DOCK STATEMENT AND ITS IMPORTANCE
IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC
OF SRI LANKA
|
|
|
In the matter of an Appeal in terms of section 331 (1) of the Code of
Criminal Procedure Act No- 15 of 1979, read with Article 138 of the
Constitution of the Democratic Socialist Republic of Sri Lanka. |
|
Court of Appeal No:
|
|
Democratic Socialist Republic of Sri
Lanka |
|
CA/HCC/0080/2020
|
|
COMPLAINANT |
Vs.
High Court of Panadura Weddikkarage Thusharika
Priyadarshani
Case No: HC/3380/2016 Silva
ACCUSED
AND
NOW BETWEEN
Weddikkarage Thusharika
Priyadarshani
Silva
ACCUSED-APPELLANT
Vs.
The Attorney
General,
Attorney General’s Department,
Colombo 12
RESPONDENT
|
Before |
:
Sampath B. Abayakoon, J. |
|
|
: P.
Kumararatnam, J. |
|
Counsel |
: Neranjan Jayasinghe for the
Accused Appellant |
|
|
: Sudarshana
De Silva, DSG for the Respondent |
|
Argued on
|
:
27-07-2022 |
|
Written Submissions |
:
19-03-2021 (By the Accused-Appellant) |
|
|
:
04-05-2021 (By the Respondent) |
|
Decided on |
:
05-09-2022 |
Sampath B Abayakoon, J.
This is an appeal by the accused-appellant (hereinafter
referred to as the appellant) on being aggrieved by her conviction and the
sentence by the learned High Court Judge of Panadura.
The appellant was indicted before the High Court of Panadura
for having in her possession 1.38 grams of Diacetylmorphine, commonly known as
Heroin on 5th August 2015, which is an offence punishable in terms
of Poisons Opium and Dangerous Drugs (Amendment) Ordinance No. 13 of 1984.
She was also charged with trafficking the said quantity of
Heroin which was also an offence punishable in terms of the same Ordinance.
After trial, the learned High Court Judge of Panadura found
the appellant guilty as charged by his judgment dated 11th June
2020. Accordingly, she was sentenced to 10-year rigorous imprisonment on each
of the 2 counts, and on count one, she was ordered to pay a fine of Rs.
100,000/- and in default, to serve a rigorous imprisonment term of 1 year.
The 10-year prison term imposed on each of the counts was
ordered to run concurrently.
Facts in brief.
PW-01 was the Officer-In-Charge (OIC) of the Angulana Police
Station. Upon receiving information on 5th August 2015 that a
female wearing an orange coloured skirt and a light green blouse would carry
Heroin for the purpose of trafficking and she would be walking from Kaldemulla
area and come to pass Dewata Road Bridge around round 7.30 in the morning.
Accordingly, he has organized a raid.
The witness has received the said information at 6.40 a.m.,
and after assembling a team of four police officers in addition to himself,
following the due procedure, he has left the police station in 5 minutes time
at 6.45 a.m. The mentioned place of the trafficking was about 500-600 meters
away from the police station. In his evidence-in-chief on 12-10-2017, PW-01 has
stated that he went past the mentioned bridge and traveled about 150 meters in
the gravel road, stopped the police vehicle and asked the driver to take the
police jeep further away and walked back to a place near the bridge with the
other officers and waited behind two three-wheelers parked in order to confront
the suspect.
The suspect as described by the informant has walked passing
the place where they were waiting around 7.35 a.m. After stopping and
questioning her, the witness has found a pink-colored cellophane bag in her
right hand. Upon inspection, he has identified the contents of the bag as
Heroin, and accordingly, she was arrested and taken to police the station.
It was his evidence that he returned to the station at 8.40
a.m. and took the necessary steps to weigh the Heroin found, and to seal the
productions and also to hand over the productions to the police reserve. When
weighed, he has found 22450 milligrams of Heroin.
