tasks were in fact allotted to the engineers of the Department in the order itself.

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On the 26th January a joint Recce was held by Major Gunasekara (16th defendant), Capt. Poulier and Capt. Meurling-all of the L. A. A. Regiment; 17th defendant who was a Staff Officer attached to C. V. F. Headquarters; Capt. Seneviratne and 15th defendant-both of the Volunteer Signals Regiment; and 13th defendant, Officer Commanding the Ceylon Electrical and Mechanical Engineers. Major Chapman said that 2nd defendant found fault with him because the Volunteer L. A. A. Regiment had not carried out a Recce over operation Pronto. 2nd defendant ordered Chapman to co-ordinate a Recce between that Regiment and the Volunteer Signals, and he also ordered that 13th defendant should go on the Recce as Technical Adviser because it was found during the Token Strike that the signals were weak.

Chapman said he handed over the task of co-ordination to 17th defendant.

General Wijekoon said that when Operation Pronto was drawn up the Post & Telegraph Department engineers were not expected to strike, and although 13th defendant's unit was included in the distribution list, 13th defendant had no need to go on a Recce in connection with Pronto. He also said that Col. Brohier of the Regular Signals Regiment was the chief adviser on telecommunication matters, and if the engineers struck, the Security and Defence Committee would have had to give fresh orders in such a situation. He said that it was not necessary for the Volunteer Signals to go on the Recce either, except to help those down for guarding the Exchanges to find out what the vital spots were. Obviously on the evidence before us, the officers of the Volunteer Signals did not think this was their duty, as nobody in the Signals who went on it had any knowledge of the working of the Exchanges, and nobody says that information of such vital spots was given to the L. A. A. Regiment which was to be on guard. 17th defendant as an officer of C. V. P. Headquarters may have gone in order to ensure admission to the Exchanges, according to the General.

The General had no recollection of any plan for the Volunteer Signals having to man the C. T. O., nor did he tell 15th defendant that they would have to do so. Their only task under Pronto was to operate the Mantial Exchanges at the outstations. Hence they had no need to. do a Recce at the C. T. 0. or anywhere else in Colombo.

The defence suggested that 2nd defendant considered that the Volunteer Signals might be called upon to perform some functions in connection with Pronto, outside those specified in the order. But the General said he would have expected 2nd defendant to bring that aspect of the matter to his notice. General Wijekoon did not concede that he had told 2nd defendant or 15th defendant that should there be a general strike, the main task of keeping civilian communications operating would devolve on 15th defendant's unit owing to the Regular Signal Regiment being busy in Operation Marconi. No evidence was given by 2nd defendant or 15th defendant to support any theory to the contrary.

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To sum up General Wijekoon's view, 13th defendant and 15th defendant had not done anything irregular by obeying a direction from C. V. F. Headquarters to do a joint Recce, but their going was unnecessary. Certainly it would appear that 2nd defendant had no justification for ordering it to be held, so far as it involved the Volunteer Signals and 13th defendant. It is a circumstance against him.
It is necessary to see what happened on that Recce. We have not got any evidence from either 13th or 15th defendant as to what either of them did. Capt. Seneviratne was ordered by 15th defendant to accompany him, but he was not told what he was to do on it. This is certainly a curious fact. The Exchanges visited were the Central Telegraph Office, the Maradana Exchange and the Havelock Town Exchange. Although questions were asked from those working at these three Exchanges, Seneviratne has said-and we have no reason to doubt the truth of his evidence-that neither he nor 15th defendant had any experience in telecommunication matters. The officer who had technical knowledge was Capt. Gurusinghe, but he was not taken on the Recce. What possible purpose then, could 15th defendant have hoped to achieve in regard to Operation Pronto by going on it or taking Capt. Seneviratne on it ?

With regard to 13th defendant, he was not the Army expert on telecommunication matters. Judging by what happened on the Recce, he seems to have asked questions himself. But if the Recce was for the purpose of maintaining the Telephone Exchanges if the engineers of the Post & Telegraph Department struck, it is preposterous to expect that this brief visit which he paid to the Exchanges that afternoon could possibly have equipped him with the necessary knowledge for that purpose. We should have expected these two Lieutenant Colonels to meet the engineers and get any technical or other information they wanted from them, instead of meeting a minor employee at each Exchange and asking a few questions. Nobody in charge of any of the Exchanges was met by this visiting party. It is more than likely that no prior permission had been obtained from those in charge before they walked into the Exchanges, questioned the workmen, and examined the equipment. If the party had not gone in uniform, in Army vehicles, and with Capt. Seneviratne to who was known to be an official of the Department, it is doubtful whether hey would even have been admitted within the doors of any Exchange.

They met only some minor workmen who were in the Battery and Generator Rooms, and by questioning them, particularly the witness de Costa, they probably ascertained some superficial knowledge of the working of the Exchanges ; and, more important still, how they could be disrupted. It is our view that one purpose certainly of this Recce was to find out how they could be put out of action. 13th defendant showed clearly that he was equipped with that knowledge when the question was raised at Kinross Avenue : 15th defendant gave no indication either way because he did not answer the question.

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According to Major Rajapakse, after 2nd and 3rd defendants came to Kinross Avenue, 13th defendant was allotted a task at the G. T. 0. and was asked by 3rd defendant how long it would take. 13th defendant replied, " Everything is all right. You can perform it within 2 or 3 minutes." Rajapakse lent force to this answer of 13th defendant by saying that a little earlier he heard 13th defendant and de Alwis talking about putting Exchanges out of action. 13th defendant seems to have anticipated 3rd defendant's question. Indeed it had been put to Rajapakse in cross-examination by Mr. Ponnambalam in this way: " I put it to you that 3rd defendant asked 13th defendant ' How long will it take to immobilize the Exchange at the C. T. 0.' and 13th defendant said: ' Pulling out the fuses won't take more than 2-3 minutes.' "

Rajapakse said that 15th defendant was detailed to go to another Exchange.

According to the evidence given by de Alwis, a witness who was by no means inclined to favour the prosecution, 3rd defendant referred to the C. T. O. and the Havelock Town and Maradana Exchanges, and asked 13th defendant how long it would take to disrupt communications at the C. T. O.

3rd defendant in evidence said he asked 15th defendant how the Exchange could be immobilized, but the latter had no idea; 13th defendant then said it could be done in a matter of minutes. 3rd defendant also said that he told 13th defendant there about manning the C. T. O.

Although 3rd defendant pretended that the only knowledge he obtained about the Recce was that 2nd defendant had, prior to it being carried out, told Major Gunasekera (16th defendant) that it should have been carried out, we do not believe him. We think that 3rd defendant would have made sure that the knowledge as to how an Exchange could be immobilized was available to him or his supporters. He admitted in cross-examination that the C. T. O. was a key point, and its immobilization could not have been overlooked. The Recce would have served this purpose well. There was a significant connection between the Recce and the tasks he allotted to, and the one question he addressed to, the 13th and 15th defendants. He demonstrated that he knew what they were there for. They raised no protest, nor did they ask any questions, although the assignments would have struck them as abnormal if they had no prior knowledge. No question, be it noted, was asked of them as to how the Exchanges were to be maintained.

What possible object could 3rd defendant and his supporters have had in putting the Exchanges out of action, except to have control of the situation and disorganize the forces supporting the Government ? The underground telephone system would have been available to 3rd defendant and 4th defendant if Stanley Senanayake was supporting them as they hoped, or if they obtained control of his office. The Wireles Room at the Secretariat, on top of the C. I. D. Building, was to be guarded

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on 4th defendant's orders by A. S. P. Percy Seneviratne; that was, in 4th defendant's own words, " because it is one of the nerve centres of Ceylon. From it one could transmit messages to the whole of Ceylon."

It is impossible to resist the conclusion that both 13th and 15th defendants, who were Lieut. Colonels, knew that the Recce was connected with 3rd defendant's question at Kinross Avenue. We have to consider also the other matters spoken of by 3rd defendant, including ref-rence3 to the Code word " Holdfast" and the Pass word " Yathura "; the giving of other tasks as spoken to by Rajapakse, such as the sending of troops to Queen's House, the guarding of Lake House and the Times building, de Alwis going to Army Headquarters to answer the telephone; the Army Commander not being a party to the conference at this unusual place at that unusual time ; the previous extraordinary meeting at 15th defendant's house only two hours earlier. All these circumstances must surely have struck these two Lieut. Colonels, 13th and 15th defendants, as very odd. Yet by their conduct (silence on the part of 15th defendant and words indicative of agreement on the part of the 13th defendant) they showed that they were not unaware of what was afoot and that they were willing to further 3rd defendant's plan that night. They have been present at Elibank Road and at Kinross Avenue, but they did not ask, for all we know from the evidence, what 2nd and 3rd defendants were expecting to do. Any Lieut. Colonel would surely have asked. We are sure that they did not ask because they already knew, and that they knew because they had already been told by 2nd or 3rd defendant or both of them, just as we are sure that Abeysinghe and de Alwis and Rajapakse had been told, of their objects.

What is more, General Wijekoon had earlier in January talked to these Commanders of units, including 13th and 15th defendants, about rumours of coups and warned them. They must surely have been on their guard. Yet 15th defendant made his house available for the strange meeting of officers held that evening, and far from objecting to the use to which his house had been put he was present at 9 p.m. at Kinross Avenue as instructed by 3rd defendant. The 3rd defendant's parting words to the officers at Kinross Avenue, according to him, were "to be on the telephone line and to keep him informed."

As regards 13th defendant, we have it also from Major Weerasinghe, his 2nd in Command, that 3rd defendant visited the 13th defendant on the 24th and again on the 25th or 26th. Neither of them has told the Court what the visits were for. Major Weerasinghe has also spoken to the orders he received from 13th defendant at noon on the 27th, viz. two 3 tonners to be standing by from that time onwards, and the men to be in Camp. Although Major Weerasinghe in his statement of 6th February did not use the same language as he used in evidence, when he referred to what 13th defendant had told him, we accept his evidence as being a correct reproduction of the orders he received. The orders he himself passed on to his subordinate officers support that view.

