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Justice H.N.G. Fernando was the Commissioner of Assizes and was holding sessions in Kalutara. He was one of the great judges we had produced. He excelled in law and was master of the facts. He was able to remember minute details involving complex civil or criminal cases that came before him.

The judges were independent and did not permit negative media publicity to conclude in advance their judgments based on public disquiet. Even in those days there were campaigns over the rate of murder being extremely high and the rate of acquittals also being high. Social restructuring and sending messages to society was not their vocation. There were laws and judicial precedence that decided the fate of a case. As my friend Ranjith Devapura commented, “Today, the benefit of doubt was given to the Prosecution and the benefit of the sentence was given to the Accused”.

Five brothers were charged by the Attorney General with having committed murder by cutting and stabbing the victim with sharp instruments. Dr. Colvin R. de Silva was retained. At that time, though there was a galaxy of great lawyers like G. G. Ponnambalam, George Chitty, E. F. Gratian and E. R. S. R. Coomaraswamy, the clients flocked to Colvin R. de Silva, as he was known in Sri Lanka to be the “Edward Marshall Hall, known in the whole of Britain as the Great Defender”, the cross examiner par excellance. The villagers to date speak about the Sathasivam murder case, where the brilliance of Colvin R. de Siva transformed the villain, Sathasivam, into an angel and sent the ‘molgaha’ (Rice pounder / pestle) to the gallows.

My memory recalls the oratorical brilliance of Dr. Colvin R. de Silva when he spoke at the farewell dinner, given to one of the most independent judges of impeccable virtue, Neville Samarakoon, QC, who had to retire under a cloud of dishonor brought by that infamous impeachment motion of J. R. Jayewardene. The anger and the disgust of the legal profession were clearly exhibited when the Bar Association decided to give Chief Justice Neville Samarakoon a resounding farewell. Dr. Colvin R. de Silva was the main speaker. The manner in which he made his speech and the impact it had on every Member of the Bar was so profound, that to date, Neville Samarakoon is venerated as one of the greatest independent Chief Justices of Sri Lanka.

Sir Ukwatte Jayasundera: A brilliant lawyer known for his razor sharp brain

It is unfortunate that no one had recorded Dr. Colvin R. de Silva’s speech on that date. Having heard the so called great speakers of the world and their speeches, I am yet to find a single speaker who matches the oratorical brilliance of our own Dr. Colvin R. de Silva.
The four elder brothers retained Dr. Colvin R. de Siva. The youngest brother retained Sir Ukwatte Jayasundera Q.C. Sir Ukwatte was a brilliant advocate with plenty of forensic skills but lacked the flamboyance of Dr. Colvin R. de Siva or for that matter George Chitty.

The Additional Solicitor General appeared for the prosecution. After the medical and other expert evidence was led, the Prosecution called the only eyewitness who had seen the dastardly crime. The witness described in detail how he saw the five brothers accosting the deceased to a lonely place on the banks of the Kalu Ganga, and how they assaulted him with knives and swords and killed him. The evidence was precise to the point and the witness did not try to add unnecessary details of the killing in order to make it more dramatic.

When the witness was led, Chief Justice H. N. G. Fernando was watching the reaction of the witnesses and glancing towards the accused.
When the witness concluded his evidence, the Additional Solicitor General smiled as he felt that his professional duty had been made easy by the excellent testimony of this witness.

Dr. Colvin R. de Silva then got up. It must be mentioned that the very fact that the giant of the Bar, Dr. Colvin R. de Silva was appearing in the Assize Court in Kalutara was sufficient to fill the dilapidated Court House with spectators. The crowd overflowed even into the garden. The crowd had come in numbers to witness Colvin R. de Silva in action. The moment he got up, there was a hush of silence as though some may have thought and equated Dr. Colvin R de Silva to their matinee idol Ranjan, the hero in the film ‘Chandralekha’.
What was missing was the whistles and the cheering which was in abundance at the cinemas where Chandralekha was shown. They curbed their impetuosity but in their minds they drew a picture of Dr. Colvin R De Silva smashing the witness’s testimony to smithereens. Somehow or the other, the villagers did not believe a word of this witness’ testimony. The witness described in detail how he witnessed the gruesome crime while perched up a tree, fishing.

Dr. Colvin R de Silva’s questions are long and framed in such a way that the witness would say something which may be adverse to the prosecution’s case. His hair was disheveled and it made various patterns as he shook his head; the hair locked and unlocked as Colvin bent forward and turned his frame hither and thither and posed questions which were like thunder and lightning. The witness stood in the dock unshaken, unmoved and was not suborned by the master skills of the Master of Cross Examination. The audience was aghast. They simply sat in silence watching how their hero (Dr. Colvin R. de Silva) was being beaten by the villain (witness). Unlike in ‘Chandralekha’, there was no horse to help and rejuvenate the fallen hero. The crestfallen Colvin R. de Silva questioned the witness for the whole session but he was like the needle of Cleopatra unmoved by any gale force whether emanating from the mouth of Dr. de Silva or from the Indian Ocean.