However, later in his
evidence, the witness has stated that he and his team of officers got down from
their jeep near the location where they waited for the suspect to arrive and he
ordered the driver of the jeep to take it away. The witness has identified the
person arrested as the appellant. In his evidence the PW-01 has admitted that
he entered detailed notes at 5.20 p.m. on that day, and has explained the
delay, stating that since he had several other matters to attend as the OIC of
the station, he could only do it in the afternoon.
PW-04, WPC 7630 Kumudini Damayanthi was the officer who
assisted PW01 in the raid and the arrest of the appellant. It was her
evidence that police reserve officer Nandapala informed her at 6.30 in the
morning to get ready for a raid and report to the OIC, and she left the police
station with the team of officers at 6.45 am and got down from the vehicle near
the location where the detection was made. It was her evidence that when the
OIC stopped the appellant and questioned her, she had in her right hand, a pink
colour grocery bag which she was holding tightly in her palm and when
inspected, Heroin was detected in the parcel. It has been revealed during the
cross-examination of the witness that she has entered the time she was informed
to get ready as 6.20 in the morning in her notes.
At the trial, the prosecution has led evidence to establish
the chain of custody of productions and has led the evidence of the
Government analyst to establish that the quantity sent for their analysis had a
pure quantity of 1.38 grams of Heroin.
When called for a defence at the conclusion of the
prosecution case, the appellant has given a dock statement and has called two
witnesses on her behalf. It was her position that she was never arrested at the
time and by the witnesses who claimed that they arrested her with Heroin. It
was her statement that she was arrested around 2 p.m. on that day while walking
past the location where witness number one claims. It was her position that she
was arrested by two other male police officers and nothing was found in her
possession but was forcibly taken to the police station and Heroin was
introduced to her. This has been her position when the prosecution witnesses
gave evidence as well.
She has also explained that, when her son came home from
school with an injury, she needed money to take medicine for him and as she had
no money, she went to meet a friend called Sanoja who lived about 3 km away
from her home to borrow some money, but she could not obtain money and while
returning home she was arrested by the police.
Sanoja mentioned by the appellant in her dock statement has
given evidence under oath in this case. It was her evidence that the appellant
was a friend of hers and she used to come and borrow money in her emergencies.
On 5th August 2015, around 2 - 2.15 in the afternoon, she came to
her house and requested some money from her, but she could not provide any, and
the appellant left her house thereafter was her evidence. She has stated that
around 3.30 pm, the appellant’s husband came looking for her and inquired whether
his wife came and met her, and left after being informed that she came and left
her house. After about 4 days, the witness had come to know that the appellant
was arrested on her way back from her house, and it was her evidence that she
took down the date on which the appellant came to her house in a book she maintains
to record her lending of money to others. She has admitted that she was in the
habit of lending money to others in order to earn an income.
The husband of the appellant has given evidence and has
stated that since his wife who left the house in order to borrow some money
from her friend did not return, he went and met the earlier mentioned Sanoja
and he was informed that she came and left. Later he has come to know that her
wife was arrested and taken to the Angulana police station where he found his wife.
The Grounds of Appeal
At the
hearing of the appeal, the learned Counsel for the appellant formulated the
following grounds of appeal for the consideration of the Court.
(1) The learned High Court Judge had
failed to consider vital contradictions in the evidence of the prosecution
witnesses and thereby reached an erroneous conclusion that the prosecution
witnesses are credible.
(2) The learned High Court Judge had come
to a wrong finding that the prosecution had proved the chain of
productions.
(3) The learned High Court Judge failed
to evaluate the dock statement and had rejected the same by applying wrong
principles of law and had failed to give valid reasons for rejecting the
evidence of the defence witnesses.
Consideration of the Grounds of Appeal
Although the learned Counsel for the appellant formulated the
second ground of appeal in relation to the custody of the productions, it was
later conceded by him that he has no basis for the said ground of appeal. Hence,
it is the 1st and the 3rd grounds of appeal that will be
considered in this judgment.