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We hold upon the evidence against the 3rd defendant that he prepared a plan which included inter alia the following objects :-

(1) the arrest of Mr. Bandaranaike and Mr. N. Q. Dias, the restraint of Service Commanders and the arrest of Leftists including Members of Parliament;

(2) the utilisation of arms and personnel of military units, particularly of the Armoured Corps, the 3rd Field Regiment, the Volunteer Signals and the Electrical and Mechanical Engineers, for the purpose of controlling strategic positions in Colombo and of a show or threat of force ;

(3) the coercion of the Governer-General, by the means set out in paragraphs (1) and (2) above, to accept a proposal for the Governor-General to take over the Government of the country and to run the country ;

(4) the acquiescence of the Prime Minister in a situation in which the Governor-General would carry on the Government as a dictator without the existence of Parliament elected by the voters.

(5) the actual use of force for securing any or all of the objects set out above if any of them could not be otherwise achieved.

We hold on the evidence against the 2nd defendant that he collaborated with the 3rd Defendant in the preparation of the latter's plan and in giving orders for the execution of that plan, and that he did so with full knowledge of the objects of the plan.

On the evidence of the 3rd and 4th defendants they acted in concert with a common purpose in preparing their plans. The 4th defendant referred to the 3rd defendant as the " Captain ". Although each of them did not know of many orders given and preparations made by the other, each knew that such orders and preparations would be for the common purpose. Thus, for instance, the orders given by the 4th defendant for arrests, for the testing of the Police underground telephone system, for the arrest of the Navy Commander and the " restraint " of the Army and Air Force Commanders, for taking charge of the Radio Control Room at Police Headquarters, the Information Room and the C. I. D. office must be held as against the 3rd defendant (and as against the 2nd his collaborator) to have been part of the common plan. The ultimate object of all the planning was to overthrow the Government. But the mode by which the object was to be achieved was by overawing the Governor-General and the Cabinet, who were expected to yield in the face of the show or threat of force which the planned military and Police action would constitute.

In our consideration of the law applicable to the charge in the first count of the Information, we have shown why in our opinion the objects of the conspiracy which are set out above constitute in law waging war against the Queen.

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Upon the evidence against them to which we have already referred, we hold that the 13th and 15th defendants, with full knowledge of the conspiracy in which the 3rd and 2nd Defendants were engaged, themselves became members of that conspiracy when they participated in the Recce on the afternoon of 26th January 1962.

At the close of the case for the prosecution, and after hearing the Attorney-General and Defence Counsel, we made order acquitting the 11th, 16th and 17th defendants, and we shall now state our reasons for that order.

The evidence against the 11th defendant, Capt. Anghie of the 3rd Field Regiment, was -

(a) that he had been present at the meetings at Elibank Road and Kinross Avenue on the evening of the 27th January,

(b) that he was given an order at Kinross Avenue to be at Army Headquarters that night,

(c) that a few days prior to 27th January he had come down to Colombo from his station at Mannar.

The Attorney-General strenuously argued that attendance at the meetings at Elibank Road and Kinross Avenue by itself constituted evidence of agreement with other members of the alleged conspiracy to overthrow the Government; or in other words, that the 11th defendant would not have attended these meetings unless he probably knew beforehand the alleged illegal purpose for which the meetings were summoned and had himself been in agreement with that purpose. We were unable to accept this argument. There was no evidence of any prior contact between the 11th defendant and either the 2nd defendant or the 3rd defendant, who according to the prosecution were the leaders of the Army participants in the alleged conspiracy. According to General Wijekoon, a junior officer such as the 11th defendant was, would be expected to obey an order given by a superior officer, even if it be to attend at some place other than an Army Establishment. There must manifestly have been orders in this instance for the meeting at Elibank Road, either from the 2nd defendant or the 3rd defendant or the deceased 7th defendant who was the Commanding Officer of the 3rd Field Regiment, for how otherwise could the meeting have been convened ? and according to Major Rajapakse, the order to meet at Kinross Avenue and thereafter was in fact given by the 3rd defendant. In the absence of evidence of any single circumstance which might indicate that the 11th defendant had prior knowledge of any illegal purpose contemplated by his superior officers, his attendance at these meetings in obedience to orders did not in our opinion call for any further explanation.

Even if we assume at the worst, upon the basis of the evidence of Major Rajapakse, that any officer present at Kinross Avenue should have suspected from what was said there that some unlawful action was in contemplation by the 2nd and 3rd defendants, an agreement on the.

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part of the 11th defendant to join in the alleged conspiracy cannot thereby be implied. Major Rajapakse did not state that the precise nature of the alleged conspiracy was mentioned at Kinross Avenue ; nor was there proof of any subsequent conduct of the 11th defendant from which it may be inferred that he became a consenting party to any such unlawful action as might have been contemplated. It was suggested by the prosecution that the order from Regimental Headquarters, for the 11th defendant to return to Colombo from Mannar was a step in the unlawful plans of the 2nd and 3rd defendants. Even if that be correct, it would be quite unreasonable to suppose that the 11th defendant's compliance with that order was an indication of his knowledge of or agreement with such plans. The simple explanation of obedience to an order is inherent in the circumstances, and there was no evidence from which to infer that the 11th defendant was subsequently informed of the unlawful purpose for which he was allegedly recalled to Colombo. On the contrary, there were at least two perfectly lawful purposes to which he himself should reasonably have attributed his recall-to sit on an Army Board, and to prepare for the contingency that he might shortly be sent to the Congo on duty.

The evidence against the 17th defendant Capt. Felix related to -

(a) the fact that he organised a co-ordinated Reconnaissance of the C. T. O. and the Maradana and Havelock Town Exchanges on the 26th January, which was conducted by officers of the 2nd Volunteer light A. A. Regiment and the Volunteer Signals, and by Colonel Mathysz of the C. E. M. E.;

(b) his presence at Elibank Road and at Kinross Avenue and the order given him to guard Lake House with the 16th defendant; and

(c) his presence about midnight in the Mess of the light A. A. Regiment in the company of the 3rd defendant.

It was clear from the evidence of Major Chapman, a Staff Officer at Volunteer Force Headquarters, that the order for the " Recce " and the choice of the units to participate in it was directed by the 2nd defendant who was the Commandant of the Volunteer Force. The choice of the two Volunteer units was explained, in the one case by the instructions for Operation Pronto which provided for the guarding of the C. T. 0. and the two Exchanges by troops of the Light A. A. Regiment, and in the other by the 2nd defendant's statement to Major Chapman that the Volunteer Signals might have to take over the manning of the Telephone Services. Even if suspicion might have attached to the choice of Colonel Mathysz, the order had been made by the 2nd defendant. In arranging the " Recce ", Capt. Felix merely carried out an order communicated to him by Major Chapman, and not by the 2nd defendant himself. In our opinion, there was no reason why Capt. Felix should have regarded with suspicion an order which to all appearances was normal and lawful, and this opinion was confirmed by the evidence of General Wijekoon.

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Accordingly, there was no evidence upon which to base even a suspicion that prior to 27th January Capt. Felix had knowledge of any alleged unlawful plan contemplated by the 2nd and 3rd defendants. As in the case of Capt. Anghie therefore, the presence of Capt. Felix at the two meetings of the 27th evening is sufficiently explained as having been in compliance with orders given by his superior officers.

In this instance also no subsequent conduct was proved to justify an inference that Capt. Felix did actually agree to participate in action known to be unlawful. The mere fact that he was in the company of 3rd defendant in the Light A. A. Mess about midnight was not suspicious in the circumstances. According to Lieutenant Colonel Jilla and Capt. Meurling, Capt. Felix regularly attended that Mess and often had his dinner there. The prosecution could only point to his presence in the Mess about midnight, but could not even suggest that he had arrived in the company of the 3rd defendant. Indeed all appearances are to the contrary, for what is definitely known is that Capt. Felix and the 3rd defendant left Kinross Avenue not together but separately, and that Capt. Felix was supposed to go later to Army Headquarters.

The evidence elicited during the course of the prosecution case did not for these reasons establish a prima facie case against the 17th defendant.

One item of evidence concerning Capt. Felix was relied on also against the 16th defendant, Major Gunesekera of the 2nd Volunteer Light A. A. Regiment, namely that he participated in the " Recce " on the 26th January. The explanation that this was ordered by the 2nd defendant is also available to the 16th defendant, but the defence established in addition that he informed his Commanding Officer Lieutenant Colonel Jilla of the proposed " Recce ", and reported to him thereafter that the guard duties devolving on the Regiment under the Operation Pronto instructions required a larger number of troops than the instructions contemplated. His participation in the " Recce " appeared to us to be reasonably referable to the performance of normal duty.

On 26th January, Major Emmanuel gave orders for a special internal security platoon of twenty-four men to be on stand-by duty from noon of the 27th until the morning of the 28th, and there was evidence that the 16th defendant who was the second-in-command of the Regiment ordered the number of the men to be increased to thirty. No suspicion can attach to the 16th defendant on this score for Lieutenant Colonel Jilla admitted that he had himself ordered that during this period there should be a stand-by platoon of thirty men. There was ample evidence to indicate that on earlier occasions the troops of this unit had not been in a due state of readiness when ordered to be on stand-by duty, and special security orders were in the circumstances only to be expected.

The 16th defendant did not attend either the meeting at Elibank Road or that at Kinross Avenue. But it was argued as a ground of

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suspicion against him that he was seen in the company of the 3rd defendant about midnight on the 27th January in the Mess of the Light A. A. Regiment. The explanation for this was self-evident, for that was his own Mess and he was at the time under orders to sleep in camp. We feel bound to express our surprise that Major Gunesekera was charged with grave offences on quite flimsy grounds.