The spectacle was unfolding in the most unlikely manner and Justice H. N. G. Fernando almost, in sympathy with Colvin R de Silva, summoned him to the Bench and told him, in no uncertain terms, that he would direct the Jury for a conviction for murder and the Jury would definitely convict the accused and that he had no hesitation in sending all five accused to the hangman but, as a merciful alternative, he was prepared to consider a plea for manslaughter not amounting to murder from at least two of the accused, and the minimum jail term would be not less than 15 years each, but the other three could go home. He said, “I am adjourning the proceedings so that you have time to convince the accused.” Dr. de Silva thereafter approached the accused, standing in the dock and told them that the Court was willing to consider a plea from two accused and that the others would be discharged and asked whether the first two accused were willing to plead guilty. As soon as he said this there was a big ‘thump’ and the two accused fell in the dock unconscious.
When the sessions resumed, Dr. Colvin R de Silva informed the outcome of the plea bargain to the presiding Judge Justice H. N. G. Fernando, and he was furious. Dr. Colvin R de Silva questioned the witness and took the whole day and except for minor blemishes the evidence of the witness remained un-impeached and untarnished.

On the next day, it was the turn of the Counsel, for the fifth accused, Sir Ukwatte Jayasundera QC, to cross examine the fisherman. He stood up, a diminutive counsel who had no flamboyance, no reputation, at least amongst the villagers, as a great cross examiner. He also had this distinct disadvantage as villagers believed that a Counsel from Kalutara was inferior in talent and other skills to the Counsel imported from Colombo. But, many who had retained him knew of his forensic abilities and his razor sharp brain. He was also known among the lawyers for his unusual ability to destroy a witness even before the witness testified on the main facts.

He got up and looked at the witness. His first question shocked even Justice Fernando. “Which caste do you belong to?” The witness said “Govigama”. Then he said, “Ah, so these days even the Govigama people have taken to fishing?”

The witness did not answer. “So how long have you been fishing?”

“For nearly 5 years my Lord”.

“Then you must have caught a lot of fish”.

The witness said, “Yes” and smiled.

“The day the murder took place was it a special day?”

“No” like every other day I came to fish and as usual, I climbed the tree and was trying to catch fish when this happened.

“You said you are a Buddhist?”

“Yes”.

“So, do you often go to the Kalutara Bodhiya?”

Not very often but on every Poya Day I go”.

“So like a good Buddhist you avoid your vocation of fishing on Poya Days?”

“Yes my Lord,” the witness said.

“Then witness, you committed a cardinal sin by fishing on a Poya Day?”

The witness did not answer. “Did you know that the day that the murder took place was a Poya Day?”

“No Sir”. I did not know”.

“Surely witness, you were fishing on the Banks of Kalu Ganga and facing the Kalutara Bodhiya. At this time in the evening there are many ceremonies, many Buddhist Pinkamas at the Kalutara Bodhiya which could be heard by anyone on the Banks of Kaluganga.”

The witness did not answer. The interpreter shouted “No answer Sir.”

Then, Sir Ukwatte Jayasundera came close to the witness and looked sharply into his eyes. “What type of fish, witness, did you try to catch on that day?”

The witness was seen trembling.

The Mudliyar shouted “No answer Sir.”

Then, Sir Ukwatte Jayasundera looked at the Judge and turned towards the witness. “Name some of the types of fish you have been catching from the Kalu Ganga for the past five years. The witness paused and everyone could see that his mouth was closed and he could not answer. He trembled and a shiver went through his spine.

That was enough for one of the greatest judges of Sri Lanka Justice H. N. G. Fernando. He was so angry that he removed his silken wig and placed it on the bench. His eyes were fuming with anger and he told the Additional Solicitor General that he did not believe one word that this witness had spoken. “He is an inveterate liar and the Crown should inquire whether this witness could be charged for perjury. Then there was another big ‘thump’. This time the sound came from the witness box. The witness had fallen unconscious in the witness box.

Later, all five accused were acquitted and Dr. Colvin R de Silva had made a hasty retreat. The diminutive, non assertive Sir Ukwatte Jayasundera QC, was mobbed by the crowd and the accused, their parents and their relatives were all seen falling prostrate before him, worshipping him as if they had seen the reincarnation of their spiritual deity. Ukwatte Jayasundera, quietly walked towards his Humber Pullman and the chauffeur took him and his juniors to the Kalutara Rest House for a drink.

If not for the brilliance of Sir Ukwatte Jayasundera QC, five innocent men would have been hanged and buried in the prime of their life. This was one time that the Great Colvin was outfoxed and outwitted by Sir Ukwatte Jayasundera. (The writer is a senior lawyer)