It was the contention of the learned Counsel for the
appellant, that the learned High Court Judge failed to consider the vital inter se and per se contradictions of the evidence of the two main witnesses,
namely, PW-01, the officer who led the raid, and PW-04 the female police
officer who assisted him. He brings to the notice of the Court, the
discrepancies in the two witnesses’ evidence with regard to the time PW-04 was
ordered to get ready for the raid and PW-01’s evidence in relation to the time
he received the information. He also points to the evidence of PW-01 where he
has stated in his initial evidence-in-chief that he and his team went about 150
meters passing the location where the detection was made and returned on foot
and also the time alleged to have been taken by PW-01 and his team to leave the
police station after the receipt of the information. Another factor contended
by the learned Counsel was the alterations appeared to have been made in the
notes with regard to the mileage meter of the police jeep, to argue that if the
distance to the place of detection was about 500-600 meters away from the
police station, there was no reason for the police jeep to travel several
kilometers before it returned to the station. He formulated this argument based
on the appellant’s statement that she was not arrested by PW-01 nor was she
taken in a jeep, but by two other male officers and taken to the station in a
three-wheeler and the arrest was made around 2 p.m. in the evening.
In his judgment, the learned High Court Judge has in fact
considered the differences of time mentioned by two main witnesses and the
changes that have been made to the notes with regard to the mileage meter of the
jeep and has determined that those are minor deficiencies in the evidence and
that has not created any doubt as to the evidence of the prosecution.
It is the settled law that a trial judge has to consider the
evidence of the prosecution as well as that of the defence in its totality to
find whether the prosecution has proven the charges against the appellant
beyond a reasonable doubt.
In the case of James Silva Vs. The
Republic of Sr Lanka (1980) 2 SLR 167, it was stated that,
“A satisfactory way to arrive at a
verdict of guilt or innocence is to consider all the matters adduced before the
Court whether by the prosecution or by the defence in its totality without
compartmentalizing and asking himself, whether as a prudent man, in the
circumstances of the particular case, he believed the accused guilty of the
charge or not guilty.”
It is my view that the mentioned deficiencies in the evidence
need to be considered in the light of the defence taken up by the appellant to
determine whether the evidence was credible and truthful enough. In this
regard, the determination whether the story of the prosecution was probable is
also a matter that needs to be looked into.
The evidence of PW-01 was that he received an information at
6.40 in the morning regarding the trafficking of Heroin in the area mentioned
by the informant. He was also informed of the dress that the trafficker would
be wearing and her features. It was his evidence that, after he received the
information, he entered the necessary notes, assembled a team of officers and
collected the necessary equipment for a raid of this nature, and left the
police station after checking the other officers who took part in the raid and
the police jeep to ensure that nothing unwarranted is carried by any member of
the raiding party. His evidence was that all this took just 5 minutes and he and
his team left the station at 6.45 in the morning.
The question here is whether it is possible for a reasonably
prudent person to do all these things and leave in just 5 minutes after the
information. When questioned in this regard, PW-01 has explained, saying that
since it was important to take action immediately, he left the station within 5
minutes. However, the information he received had been that the trafficker
would come around 7.30 in the morning to the location mentioned by the
informant. That means PW-01 had over 50 minutes he only had to travel about
500-600 meters to reach the location. Therefore, it is not possible to believe
the need for the PW01 to act immediately as claimed. If the information was
that the trafficker would come within 5-10 minutes, such information can be
treated as information that needs very fast action. In such a scenario, even
an officer leaving the station without following all the required procedures
can be justified. Under the circumstances, I am of the view that the evidence
of the PW-01 that he and his team after following all the due procedures, left
the station within five minutes is not a piece of evidence that can be
considered probable.
When it comes to the evidence of PW-04 the female police
officer who assisted PW-01 in the detection, she has been informed by the
officer who was in charge of the police reserve to get ready to go for a raid
at 6.30 in the morning. Contrary to that, it has been brought to the notice of
the Court that in her notes with regard to the time, she has mentioned that she
was asked to get ready at 6.20 am. Her evidence with regard to the time cut
across the evidence of PW-01 who says he received the information at 6.40 in
the morning. If he received the information at that time, it was not probable
for the PW-04 to be informed to get ready for the raid before the receiving of
the information, which leads to the question of whose evidence is to be believed
in this regard. I am of the view that such a doubt should be considered in
favour of the appellant given her stand as to her time of arrest.