The evidence affecting the 10th defendant Capt. Jayakody was similar to that affecting the 11th defendant Capt. Anghie. Jayakody's was the third Field Regiment, but there was no evidence that he had anything to do with the wireless exercise ordered for 27th January. According to Major Rajapakse he was present at both gatherings of officers at Elibank Road and at Kinross Avenue. But, as we have stated in other contexts, orders from his superiors satisfactorily explain his presence on those occasions. Rajapakse said that at Kinross Avenue Jayakody was one officer who received an order to guard the Times building, but no subsequent conduct was proved to justify an inference that he agreed in fact to participate in action known by him to be unlawful. He returned from Kinross Avenue to his Mess in the company of the 12th defendant Capt. Weerasinghe and thereafter both these officers took their bedding to Army Headquarters, presumably with the intention of sleeping there. But one cannot accede to the prosecution argument that this evidence indicated an intention to carry out any illegal order. We accept Jayakody's statement that he and Weerasinghe subsequently returned to their Mess when told to do so by their Commanding Officer Col. Abraham. This implies that even the earlier intention of these two officers to sleep at Headquarters had been in pursuance of orders from their Colonel.

The chief difficulty which we felt with regard to both Jayakody and Weerasinghe at the close of the prosecution's case arose out of the evidence of Major Rajapakse concerning an incident alleged to have taken place on the morning of 28th January. Rajapakse said that these two officers, together with Capt. Harendran, visited Rockhouse and spoke to him there. According to Rajapakse, Jayakody on that occasion mentioned an idea of rescuing from Welikada the two Police officers, Dissanayake and Johnpulle, who had been taken into detention a few hours earlier, and inquired what the attitude of the Armoured Corps would be to such an attempt. We accept the evidence of Col. Attygalle that he was informed of this incident by Rajapakse on the 28th, and that he took early steps to report the matter to the Army Commander. In fact the Army Commander stated that he in turn reported the incident to Mr. Dissanayake D.I.G., C.I.D. Jayakody and Weerasinghe were then questioned at Temple Trees by the D.I.G. who, according to the General did not regard the incident as being of any importance. Indeed the D.I.G. and the General did not even think it necessary to question Rajapakse himself on this matter.

Now that we have held that Rajapakse must be treated as an accomplice in the alleged conspiracy, the evidence of this incident loses much of its significance. Rajapakse was not corroborated on this point, and on,

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the contrary Capt. Harendran contradicted him by the evidence that Jayakody only spoke to Rajapakse in Harendran's presence and made no remark of the kind mentioned by Rajapakse. In none of the numerous statements elicited from Rajapakse and volunteered by him during the investigation did he once refer to this incident. In fact the Deputy Solicitor-General conceded that he himself was taken by surprise when Rajapakse for the first time spoke about this matter at the trial. Mr. Kannangara has commented on the prejudice to the defence arising put of this surprise. In our opinion Rajapakse's failure to mention this incident in any statement to the investigators at the least indicates that, even if Jayakody made the reported remark, Rajapakse himself quite soon realised that it was not made in earnest. Nor can we confidently reject the defence suggestion that Rajapakse, because of his need to protect himself against involvement, thought fit to make to Col. Attygalle a report which was either false or grossly exaggerated.

10th defendant in his statement of February 28th, after mentioning the Kinross Avenue conference, said : " After the conference I realised that we were really on the verge of a very important operation and I thought that the Army was going to take over the Government of the country. I did not hear Col. de Saram and Col. de Mel tell the officers at Kinross Avenue anything about the Army taking over the Government but from the orders issued to the officers, it left no doubt in my mind as to the purpose of this conference ". Taken by itself, this passage could be damning to the 10th defendant. But it is followed immediately by 10th defendant's account of how he and 12th defendant received messages from the Orderly officer who was at Echelon Square to the effect that the Army Commander was trying to get at Col. Abraham (7th defendant). They tried to telephone 7th defendant but failed to get at him, so they went to his house at Wellawatte and gave him the Army Commander's message. This indicates, to our minds, that 10th defendant did not think that he was participating in any operation which did not have the approval of the Army Commander. No doubt, he took his bedding and his uniform and went to Echelon Square as ordered by his Colonel: he could not do otherwise unless he was sure that he was taking part in an illegal activity, for he had to obey the order given by his Colonel. But we are not satisfied that he entered into the illegal conspiracy himself by going to his Regimental Headquarters. That act alone would not show that he became a conspirator, for it is an equivocal act which any junior officer would have felt bound to do in obedience to an order from his Colonel. It must also be noted in this connection that 10th defendant refused to accept a conditional pardon which was offered to him on 16th February and 16th June, as A. S. P. Selvaratnam has said in evidence. The refusal appears to us to have been on the ground that 10th defendant disclaimed any suggestion of guilt which accompanied the offer of such a pardon. The drawing of the revolver from the Armoury is easily explained. 10th defendant was the Pay Officer on that day and he had

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gone to the Bank to draw the money required to pay the salaries of the Regimental personnel. It was a normal precaution which any officer would take during this time.

For these reasons we hold that the prosecution has failed to establish the charges as against the 10th defendant. We reach the same finding in regard to the 12th defendant, against whom suspicion only arose because Jayakody was alleged to have made the remark in the former's presence. What we have stated in regard to the evidence against the 10th defendant applies even with greater force to the case against the 12th defendant.

The case against 8th defendant, apart from his attendance at the Elibank Road and Kinross Avenue meetings on the 27th night, is that he and 7th defendant had ordered a wireless exercise to be carried out by their Regiment on the 27th night. The defence admitted that this exercise was ordered by 7th defendant, and 8th defendant did his duty with regard to carrying out that order, but submitted that it was a matter of ordinary military routine and was quite innocent.

General Wijekoon has said that the carrying out of such an exercise was well within 7th defendant's duty, if for the purpose of training the men of his Regiment. He described 7th defendant as " a very cautious officer ". He said that a certain amount of suspicion was created that night in his mind by the choice of the seven points, to which the seven vehicles chosen to take part in the exercise, were to be sent. They were (1) and (2) the two Kelaniya bridges (3) the Dehiwe'a bridge (4) the-Kirillapone bridge (5) the Harbour (6) Welikada and (7) the Town Hall. The suggestion made by the prosecution was that Colombo was to be ringed round, and these seven strategic points were chosen to close entry into Colombo from outside. On the other hand, previous exercises of this nature had been carried out, and Staff Sgt. Perera has said in evidence that a wireless set tested on the 26th night by him was found to be unsatisfactory and he so reported to 8th defendant.

Capt. Wanasinghe said that it was he and not 7th or 8th defendant who chose the seven points to which the seven vehicles were to be sent. Therefore no adverse inference can be drawn from that circumstance.

The only evidence as to the day on which the exercise was decided upon is that of Capt. Wanasinghe who said that on the 27th morning 7th and 8th defendants spoke to him about the exercise that was to be held that night, and told him that though he could leave Camp that morning he should return by 7 p.m. At about 7 p.m. Lieut. Gajendran received a telephone call from 8th defendant asking him to cancel the exercise, as some men of the Regiment were going to the Port on duty on the 28th morning. This message was conveyed to Capt. Wanasinghe, and in consequence the equipment which had been drawn for the exercise was returned to the Stores, and the men were dismissed.

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Major Rajapakse has said that while he was in 8th defendant's house after the Elibank Road meeting, prior to going to Kinross Avenue, 7th defendant instructed 8th defendant to telephone to the Adjutant to remove the wireless sets from the vehicles. 8th defendant later told 7th defendant that he had done so. Thus it is clear that the wireless exercise was cancelled before it had begun and, what is also important, it was cancelled before the Kinross Avenue meeting. If it had any connection with the alleged conspiracy, its cancellation at that particular time is difficult to understand.

The two meetings which 8th defendant attended that night do not by themselves point to his having any criminal intention or being party to any criminal agreement. We are satisfied that he attended those meetings at the request of 2nd or 3rd defendant, but there is no evidence that he had any prior knowledge of the purpose of these meetings. Mere evidence of association, it is clear, is not sufficient for the inference of conspiracy to be drawn. 8th defendant, according to Major Rajapakse, was told by 3rd defendant to be in charge of, or look after, Echelon Square. This is an item of evidence which he had failed to mention in his statement at Temple Trees. The evidence, however, does not disclose that 8th defendant did anything thereafter, in furtherance of the conspiracy or in obedience to this order, which might indicate that he joined in the conspiracy.

Against 8th defendant there is also some evidence of his having visited the Armoured Corps Mess earlier in January and meeting 14th defendant, but we attach no significance to this. Major Rajapakse's and Col. Attygalle's evidence in regard to this matter cannot be put higher than this-that it shows that Major Rajapakse had some suspicions which he conveyed to Col. Attygalle after January 12th.

Col. Attygalle also referred to an incident where 8th defendant in his presence told 2nd defendant that he had felt like squeezing Mr. S. W. R. D. Bandaranaike's mouth because the latter had given him a telling off. An outburst of this sort must not be taken too seriously.

We are satisfied that none of the charges has been established against 8th defendant.

In considering the case of 9th defendant, we have first the suspicions of Major Rajapakse who said he saw 9th defendant meeting 14th defendant at the Armoured Corps Mess, and conveyed those suspicions to Lieut. Col. Attygalle on January 12th and to younger officers like Captains Sigera, C.H. Fernando and M. D. Fernando. When it is remembered that 9th defendant and 14th defendant are brothers-in-law, having married two sisters, it becomes difficult to attach any importance to these meetings. They would surely have met in the privacy of their homes, rather than an Officers' Mess, if they were planning anything Criminal.

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We next had the evidence of Corporal Congreve of the Ordnance Corps who said he was given a lift by 9th defendant from the Galle Face Hotel junction to the Bullers Road-Galle Road junction on January 10, 1962. In the course of that journey 9th defendant, while driving his car, is said to have attacked the Government and told Congreve " It would not be long before we teach these f. s a lesson. " From the cross-examination of Congreve it appeared that the 9th defendant did not deny giving him a lift, but only conceded having asked him how he was getting on in the Army.

