Case of Potta Nowfer and the High Court Judge | Sunday Observer

Case of Potta Nowfer and the High Court Judge

5 September, 2021

A few days ago, Mohamed Niyaz Nowfer alias ‘Potta Nowfer’, who was on death row, succumbed to the Covid-19 virus.

He was sentenced to death over the murder of former High Court Judge, Justice Sarath Ambepitiya and this case was one of the much talked about topics at the time. With regard to this case, the Criminal Investigation Department (CID) of the Sri Lanka Police conducted a commendable investigation, after which they nabbed the killers.

The main reason for the success of the investigation was the use of both Deoxyribonucleic acid (DNA) and fingerprint technology for the first time in Sri Lanka since the Hokandara murder case.

On November 19, 2004, High Court Judge Sarath Ambepitiya, as usual, returned to his residence on Sarana Road in Colombo 7 in his car with court officer Upali Ranasinghe, his official security police officer, and parked the vehicle in the porch of the house. As he got out of the vehicle and took his bag from the back seat, he was shot and killed by four men who came in a white van. Upali Ranasinghe was shot dead as soon as he got out of the vehicle.

Testimony of driver

Susantha Pali, the first witness in the case, was the driver of the van numbered 253-0882 and worked as a van driver for Leeds Cab Service. Around 12.30 pm on November 19, 2004, the witness was instructed by his office to pick up several passengers from near the Elphinstone Theatre.

The witness arrived at the Elphinstone Theatre at 12.40 pm. The van was marked in front of the theatre by a man who identified himself as the customer. About 10 minutes later, he and three others got into the van. One was in the front seat with the driver and the other three were in the back passenger seats.

The witness, who was able to see the passengers clearly, identified the 2nd, 3rd, 4th, and 5th accused as persons who were travelling in his van on November 19, 2004 at the identification parade of the trial.

He was particularly able to describe the 3rd defendant as the person who parked the van, and the 5th defendant as the person sitting in the front seat, wearing a gold chain around his neck.

The defendant informed the witness that they were going to Moratuwa and explained the route they should take to reach their destination.

Near the John de Silva Theatre, the suspects got out of the van. The witness observed that the 3rd accused was having a conversation on a mobile phone. The defendant informed the witness that a person called ‘sir’, whom they addressed as the teledrama director, was late and that they were on their way to Moratuwa to meet this person.

Around 1.15 p.m., the accused got back into the van and the witness ordered them to be taken to a restaurant. The witness later identified the restaurant as to be on Kynsey Road. The witness entered the restaurant with the defendant and sat in a room to the left of the door.

According to the witness, the defendant asked for food that he could have prepared in a hurry and to drink half a bottle of arrack with their food. As the driver of the vehicle, the witness refrained from drinking alcohol at the restaurant. The witness said that after one of the accused settled the bill, they got back into the van and resumed their journey.

On the way, however, the witness was asked to park at a bar near Castle Hospital on Castle Street, where they bought another half a bottle of arrack.

At the direction of the 5th Defendant, who was seated in front, the witness passed the Otters Sports Club on Sarana Road, about 50 metres away, where the defendants drank. The witness observed the 3rd accused vomiting near the wall where the van was parked. During this period, he observed that the 2nd accused was constantly communicating using a mobile phone.

About 15 to 20 minutes later, the defendants abruptly got back into the van and ordered the witness to go ahead and turn left. While driving along the road, the witness saw a car parked in a nearby garage and a man in a white shirt and black pants standing next to the car. Before long, the witness was ordered to stop the van and all the defendants jumped out of the vehicle at once.

According to the witness, the sound of gunfire was heard a moment later. After the shooting, the defendants returned to the van in a hurry, and the witness stated that the 5th defendant had ordered the witness to get out of his vehicle.

Fearing for his life, the witness immediately agreed, abandoned the van, and sought refuge in a nearby building. He used a telephone at the scene to report what had happened to his office. The shooting took place around 3.15 p.m.

The above evidence was obtained by the CID in conjunction with the fingerprints of the 2nd, 3rd, and 5th accused in the relevant white van and the bottle of arrack found in the restaurant at Alwitigala Mawatha, near the scene of the murder.

Oral evidence of Achala Wijerama, Harshani Perera, and Surangi Arunila, (employees of the restaurant) also proved to be correct and corroborated other evidence in this case. The ammunition found at the scene matched the pistol found in the suspects’ possession when they were arrested. According to Dr. Alwis’ forensic report, both of the victims died of gunshot wounds to the brain (Cerebral Laceration).

DNA testing

DNA consists of 23 pairs of chromosomes in the nucleus of one person’s cell. Any two individuals are 99% genetically identical and about 1% different. This is called multidimensional DNA. The probability of matching another person’s DNA is less than one in a trillion. The number of iterations at a certain genetic location varies from person to person.

When a person vomits, epithelial cell fluid in the inner wall of the stomach and esophagus may come out of the mouth with vomiting through the esophagus. Therefore, DNA extraction from these cells can be analysed. Men have the Y chromosome and it is not found in women. By analysing the Y chromosome, the DNA of two men can be compared.

Dr. Maya Gunasekara, Director of Gene-tech Institution, conducted the Y chromosome analysis on the vomit sample and determined that the vomiting started in a male. The STR found in the DNA extraction matched with the 3rd defendant in the case.

During the arrest of the second suspect, the CID found a cell phone in his possession that was used to carry out the conspiracy. Through this mobile number, the CID was able to find the locations from which the signals came from and to arrest the mastermind of this murder, first accused Mohamed Niyaz Nowfer alias “Potta Nowfer”.

According to the testimony of a person called Thilak, it was proved that he had spoken on the phone that day. It was further found that seven telephone calls were exchanged between him and the four accused from 8.07 am to 4.34 pm that day.

The main reason for Potta Nowfer to plan the murder was case No. 693/2001 against him which was being tried by Colombo High Court Judge Sarath Ambepitiya while a witness said that he had received death threats from the accused. As a result, the judge ordered Potta Nowfer to be arrested and refused bail.

High Court judgment

Considering the oral as well as material evidence mentioned above, a three-judge bench of the High Court (Trial-at-bar) convicted the first four accused, including Potta Nowfer, of Section 32 of the Penal Code for conspiracy to commit murder, 29 for conspiracy, and 294 for murder. In addition, the 1st defendant was sentenced to life imprisonment on all charges of aiding and abetting murder.

Supreme Court

The accused then filed an appeal before the Supreme Court. Ranjith Fernando was referred through several other lawyers. The case was heard before a five-judge bench headed by Chief Justice Shirani Thilakawardena.

According to Section 134 of the Evidence Ordinance, only one witness may prove criminal charges against an accused. But the evidence must be prudent, convincing, accurate, and credible, and the facts of the allegation must be proved beyond a reasonable doubt.

Section 10 of the Evidence Ordinance states that the actions of one person in reference to the common intention when various persons conspire to commit an offense, are considered to be the actions of all. There must be evidence that each conspirator has knowledge of the common intention and plan. But not everyone should have the same knowledge in this regard.

Accordingly, when a crime is committed by several people in order to achieve a common intention, only one person acts, but everyone considers it to be done individually.

According to Section 32 of the Penal Code, in a murder case against all the accused who are held accountable, the common intention must be the murderous common intention.

The information obtained from the accused under Section 27 of the Evidence Act or the veracity of the confessions has been proved on the evidence here. After considering all the above - written, material, and oral evidence in the case, the five-judge bench unanimously dismissed the appeal and upheld the judgment of the High Court.