Apart from the above deficiencies as to the time, PW-01 in
his evidence-in-chief has stated that he and his team travelled about 150
meters passing the location where the detection was made, stopped the jeep, and
after informing the driver to take the jeep away, walked back to the place of
detection where they waited little over half an hour having taken cover behind
two three-wheelers parked there. However, later in his evidence, he has changed
his position and has stated that he and his team got down at the location where
the detection was made and the police jeep driver was asked to move on and stay
away from the location. The reason for this change in the story appears to be
the realization that the notes of the other officers do not match his earlier
evidence in that regard.
It is my considered view that I am in no position to agree
with learned High Court Judge’s view that these are minor discrepancies and
they do not create a doubt in the evidence of the prosecution. I am of the view
that it was important for the learned High Court Judge to consider the evidence
in its totality and come to a firm finding whether the prosecution has proved
its case beyond reasonable doubt.
The third ground of appeal urged by the learned Counsel that
the learned High Court Judge failed to evaluate the dock statement and the
evidence of the defence witnesses in its correct perspective and rejected the
same by applying wrong principles of law becomes relevant under the
above-mentioned circumstances.
In this matter, the appellant has made a statement from the
dock when she was called upon for her defence and had called two witnesses in
support of her stand.
Throughout the trial, her stand has been that she was not
arrested in the morning of that day in the manner stated by the witnesses but
was arrested after 2 p.m. by two other male officers and no Heroin was found in
her possession, but she was taken to the police station and charged for having
Heroin in her possession.
When called for a defence in a criminal case, our Courts have
recognized the right of an accused to give evidence under oath and subject
himself or herself to the test of cross-examination or elect to make an unsworn
statement from the dock. Any unsworn statement made by an accused from the dock
too has evidential value subjected to the infirmities that the said statement
was not made under oath and not subjected to the test of cross-
examination.
In the case of Queen
Vs. Kularatne (1968) 71 NLR 529, it was held that while jurors must be
informed that such a statement must be looked upon as evidence subjected, however, to the infirmities that the accused’s statement is not made under oath
and not subjected to cross-examination.
Held further;
1. If the dock statement is believed, it
must be acted upon to.
2. If it raised a reasonable doubt in
their minds about the case of the prosecution, the defence must succeed. and;
3. It must not be used against another
accused.
It was held in the case of Don Samantha
Jude Anthony Jayamaha Vs. The
Attorney General, C.A. 303/2006, decided on 11-07-2012 that,
“Whether the witness of the defence
or the dock statement is sufficient to create a doubt cannot be decided in
vacuum or in isolation, because it needs to be considered in the totality of
evidence, that is in the light of the evidence for the prosecution as well as
the defence.”
The learned High Court Judge in his judgment at page 14
(pages 303 and 304 of the appeal brief) has reasoned the appellant’s dock statement
in the following manner.
“විත්තිකාරියට විත්තිවාචකයක් ඉඳිරිපත්ත කිරීමට නියම කලවිට ඇය විත්තිකූඩුවේ සිට ප්රකාශයක් පමණක් කර ඇත. ඇය සාක්ෂි කූඩුවට පැමිණ සාක්ෂි දීම පැහැර හැර ඇත. එසේ හෙය්න් පැමිණිල්ලට ඇය පොලිස් ස්ථානයට කල ප්රකාශය පිළිබඳව ප්රශේන කිරීමට ලැබෙන අවසේතාව මගහැරී ඇත. ඒ අනුව ඇය සෑම අවසේවතාවකදීම එකම සේථාවරයක් ගත්ත බව පොලිස් ස්ථානයට කරන ලද ප්රකාශවයන්ද එම ස්ථාවරය ගත බව තහවුරු කිරීමට චුදිත කාන්තාවට තිබුණු මහඟු අවස්ථාව ඇය විසින් පැහැර හැර ඇත. ඇය සාක්ෂි කූඩුවට පැමිණ සාක්ෂී දුන්නා නම් පැමිණිල්ලට ඇයවගන් හරසේ ප්රශේන නගා චෝදනාව සම්බන්දවයන් ඇයගේ ස්ථාවරය පිළිබඳව හරසේ ප්රශේන නැගීමට ඇති අවසේතාව ඇය එසේ නොකිරීවමන් එම අවසේතාව පැමිණිල්ලට මගහැරී ඇත.”