Congreve said that he reported this conversation to Abeysinghe on the next day, but the latter only laughed; and he also reported it to Sigera after January 27th. Sigera said that Congreve drove him from the Panagoda Headquarters to the Kendalanda married quarters about a week or two after January 27th. On a still later day, Congreve drove him again, and on that occasion spoke about 9th defendant having told him that the country was going to the dogs and " very soon we will teach these a very good lesson". Sigera said that he conveyed this information to Major Perera. Major Perera confirmed that Sigera had told him that Congreve made a statement to him in regard to the alleged coup, and he in turn reported that to Lieut. Col. Udugama. Eventually Sigera made a statement about this matter to the Police only on April 7th. Major Perera's statement was recorded on April 12th, but it contains no reference to the 9th defendant. The delay in conveying this information to the Police, coupled with the omission of 9th defendant's name, reduce the weight of Congreve's evidence considerably.

The prosecution relied on the two extra unofficial Internal Security platoons which were standing by from the morning of January 27th in the 3rd Field Regiment as a circumstance against him. By that day Army Headquarters had issued orders that only one Internal Security platoon should be available, and General Wijekoon said that in that situation it would be very unusual for a Commanding Officer to provide two unless he had some specific reason.

The official platoon on the 27th had to be provided by Regimental Headquarters. Lieut. Cadiramen's evidence that on the 27th morning 9th defendant ordered him to have another platoon ready from his Troop is contrary to his statement of February 6th where he said that he received no such orders. It is clear, however, from Lieut. Gajendran's evidence that in addition to the official platoon there had been two unofficial platoons available from December 1961 until January 27th. In view of this, the availability of two unofficial platoons on January 27th loses any significance which might otherwise have been attached to it.

The prosecution relied heavily on Rajapakse's evidence about 9th defendant's conduct on the night of January 26th which we have already set out in detail. We have given the respective versions of Rajapakse

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and 3rd defendant as to what happened and what was said. We take the view that the meeting of Rajapakse and 3rd defendant that night was not at Rajapakse's but at 3rd defendant's instance. The invitation given to Rajapakse by 14th defendant was most probably a preliminary move to enable such a meeting to take place. 9th defendant also played a part in bringing about this meeting. Since 3rd defendant came from the S. S. C. to Bambalapitiya, he appears to have been keen to meet Rajapakse.

But the crucial question still remains. Did 9th defendant know why the meeting between 3rd defendant and Rajapakse was arranged, even if he did help in bringing it about ? It is here that we are met with a complete absence of evidence connecting 9th defendant with the conspiracy at any earlier point of time. It would therefore be wrong to assume that he had any knowledge that 3rd defendant wanted to meet Rajapakse in connection with the conspiracy. Rajapakse's version of what happened after he met 3rd defendant is more than sufficient to bring 9th defendant into the conspiracy at that stage, but it is uncorroborated and we feel it would be unsafe to act on it to the extent of holding that 9th defendant or 14th defendant was present when 3rd defendant and Rajapakse were speaking to each other. Particularly so, because Rajapakse's evidence is in conflict with Vandendriesen's in regard to some of the incidents of Rajapakse's visit. While Rajapakse has said that he never left the flat until he went downstairs to meet 3rd defendant, Vandendriesen has said that 9th defendant and Rajapakse left the flat for some time and returned. He was definite that they left together and 9th defendant returned before Rajapakse. Even as regards the manner of their leaving the flat, Vandendriesen contradicted Rajapakse to the extent of saying that he, Rajapakse, 9th and 14th defendants came downstairs together, and when he went home to dine the other three went off in another direction to dine. In the face of these different versions we cannot act on Rajapakse's evidence alone.

We are left with the meetings at Elibank Road and Kinross Avenue. Presence at those meetings and the receipt of orders from 2nd and 3rd defendants will not convert 9th defendant from a listener to a conspirator in the absence of words or conduct which prove that he also entered into the conspiracy.

Some of the observations we have made regarding 9th defendant apply also to 14th defendant. Rajapakse had his suspicions about him; he invited Rajapakse to his flat on the 27th night very probably in order that he might meet 3rd defendant later that night; he attended the two meetings of officers on the 27th. But there is no evidence which satisfies us that 14th defendant ever became a conspirator or even knew of the conspiracy.

Rajapakse has added certain details as to what 14th defendant is said to have told him at various times. If these things were actually

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said by 14th defendant his complicity is established, but Rajapakse's evidence on these points is again uncorroborated, and we consider that it would not be prudent to hold those matters proved.

We revert now to evidence affecting the 4th defendant.

In considering 4th defendant's defence and evidence, which we have already discussed, we have also to take into consideration the letter P 181 which he wrote to the Chairman, Advisory Committee, on 30th January 1962 and which we have not hitherto referred to. It purports to be his appeal against his detention.

The letter is as follows :-

" The Chairman,
Advisory Committee on Detenus
Solicitor-General's Office,
Hulftsdorp, Colombo 12.

Sir,

Reference intimation sent me last night 29.1.1962, by the S. D. & E. A., I am hereby appealing to you under Regulation 23 (4) Emergency Regulations No. 1 of 1962 against my detention.

On Monday 22.1.62 or Tuesday 23.1.62 the I. G. P. Mr. M. W. F. Abeykoon told me that serious trouble was anticipated from about 29.1.62 Monday. I asked him what the Information was. He told me that a sudden strike by all the unions, without notice was anticipated ; he told me that there would be violence and then other serious repercussions by political leaders. He ordered me to take all possible precautions-particularly in Colombo. I got up the Supt. of Police Colombo Mr. Stanley Senanayake and ordered him to personally instruct his A. S. PP and they in turn their O. I. CC and men. I further told S. P. C. that I would personally brief the Gazetted Officers concerned on Saturday 27.1.62. The instructions to S. P. C. were (1) To check on all his riot squads and vehicles (2) ammunition (3) check that all ranks knew their Firing Orders and how to act correctly, (4) have a list of potential trouble makers. I also asked S. P. Colombo to restrict leave from Thursday 24.1. I believe S. P. C. attended to my orders on 24.1.62. Similar instructions were given to the Superintendents W. P. (C) & W. P. (N). I believe SP.WP.C. instructed his officers on 26 or 27.1.62. I do not know what S. P., W. P. (N) did because he was very worried about his wife who had to be rushed down to Colombo Castle St. Hospital on 23 or 24/1 for an operation. I had granted him permission to come up and down between Gampaha and Colombo till he took back his wife to Gampaha.

1 know the I. G. spoke to S. P. C. about the anticipated disturbances because S. P. C. told me so, subsequently, on 25 or 26/1. The I. G. repeated these same fears to S. P., W. P. (C) and A. S. P., Homagama on 27/1 at 11.30 a.m. when I produced these 2 officers before him. These 2 officers had arranged a Nadagama at the Lionel Wendt Theatre in mid

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February and requested the I. G. to contact the Governor-General to lend his patronage to their show. The I. G. told these 2 officers that it would be quite impossible for him to do so because he expected serious trouble during the whole of February and wanted S. P. W. P. C. to be in readiness. S. P. W. P. C. told him promptly that he was ready for any eventuality. I then suggested that the Nadagama be held in conjunction with the Sinhalese New Year celebrations. This was accepted. It will be seen from the above that I have promptly, diligently, and personally, carried out the I. G.'s orders to me. I now find I am in Welikada Convict Jail for doing my duty. I was brought to Welikade Convict Jail under false pretences. On 28.1.62 Sunday I was sleeping peacefully at home with my wife and children. At about 1.30 a.m. or so I heard a rumbling noise, the thud of boots and my call bell ringing persistently. I got up and walked to the balcony. I saw 200-300 service personnel surrounding my house and the whole area. Bren gun carriers were aimed at my balcony and hundreds of stenguns. Lanchesters and revolvers were pointed at my house. I asked them what all this was about. Someone told me that I was wanted at Temple Trees by the Prime Minister. I told him that I had been hundreds of times to Temple Trees at all hours both by day and by night but never before had I been given the honour of a Service escort. I came downstairs, got into uniform, and opened the door. The Servicemen told me that they had orders to search my house. I asked them whether they had a search warrant. They replied in the negative. As I did not want to alarm my wife and daughters who were by this time scared to death, I allowed them to search my house. No one else excepting my wife, son, 2 daughters and 3 servants were found in my house. Nothing incriminating was found. My house was searched by about 40 Service personnel armed with the most deadly weapons. I was asked to walk on to the road and then to get into an army vehicle. When I was safely in, I was told I was under arrest. I asked to see the warrant of arrest. They said that they had no warrant but that I was arrested on the personal orders of the Prime Minister. They told me I was being taken to Welikade Jail. I asked them what offence I had committed. One officer said " Sir, please don't ask us; we don't know. We are sorry about this whole show ". I said " Right, obey your orders and let's go." I do not think that a Policeman in any part of the world ever had such an armed escort from my home to Welikade Jail as I had, mercifully in the small hours of 28.1.1962. If I knew I was to be arrested like a common criminal I would never have stepped out in uniform to disgrace the Force that I have loved for 28 years.

And now, Sir, I am in a convict jail in solitary confinement. I wrote to the I. G. P. on 28.1 morning itself asking him to see me. I heard this morning 30.1 through the Jail authorities that the I. G. refuses to see me. I do not know why I was arrested or why I am detained or what the charges are against me. No one knows. I can see no one and no one can Bee me, not even my wife or son or a lawyer. I was officially told so today by the Prison Authorities. Even a murderer on remand is entitled to and given

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many privileges all of which are denied me. I ask for justice, and beg that you order my release forthwith. From what I can gather from the newspapers, and reading between the lines it seems to me that I have been very cleverly made the victim of a carefully planned diabolical plot.

(Sgd.) Cyril Cy Dissanayaka,
Deputy Inspector-General of Police.
30.1.1962.

P.S.

        I beg that I be allowed to appear before your honour in uniform.

Intld. C. C. D. 30.1.62 "

The following comments may be made on the statements in the letter :-

(1) Nothing has been said about any disturbances which might occur on 27th January, although in his evidence 4th defendant said that the Inspector-General of Police on the morning of 26th January asked him the significant question " Are you ready for tomorrow 1 " On the contrary, he has said in it that the I. G. P. told him on the 22nd or 23rd January that serious trouble was anticipated from about the 29th.

(2) Nothing has been said about any talks with the I. G. P. during the week prior to the 22nd, when he claimed in evidence that he had been receiving information from the I. G. P. about contemplated arrests and a house.

(3) The reference to 4th defendant telling Stanley Senanayake that he " would personally brief the gazetted officers concerned on Saturday, 27.1.62 " is presumably a reference to the two conferences which 4th defendant had summoned for the morning and evening of that day respectively. We are aware now that the briefing at the morning conference was solely directed to the giving of instructions for the arrest of certain Leftists and a Government Party Member of Parliament. But the briefing at the evening conference had nothing that could be said to pertain to the quelling of anticipated disturbances or the arrest of Leftists or trouble makers. It is not difficult to draw the inference that the evening conference, and we think also his interviews of that morning, were used by 4th defendant solely for furthering the aims of the conspirators who plotted to overthrow the Government. 4th defendant has not said in his letter what he did on the 27th ; nor has he explained in it how his conduct on the 27th and the day preceding it could be considered action taken to prevent trouble caused by Trade Unions.

(4) Although he has claimed that he was sleeping peacefully on Sunday, 28th January, he has omitted to mention the activities in
which he played a part until nearly midnight on 27th January.

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(5) He has further omitted to say a word about any lists of persons to be arrested having been given to him by the I. G. P. and that one such list was put by him in his steel cabinet. The action he had taken to arrest Leftists, the instructions given by him to watch Lieut. Col. Udugama's house, to guard the houses of the Army and Air Force Commanders, to trail the Navy Commander, the alleged plan which he and 3rd defendant had devised to thwart Mr. Bandaranaike-none of these matters is mentioned or even hinted at in the letter.

(6) Even if he did not wish to give details of the steps he had taken up to the 27th night for action to be taken by him on that very night, he could not have failed, by the time he wrote this letter, to realize the importance of making an early statement of his alleged fears about  Mr. Bandaranaike. He has not said anything on that point, which is the foundation on which his entire defence has been raised. He could  have done so, without mentioning by name anybody who was with him in the alleged counter-plan. He has admitted that he did not disclose the alleged counter-plan to anybody, after his arrest, until he disclosed it to his Counsel Mr. Wikramanayake on 20th February.

(7) He has said in evidence that in this letter he stated the facts " except this counter-plan thing, about thwarting Mr. Felix Dias. "
It is very difficult to reconcile this letter with his evidence.

The Crown relies on the evidence of a number of witnesses from the Police Training School, Katukurunda, to establish the charges against the 1st defendant Douglas Liyanage, the 4th defendant C. C. Dissanayake, the 5th defendant Sidney de Zoysa, the 19th defendant T. V. Wijesinghe apart from the other evidence led in the case against them. The evidence of some of these witnesses tends to support the case against the 21st defendant.

F. H. Brohier A. S. P. was the Director of the Police Training School. C. S. Orr was the Deputy Director and V. K. Arumugam was the A. S. P. Administration under Brohier. The 5th defendant had been the Director of the Training School for a number of years. He subsequently became a D. I. G. of Police and was thereafter appointed as Permanent Secretary to a newly created Ministry of Security, and the police department was placed  under this Ministry. Brohier had served under the 5th defendant both at the Training School and at Panadura. At the relevant time, the 5th defendant had been retired from the public service and was running a private agency called the Sidney de Zoysa Agency which did private detective work and other business.

He had filed an application in the Supreme Court challenging the validity of his retirement and had appealed to the Privy Council from the decision against him in the Supreme Court. He was, at the relevant time, hoping to succeed in his appeal and to get back bis position in the public service. He had expressed this hope to Arumugam when the latter sought his assistance to obtain an extension of service in the Police Force and a deferment of his retirement. Arumugam's retirement had then been recommended by the I. G. P.

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Stanley Senanayake S. P. had succeeded the 5th defendant as the Director of the Training School and had held this post for 4 or 5 years. He was transferred as S. P. C. I. D. a few months before the alleged coup, and after a very short period in that post, he was appointed S. P. Colombo, under the 4th defendant who was then D. I. G. Range 1. Brohier succeeded Senanayake as the Director of Training.

Brohier has testified that the 5th defendant and his wife visited him at his bungalow at the Training School on 25.1.'62 about 9.45 p.m. The 5th defendant requested him to get him four telephone calls to Weerasingha, A. S. P. Bandarawela, K. S. Perera, S. P. Uva of Badulla, Werapitiya, S. P. N. C. D. of Anuradhapura and Van Sanden, A. S. P. N. P. of Jaffna. Brohier obtained these calls, under his own name, for the 5th defendant through the Training School telephone exchange.

The 5th defendant also requested him to get up Orr and Arumugam as he wanted to speak to them. Brohier telephoned to one of them and got them down. Orr has not given evidence in this case as he was dead at the time of this trial. Arumugam has testified to the fact that on receipt of a telephone message from Brohier, he came to Brohier's house with Orr and met Mr. & Mrs. Sidney de Zoysa there.

The Counsel for the 5th defendant has not challenged the evidence for the Crown that the 5th defendant visited Mr. & Mrs. Brohier on the night of 25.1.'62 and requested Brohier to obtain the four telephone calls referred to nor the fact that the 5th defendant had met Orr and Arumugam at Brohier's house that night.

With reference to the telephone calls, Weerasingha was not at home. The call to Van Sanden was not audible. Brohier spoke to K. S. Perera and handed the receiver to the 5th defendant. The 5th defendant spoke to K. S. Perera about some difficulty he had about the transport of cash to estates in that area, and arranged to meet Perera at Welimada in the Uva district the following morning.

Brohier says that after they failed to contact Weerasingha and before the call to K. S. Perera came through, the 5th defendant told him that K. S. Perera would be able to get round Mr. Jayatilleke of the Sinha Regiment. According to Brohier, the Sinha Regiment was stationed at Diyatalawa in the Uva Province and Jayatilleke was one of the officers of that Regiment.

The 3rd call to come through was to Mr. Werapitiya. Brohier received that call and gave it over to the 5th defendant. The 5th defendant reminded Werapitiya of a conversation they had about a month earner and said that he wished to enter the timber trade. He arranged to meet Werapitiya at the latter's bungalow late the next day. The last call to come through was the ineffective call to Mr. Van Sanden of Jaffna.

Apart from the remark alleged to have been made by the 5th defendant about Mr. Jayatilleke and the Sinha Regiment, the subject of the telephone conversations with K. S. Perera and Werapitiya was apparently innocuous. The transport of cash to estates was a service undertaken

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by the 5th defendant's Agency. The relevancy of these telephone calls is to support other evidence in the case that the 5th defendant was going round the Provinces to solicit the support of high-ranking police officers to a plan to overthrow the government, the execution of which was then very imminent. By these calls the 5th defendant had arranged to meet the S. P. Uva and the S. P. N. C. D. on the following day.

Brohier stated in evidence that the 5th defendant took him to the corridor leading to the annexe just as Orr and Arumugam came to his house, and spoke to him about a plan to overthrow the government. They were alone at the time. While the 5th defendant was telling him the particulars of this plan, the telephone calls came through and they attended to them and continued this conversation.
The 5th defendant has not given evidence in this case, but the defence challenges the veracity of the testimony of Brohier and Arumugam with regard to the conversations that the 5th defendant is alleged to have had with them separately on this occasion about a plan to overthrow the government.

According to Brohier, the 5th defendant told him that he was coming from Galle and had come to see Brohier on behalf of C. C. Dissanayake (4th defendant). The Training School did not come under the 4th defendant's range. It was under the control of Mr. Wambeek, D. I. G., Administration at the time. The 5th defendant told him that he had a letter from the 4th defendant to two police officers to give him all assistance and offered to show him this letter, but he accepted the 5th defendant's word for it.

Brohier stated that the 5th defendant told him that the 4th defendant, Army officers, 6th defendant who was formerly the Captain of the Navy and the 5th defendant had planned a coup. The plans had been finalized to be put into effect on 27.1.62. His Excellency the Governor-General was in the know and would come in. They were to arrest Ministers, Leaders of Opposition Parties and Leftists, Colonel Udugama, Colonel Attygalle and Commodore Rajan Kadirgamar. The houses of the Army Commander General Wijekoon and the Air Force Commander Air Vice Marshal Barker were to be surrounded and they were to be kept under house-arrest. Groups were formed to arrest the I. G. P. Mr. Abeykoon, the D. I. G., C. I. D. Mr. S. A. Dissanayake and the S. P., C. I. D. Mr. John Attygalle. Orr would be in the group to arrest Mr. S. A. Dissanayake and Arumugam in the group to arrest the I. G. P. The 6th defendant would be the Captain of the Navy as he had the support of these men.

The 4th and 5th defendants would take over the Police Head quarters about 10 p.m. on 27.1/62 and later that night they would go with Army officers to Queen's House. The Governor-General would dissolve Parliament and would ask the 5th defendant to take over the government with the assistance of the Army and the Police.

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The 5th defendant also told him that 4th defendant and he had made friends but it was not shown outwardly. It is an accepted fact in this case that the feelings between the 4th and 5th defendants were bitterly strained for several years prior to these events, though they had been very close friends during their earlier years in the police force.

According to Arumugam, as he went up with Orr, the 5th defendant's ear was being attended to, as he had some ear trouble. After that the 5th defendant called Orr and him to the corridor and spoke to them about a coup. Before this conversation and in the course of it, some telephone calls came through and Brohier and 5th defendant attended to them. Brohier was walking up and down the corridor between the bungalow and the annexe at this time. The telephone was in the annexe. He did not see the 5th defendant having a conversation with Brohier in the corridor before 5th defendant spoke to them.

He says that 5th defendant told them (Orr and Arumugam) that action has to be taken 48 hours from that time and that they had been chosen to do two important jobs. Arumugam had to arrest the I. G. P. and Orr had to arrest Mr. S. A. Dissanayake D. I. G., C. I. D. They were to be taken to the armoury at Army Headquarters after their arrest. The pass word was " Yathura ". 4th defendant was responsible for the police arrangements and the army officers for the army arrangements.

Arumugam says that he was alarmed that he had to arrest the I. G. P. He took 5th defendant to a side and told him that he was not temperamentally suited for this and would like to be excused. He would be considered ungrateful to the government if he did anything against them. 5th defendant then told him, " don't panic, don't show cold feet. If you let us down at this time, the bullet will be the answer." 5th defendant then asked them to come to his bungalow at 3 p.m. the next day, and wanted them to find men from the Training School for their assignments.

Soon after the conversation, 5th defendant and his wife left the bunglow. Brohier says that he had a short conversation with Orr in the garden after the Zoysas left. Arumugam was also present but took no part in this talk. He told them " this is a most dangerous thing. We should try to get out of it ". Orr said something in reply. Brohier said " it is rather late now, let us discuss this to-morrow ". Thereafter Orr and Arumugam left. Arumugam says he does not remember any conversation between them after the Zoysas left.

Brohier says that this was the first information he had of any attempt to overthrow the government. Arumugam says that he had certain earlier conversations with 1st defendant and 5th defendant about this Subject. He was friendly with the 1st defendant. He was A. S. P. Mannar when 1st defendant was the Government Agent there and they had come into close association at that time. Arumugam had reached his optional age of retirement in 1961, and on the recommendation of the I. G. P., the government proposed to retire him from service.

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Arumugam was making every effort to obtain an extension of service. He obtained the assistance of the 1st and 5th defendants to draft his petition of appeal to the P. S. C. for this purpose. He also sought their assistance to use their influence with certain persons in authority to, obtain this extension. He even obtained the assistance of Mr. Monnekulame, M. P. for Kurunegala and a member of the S. L. F. P., which was the government party, to place his case before the Prime Minister. Mr. Monnekulame was also a friend of his. A temporary extension of service was granted to him towards the end of 1961, and finally about the 23rd of January, 1962 he was granted the extension of service which he was seeking.

In this connection, Arumugam says he met the 1st defendant at the latter's bungalow on the 7th or 8th of December, 1961 when he came to Colombo in connection with the Police Inter-District Swimming Competition. 1st defendant was at this time the Deputy Director, Land Development, Colombo. On this occasion 1st defendant asked him if the 4th or 5th defendant was more popular in the Police Force. He said that the 4th defendant was more popular, and inquired from the 1st defendant why he asked about this. 1st defendant then told him that he had some army officers, and was trying to contact a police officer to fix police officers to stage an overthrow of the government. He asked 1st defendant why he was contemplating such a move. 1st defendant spoke about the economic situation of the country and the deterioration of our foreign assets, and said that he would be meeting 4th defendant soon on this matter.

He stated at ' Temple Trees ' on 2nd February, that he knew the 1st defendant was in this plot as he had asked him about three weeks earlier whether the 4th or the 5th defendant was more popular in the police service. On 23rd March, he fixed the date of this conversation as on the 7th or 8th December, 1961 by reference to the Officers' Movements Register, which showed that he had come to Colombo on those dates for the Police Swimming Competition. His statement on 23rd March was in accord with his evidence in this case about this conversation.

Both the 1st and 4th defendants admitted that the 1st defendant met the 4th defendant at Police Headquarters a day or two before the token strike of 5th January. They and the 19th defendant stated that the 1st defendant came there to discuss an official matter concerning the storage of ammunition belonging to the Land Department.

Arumugam stated that he met the 5th defendant at the Police Mess about 6.45 p.m. on 7th January. This was the day that the body of S. I. Banda was being taken from Karutara to Kandy. He heard that the hearse taking this body had given some trouble at Kalutara North and the body had been transferred to another hearse. He came up to Victoria Bridge, Colombo, in his car in search of this hearse but could not catch up with it. Then he went to the Police Mess in Colombo. The 5th defendant took him for a drive on this occasion and discussed with him

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the loyalty of various police officers to the 5th defendant. Arumugam told the 5th defendant that 21stdefendantS.P.,Galle,andK. S. Perera S. P., Uva, would be loyal, to him. 5th defendant said that Werapitiya S. P., N. C. D., will be loyal and that the 4th defendant would look after Thambiah, S. P., Matara, and the Colombo Division officers and that Jilla S. P., N. W. P., was jittery.

Arumugam then told the 5th defendant that the 1st defendant had discussed about the overthrow of the government and asked the 5th defendant what this was all about. The 5th defendant told him, " Don't worry, plans are going ahead. You will be informed when everything is finalized ". The 5th defendant also told him that efforts were being made to get the 4th defendant and him together.

In Arumugam's statement to the C. I. D. on 23rd March, he fixed the date of this conversation with the 5th defendant as 8th January, which he said was the 2nd day of the Police Swimming Competition. This was obviously a mistake, as he had in that very statement fixed the dates of the Swimming Competition as the 7th and 8th December by reference to the Officers' Movements Register. On 26th March, he corrected this mistake and stated that he went out for a drive with the 5th defendant on 8th December, the 2nd day of the Swimming Competition, but no conversation of this subject took place on that day. He said that the conversation about the loyalty of the police officers took place on 7th January when he came to Colombo in search of the hearse. He met the 5th defendant on that day at the Police Mess and went for a drive with him when this conversation took place.

The defence alleged that Arumugam was influenced by the C. I. D. officers to put back the date of his conversation with the 1st defendant to the 7th or 8th December as it did not tally with his statement about his conversation with the 5th defendant on 8th January, which he subsequently fixed as 7th January. We see no substance in this allegation as Arumugam first mentioned about this conversation with the 5th defendant on 23rd March and he could quite easily have said that it took place on a later date without correcting his earlier statement, if he was coached by the C. I. D. officers to avoid a discrepancy in the two conversations. Even if the conversation with the 5th defendant took place on the day after Arumugam's talk with the 1st defendant, there was no inconsistency in the evidence.

Arumugam stated that he visited the 1st defendant before the token strike, probably on 2nd January, at his bungalow in the evening. 1st defendant told him that he had met the 4th defendant and had discussed the overthrow of the government with him. 4th defendant had promised to look after the police side of it. 1st defendant also told him that he could not get at the Army Commander, Colonel Attygalle of the Army and Rajan Kadirgamar of the Navy. The 14th defendant was to be the Chief of Staff and he was expected to give orders to the Army. In the

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2nd part of his statement on 23rd March, Arumugam had mentioned that the 1st defendant told him that the Army Commander, Colonel Attygalle and Rajan Kadirgamar could not be got at.

Arumugam was at Kurunegala from the 22nd to the 24th January in connection with a Supreme Court case. During this period, he received information unofficially that his application for an extension of service had been granted. The case was concluded about 4 p.m. on 24th January, and he returned to the Training School that night. On his way home, he visited the 1st defendant to thank him for helping him to obtain an extension of service. On this visit, he says that the 1st defendant told him that the plans had been finalized and action would be taken at any time now. The 5th defendant would be coming down south the following day to meet them and to give the details.

Arumugam was beholden to 1st and 5th defendants for the assistance they gave him to obtain an extension of service. He was quite friendly with them at the time of these incidents. He had no reason to falsely implicate them, except as a price to obtain his own pardon. One can well understand an attempt on his part to shield them as far as possible without grave danger to himself. The 4th defendant had taken certain action against him in the course of his duties, and had recommended to the I. G. P. that he should be retired on his reaching the optional age of retirement, without any extension of his term being granted. When 5th defendant was in the Police Force he had always shielded Arumugam when the 4th defendant took any action against him. He even remitted punishments imposed on Arumugam when he came into power. Arumugam has not given evidence against the 4th defendant in this case, except to say that Brohier asked him to send the ammunition through S. I. Siri Chandra as D. I. G. Range 1 wanted them.

Arumugam stated that he withheld information against 1st and 5th defendants as much as possible and only disclosed such information as he knew had come to the knowledge of the investigators. On 2nd February, at ' Temple Trees', he was confronted with Orr. Orr was questioned in his presence about the visit to the 1st defendant on 26th January, and what transpired there. He then realized that Orr had disclosed the evidence which Brohier, Orr and he had decided to suppress. He then disclosed the evidence which Orr was aware of but suppressed the other evidence against the 1st and 5th defendants.

Though Arumugam may be speaking the truth when he said that he tried to suppress the evidence against the 1st and 5th defendants as much as possible when he made his statements, we do not propose to rely on his evidence of the conversations he had with the 1st defendant on the 2nd and 24th January, or with the 5th defendant on 7th January.

He also did not mention on that occasion that the 1st defendant told him that he had some Army Officers and was trying to contact a Police Officer to fix Police Officers to overthrow the government, when he

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asked him about the popularity of the 4th and 5th defendants in the Police Service. However, he did mention that he was aware that the 1st defendant was in this plot as a result of that talk. In view of this, disclosure on 2nd February, coupled with the circumstances set out earlier, we are accepting Arumugam's evidence of this conversation.

Arumugam's evidence is that he introduced Orr to the 1st defendant as a person who had been detailed a job for the coup on Saturday night. 1st defendant then said that he was glad to know it and the coup was going to be a 100% success and if it fails, it will be the Act of God. This evidence too indicates that the 1st defendant knew of the coup and that Arumugam was in it.

On 26.1.62 about 6 a.m. Arumugam telephoned to the 1st defendant at his bungalow and told him of the 5th defendant's visit and that he had given them the details of the plan and that they were coming to see the 5th defendant at 3 p.m. that day. The telephone register (P4) of the Training School shows that A.S.P. Administration has made a telephone tall to the 1st defendant's bungalow at that time. 1st defendant says that Arumugam telephoned to him on the 26th morning to thank him for his help as Arumugam had been granted an extension of his service.

Brohier has stated that on 26.1.'62 at 6.30 a.m. there was a telephone call from the 19th defendant through police headquarters. 19th defendant wanted S.I. Siri Chandra urgently, and requested him to oblige him by sending Siri Chandra to Colombo to meet him. Brohier agreed to do so.

Brohier informed Siri Chandra accordingly that morning. He also asked Siri Chandra to obtain some official information from the Central Garage, Narahenpita, Colombo. This was mainly to give an official cover for this trip. He also directed Sgt. Subramaniam of the Training School traffic branch to take Siri Chandra to Colombo on a motor-bicycle.

In view of a previous telephone call from the 4th defendant in his absence, Brohier telephoned to him about 7 a.m. on 26th January. 4th defendant asked him to bring some packs of cards when he came to police headquarters that afternoon for the Police Sports Club committee meeting.

At a committee meeting of the senior staff mess held on 25.1/62 at the Training School, it was decided to hold a passing out dinner on 27th January. This decision was confirmed at the general meeting of the mess held on 26.1.'62 about 8 or 9 a.m. Brohier stated that before this decision was made at the general meeting, Orr, Arumugam and he had decided to postpone this dinner in view of the information given by 5th defendant on the 25th night that the coup will be staged on the 27th night and Orr and Arumugam will not be available as they had assignments in Colombo for that night. About 10 a.m. on 26.1.'62 a circular was sent round signed by Orr, the newly elected President of

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the mess, postponing the passing out dinner. There is ample evidence in the case to prove these facts, supported by the minute-book of the mess.

Brohier says that Siri Chandra reported to him about 9 or 9.30 a.m. that day at his office and said that he met the 19th defendant at his bungalow. 19th defendant informed him that a coup had been planned by the 4th and 5th defendants for the following day and asked him to come to 19th defendant's bungalow on the 27th afternoon with a set of uniforms as he had a job to do. It may be noted that Siri Chandra had worked under the 19th defendant when he was an A.S.P. attached to the Training School.

It has been suggested in cross-examination that the decision to postpone the dinner was taken after, and therefore, because of the information brought by Siri Chandra on the 26th morning. It is immaterial to this case whether Brohier, Orr and Arumugam had already decided to postpone the dinner when the date was fixed for it at the mess meeting or they took this decision after Brohier received the confirmatory information given by the 19th defendant through Siri Chandra.

The postponement of the passing out dinner fixed for the 27th at the committee meeting held on 25.1.'62 by a notice sent round on the 26th morning, confirms the evidence of Brohier and Arumugam that the 5th defendant brought them information on the 25th night that the coup was fixed for the 27th night and Orr and Arumugam were wanted in Colombo to carry out their assignments. If Siri Chandra had returned from Colombo on the 26th morning with the information from 19th defendant, before this notice was sent out, it would have been an added reason for the postponement of the dinner, as this information confirmed that the coup was to take place on the 27th night. On the evidence however, it is doubtful if Siri Chandra returned to the Training School before the notice was sent out.

On the 26th afternoon, before the Sports Committee meeting, Brohier handed the packs of cards to the 4th defendant. The packs were for the Police Mess and 4th defendant directed a cheque to be given to Brohier for them. The 19th defendant was also present. Then 4th defendant asked him ''did that mad beggar come to meet you ? ". He asked " Who ?" and 4th defendant said " That fellow. Where the hell is he ? He has to be at a meeting at 4 o'clock ". Brohier says that he understood that the 4th defendant was referring to Sidney de Zoysa as Zoysa had told him the previous night that he had a meeting in Colombo that day and that in all probability he will come. So he told the 4th defendant that Zoysa was going to Uva and knew about the meeting.

The 19th defendant reminded the 4th defendant about the Training School ladders and ammunition. Then the 4th defendant asked Brohier to send the ladders he had in the school the following afternoon to the Fort Police Station to Johnpulle, A.S.P. Traffic, Colombo. The 4th

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defendant also asked him. to send some sterling gun ammunition on receipt of an order from the Depot. 19th defendant told Brohier that it could be sent by Siri Chandra when he came to Colombo.

Brohier says that he made an entry in his diary (P5) after this conversation at the office of the 4th defendant, under date 27.1.'62. The entry in P5B now reads, ' 3 p.m. ladders. Traffic office Colombo '. He says he also wrote under that entry ' sterling gun ammunition '. He wrote the entry to remind him to send the ladders and ammunition on the 27th. On 31.1.'62 when the C.I.D. officers had come to the Training School to investigate, he scrubbed off the entry ' sterling gun ammunition' and entered over it' 4 p.m. to 6.30 p.m. tennis'.

This conversation about the ladders and ammunition is partly admitted by the 4th defendant with certain variations. The 4th defendant denies the conversation about the mad beggar and the meeting which he was expected to attend. He says that Stanley Senanayake, S.P. Colombo had asked him if he could get men and equipment from the Training School. Senanayake who was the Director of Training before Brohier, told him that he could rely on the Training School men more than the officers of the Colombo Division. The 4th defendant told Senanayake to get anything he wanted from the Training School and that he would inform the C.I.D. Administration about it.

The 4th defendant says that on the 26th afternoon, Brohier told him that Senanayake wanted some officers, men and ladders from the Training School and Vanden Driesen A.S.P. Depot, wanted some ammunition. He told Brohier to give them anything they wanted as these were troublous times and that he had informed Mr. Wambeek, D.I.G., Administration, who was in charge of the Training School. The 19th defendant denies that he either reminded 4th defendant about getting down ladders and ammunition from the Training School or asked Brohier to send the ammunition by Siri Chandra.

Arumugam stated that on 26.1.'62 about 1 p.m. Orr and he left the Training School in his car and went to 5th defendant's flat about 3 p.m. The 5th defendant asked them if their plans were ready. Hs asked the 5th defendant for some clarification of what they had to do. He asked him where they were to assemble, what kind of attack they should make. He said that he was not familier with the place where the I.G.P. lived. The 5th defendant then told them that he lived at No. 85, Barnes Place and asked them to study the location. He also told them to keep their men at a convenient spot away from bis bungalow. He asked them to come again at 6 p.m. as he had to see a doctor re his ear trouble. Arumugam asked him if they could see the 1st defendant in the interval and the 5th defendant said' Yes, go along and come back at 6 p.m.'

About 4.15 p.m., they went to the 1st defendant's house. Arumugam introduced Orr to the 1st defendant as one having an assignment in the coup. He inquired from the 1st defendant how things were. The 1st

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defendant told him, " It is going to be a 100% success. If it fails, it will be the Act of God ". The 1st defendant was worried about the 14th defendant. He said that the 14th defendant was jittery and would not be able to give out the orders as expected of him. Arumugam told the 1st defendant that he was feeling sick and would not be able to participate. The 1st defendant told him, "do not panic ".

They witnessed a football match at Echelon Square and went to 5th defendant's flat about 6 p.m. The 5th defendant handed a closed envelope to Orr to be given to Brohier. He signed two letters and gave one to Orr and one to Arumugam, and told them they were Detention Orders. He wrote an unsigned note in their presence and gave it to Orr, and told them to go down south and show the note to V. E. Perera, 21st defendant, at Galle and David Thambyah (the discharged 22nd defendant) at Matara. The 5th defendant then asked them to go away and come back the following day at 8 p.m. ready to do the job. They returned to the Training School.

Brohier states that he returned to the Training School on the 26th evening and attended a film show there. After the show, Orr gave him a letter, which he destroyed on 29th January. He went with Orr to Arumugam's bungalow, and told him the instructions given by the 4th defendant and asked him to send the ammunition and the ladders through Siri Chandra.

On 27.1/62 about 7.30 a.m., Arumugam came to his bungalow and discussed about the sending of ammunition and told him that he would not go through with this and that one of them should inform the 5th defendant. He told Arumugam that he was not prepared to send men, and asked Arumugam to go with Orr and inform the 5th defendant that Brohier will not be coming that night and that he would not send men.

Arumugam says that Brohier came to his bungalow with Orr about 8 p.m. on 26.1/62 and asked him to send 10 magazine loads of sterling ammunition through Siri Chandra the following morning as D.I.G. Range 1 wanted them. Either that night or the next morning, Brohier told him to send the ladders.

About 8 a.m. on the 27th, Arumugam went to Brohier's bungalow. He says that he informed Brohier that he was not prepared to participate in this and Brohier told him, "If I knew that Orr and you were given assignments, I would not have allowed this" and that he would not send men from the Training School at any cost. He asked Brohier to inform the 5th defendant that he would not participate, and Brohier said that he would send Orr to inform the 5th defendant.

On 27.1/62 about 9 a.m. Arumugam ordered the armourer Sgt. James to load 10 Sterling, 1 Lanchester and 1 Sten magazines and send them to his office, as he wanted to test them. The Sgt. sent the loaded magazines as ordered, and made an entry in the Armoury Inventory Book. Arumugam says he ordered the Lanchester and Sten magazines to

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avoid suspicion and told the Sgt. that he Wanted to test them, to hide the real purpose for which they were taken. He ordered P.C. Anthony to pack the magazines and to deliver the parcel to S.I. Siri Chandra. P.C. Anthony packed them and delivered the parcel at Siri Chandra's house that morning as Siri Chandra was not at home. Arumugam ordered Sgt. Subramaniam, O.I.C. Transport, to send as many ladders as possible to the Traffic Office, Colombo. Arumugam says that he made an entry in the Officers' Visiting Book that he ordered the armourer to send the loaded magazines for testing.

Arumugam says that he was not feeling well on the 27th evening and he went to see his doctor. He was advised to rest. He had some heart ailment for some years before this. Thereafter he went to a friend's house at Kalutara and waited there. He seat his car and driver to Orr, and asked his driver to inform him that he would meet Orr in Colombo that night and that Orr could use his car to go to Colombo if he wanted it. His object was to avoid going to Colombo as directed by the 5th defendant and to avoid meeting Orr. In fact, he did not go to Colombo that night.

Brohier did not release any men from the Training School for the assignments given to Orr and Arumugam by the 5th defendant. He only allowed S.I. Siri Chandra to go to the 19th defendant as directed by the latter and he allowed Orr and Arumugam to do as they pleased. Arumugam kept back, but Orr proceeded to Colombo with the men that he got down from Galle through the 21st defendant. As the action contemplated by the 4th, 5th and 3rd defendants did not take place, Orr and his men were not called upon to carry out any assignment. The connection between Orr and 21st defendant and the action taken by them in furtherance of the alleged conspiracy will be dealt with later when we consider the case against the 21st defendant.

Siri Chandra has stated in evidence that on the morning of the 26th, Brohier informed him that the 19th defendant wanted him at his bur ga-low. He was asked by Brohier to go there and also to attend to some official business at the Central Garage, Narahenpita. Sgt. Subramaniam was ordered by Brohier to take Siri Chandra to Colombo on a motor-cycle. Siri Chandra made an entry in the routine I .B. at 7.30 a.m. on 26.1.62 that he was leaving to Colombo on the orders of the Director of Trailing. There was no reference in this entry about his going to meet the 19th defendant. This visit was being kept secret. Siri Chandra did not know the 19th defendant's house. On the way to Colombo, he asked Sgt. Subramaniam to take him to the 19th defendant's house. The Sgt. knew this bungalow and took him there. This bungalow was at MacCarthy Road. He met the 19th defendant at his bungalow. He occupied the upstair portion of this bungalow. The 19th defendant told him that the 4th and 5th defendants had planned a coup for the following day. He was asked to inform Brohier of this. He was told to come the following afternoon to 19th defendant's bungalow as he

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had a job to do there to attend to the telephone. He was asked to come in civils, but to bring a set of uniforms. Thereafter he went to the Central Garage and attended to the work given to him and returned to the Training School about 11.30 a.m. He reported immediately to Brohier and told him what the 19th defendant had told him and also gave him the information he obtained from the Central Garage. Thereafter he made a return entry at 12.30 p.m. about his trip to the Central Garage but made no entry about the visit to the 19th defendant.

Sgt. Subramaniam stated that he was ordered by Brohier to take S.I. Siri Chandra to Colombo on his motor-cycle. He did so. Siri Chandra asked him to take him to the 19th defendant's bungalow. He did so and told Siri Chandra that 19th defendant lived in the upstairs of the bungalow.

Siri Chandra went upstairs and after some time came down with the 19th defendant and his daughter. 19th defendant and his daughter went out in 19th defendant's car. He took Siri Chandra to the Central Garage. The motor-cycle was giving a little trouble and he got it attended to while Siri Chandra attended to his work there. Thereafter he brought back Siri Chandra to the Training School and made an entry in the R.I.B. of the Traffic Branch.

In that entry (P39 B) made at 1.10 p.m., he has stated 'Visited Head Quarters with S.I. Siri Chandra, Narahenpita Central Garage... .and back to School'. There is no reference here to the visit to 19th defendant's house at MacCarthy Road. He stated that the entry ' visited Headquarters' was wrong and due to a mistake. A Daily Running Chart (P40) is maintained for this motor-cycle in which they travelled. An entry (P40 A) has been made in that book for this trip-by P.C. Kasthuriratna and it is initialled by this witness. According to this entry, this trip is described as follows:-"26.1.62-on orders of the Director to go to Colombo with Sub-Inspector Siri Chandra-Out 6.55 a.m.-In 1.10 p.m.-IVom the School to go to MacCarthy Road, Central Garage and return-65 miles." There is a reference in this entry to the visit to MacCarthy Road. The 19th defendant lives on MacCarthy Road. There is no reference in this to a visit to Police Headquarters. This entry if genuine, strongly corroborates the evidence of Sgt. Subramaniam and S.I. Siri Chandra about the trip to 19th defendant's house and the evidence of Brohier relating to that trip.

The 19th defendant denies that he asked Brohier to send S.I. Siri Chandra to him or that Siri Chandra visited him on the 26th morning or that he told him of a coup planned by the 4th and 5th defendants.

Mr. Kannangara addressed us at length on the contradictions in the evidence of Siri Chandra and Subramaniam when they gave the details of their departure from the Training School, their journey to 19th defendant's house, and their return to the Training School on January 26th. It would take many pages if we were to recount his

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arguments and examine them in detail. He suggested that pages had been fraudulently extracted from the book P40 and new entries made relating to the journeys of that morning; that the different versions of Siri Chandra and Subramaniam could not possibly be consistent with journeys they actually made ; that the services of P. C. Kasturiratne had been obtained to fabricate entries; and that Kasturiratne could not possibly have made the entries produced at the time he claimed to have made them in view of the inoculation he had received that morning. He asked us to believe 19th defendant in preference to Siri Chandra and Subramaniam on this part of the case.

We have considered his arguments, and are satisfied that his charge of dishonest conduct against these officers is groundless. We also hold that there has been no dishonest conduct in regard to the book P40. There is no evidence that every book like P40 has 31 pages, even though the two books 19D25 and 19D26 have 31 pages each. The contents of the books, in regard to the printed matter, is certainly different as may be seen when the number of pages containing monthly summaries are examined. We accept the evidence of Siri Chandra and Subramaniam about this visit. Subramaniam was sent to provide a means of transport and not because Siri Chandra could not otherwise find his way to 19th defendant's house. Siri Chandra took the parcel of ammunition to 19th defendant's house on the 27th because 19th defendant had asked Brohier to send it there.

With regard to the telephone call which Brohier said he received from 19th defendant earlier on the 26th morning, in consequence of which he sent Siri Chandra to meet him, it is the prosecution case that the call was actually booked through Police Headquarters although the Trunk Call Ticket (P136) has the number ' 79861' altered to ' 79821 ' (the latter being the telephone number of Police Headquarters). No. 79861 is the telephone number of the Labour Office. The curious fact is that neither the Telephone Register of Police Headquarters nor the Telephone Register of the Labour Office has a booking of this call entered in respect of 26th January, although it is beyond doubt that such a call went through at 5.58 a.m. to the Police Training School. We think that the call originated from ' 79821' to Kalutara 365 and the alteration in the Trunk Call Ticket was a genuine one. It was in respect of a call made by 19th defendant to Brohier that morning, in consequence of which Brohier sent Siri Chandra to 19th defendant. The witness Jayaratnam who wrote out the ticket P136 has given evidence about it which we accept.

Siri Chandra says that when he reported to Brohier on the 26th after his return from Colombo, Brohier gave him leave for the 27th and asked him to report to him the next day and that he would give Siri Chandra a small parcel to be given to the 19th defendant. This does not conform to Brohier's evidence, as he was only told about 3 p.m. that day to send the ammunition.

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As ordered, Siri Chandra says that he reported to Brohier on the 27th morning and he was told that the parcel would be sent to his bungalow. P.C. Anthony delivered the parcel of ammunition at Siri Chandra's house in his absence, on the orders of Arumugam. Siri Chandra left the Training School about 9.15 a.m. on the 27th for Colombo, having made an out entry in P7 (page 37). He took this parcel with him in a suit case and travelled to Colombo by bus. He reached Colombo about 1 p.m. and went to the 19th defendant's bungalow and handed the parcel to him. The 19th defendant asked him what it contained. He said he did not know. The 19th defendant took the parcel inside and asked him to sit in the verandah and wait. He was there till 7 p.m.

About 6.30 p.m. 19th defendant left in his car. About 7 p.m. the 4th defendant came there in his car, with a police driver. After inquiring from Mrs. Wijesingha about his identity, 19th defendant took Siri Chandra in his car to his residence about 7.20 p.m. About 10 minutes later, the 4th defendant asked him to go to Johnpulle's bungalow next door. He went there and stayed in the verandah. The 20th defendant was downstairs. Siri Chandra told him who he was, that he was sent by Brohier, and that the 4th defendant had asked him to come there. The 20th defendant then asked him to sit in the verandah. About 40 minutes later, Johnpulle came there and he gave him the same information.

While he was there, 4th defendant came there on two or three occasions and the 19th defendant too came there later. About 11.30 p.m. the 4th, 19tb and 20th defendants and Johnpulle dispersed. 19th defendant drove Siri Chandra in his car to his bungalow and asked him to sleep there. He dozed on a settee till about 2 a.m. Then the 19th defendant spoke to him and told him that there had been trouble and that the 4th defendant had been taken into custody. 19th defendant asked him to get back to the Training School, and said that his house may also be searched. When he came downstairs to go away, the 19th defendant gave him 3 Sterling guns wrapped in paper and asked him to give them to Brohier. He put the guns into his suitcase and went to the junction. He got into a taxi there and went to Mt. Lavinia and took bus to Kalutara. From there he took a taxi to the Training School and reached there about 4.30 a.m. He left the guns in his house and rested till about 7 a.m. About 8 a.m. he went to Brohier's bungalow and informed him that there had been trouble in Colombo, the 4th defendant had been arrested and that the 19th defendant had given him 3 Sterling guns to be given to Brohier. Brohier told him that he had nothing to do with the guns and asked him to hide them. So he hid them under some firewood near his house.

The 19th defendant admitted that Siri Chandra brought him a parcel containing loaded magazines of ammunition from Brohier. He says he did not know anything about the ammunition till Siri Chandra gave him the parcel saying it was sent by Brohier to the 4th defendant. He phoned

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up 4th defendant on receipt of this parcel. 4th defendant told him that this should have been sent to Vanden Driesen and he would ask Vanden Driesen to collect it.

If, as the 4th defendant says, Brohier told him on the 26th that Senanayake wanted men and equipment from the Training School and Vanden Driesen wanted Sterling gun ammunition and he asked