Although the learned High Court Judge has commented that he considered the dock statement in the above manner only to consider whether it creates a doubt in the evidence of the prosecution, I am unable to agree with the said comment considering the manner in which the learned High Court Judge has looked upon the dock statement. Even at page 17 of the judgment, the learned High Court Judge has commented that the appellant has avoided giving evidence and thereby failed to establish that she took the same stand when making the police statement.
It is therefore clear that the learned High Court Judge has
failed to consider the dock statement in its correct perspective as pointed out
by the learned Counsel for the appellant. I am not in a position to agree with
the contention of the learned Deputy Solicitor General (DSG) in this regard. I
am of the view that the learned High Court Judge has failed to consider whether
the dock statement by the appellant has created a reasonable doubt in the
evidence of the prosecution. He has dismissed the dock statement by applying
the wrong principles of law which cannot be considered correct.
It was the contention of the learned DSG that the out and the
in entry entered by the OIC in the Information Book clearly establishes the
fact that the appellant had been arrested in the morning and not in the manner
claimed by the appellant and her witnesses, and hence, there is no basis to
interfere with the judgment. This argument may be considered correct, if the
learned High Court Judge evaluated the evidence in that manner, rather than
brushing aside the evidence of the appellant in the manner it was
rejected.
Apart from the above, the learned High Court Judge has
rejected the evidence of the two witnesses called on behalf of the appellant on
the basis that they are partisan witnesses. It needs to be emphasized that
evidence given by a party cannot be considered partisan without a proper
evaluation of the evidence. The evidence of a witness or witnesses cannot be
rejected merely because they are relatives or close associates of an accused.
The requirement is to evaluate the evidence be it by the prosecution or the
defence in its correct perspective and to come to a finding whether the
prosecution has proved the case beyond reasonable doubt.
I am unable to agree with the learned High Court Judge’s
conclusion that the defence of the appellant was an attempt to create a
fanciful doubt and thereby rejection of the defence of the appellant without
evaluating the dock statement and the evidence to find whether it has created a
reasonable doubt as to the prosecution case.
Sisira De
Abrew, J. in the case of Don Ranasuriya
Arachchige Rohana Kithsiri Vs. The Attorney General CA 214/2008, decided on
11-02-2014 expressed the view that;
“… in evaluating evidence, a judge
should not look at the evidence of an accused person with a squint eye.”
In the Indian Supreme Court Case of D.N.
Panday Vs. State of Uttar Pradesh,
AIR 1981, Supreme Court 911 it was held thus;
“Defence witnesses are entitled to equal
treatment with those of the prosecution, and Courts ought to overcome their
traditional instinctive disbelief in defence witnesses, quit often they tell
lies but so do the prosecution witnesses.”
At this juncture, I am also reminded of the judicial decision of Martin Singho
Vs. Queen 69 CLW 21 where it was held;
“Even if the jury decline to believe
the appellant’s version, he was yet entitled to be acquitted on the charge if
his version raised in their mind a reasonable doubt as to the truth of the
prosecution case.”
In the instant appeal, I am of the view that the considered
failure by the learned High Court Judge has amounted to a denial of a fair
trial towards the appellant, and of the view that allowing the conviction and
the sentence to stand is not safe.
Accordingly, I set aside the conviction and the sentence of
the appellant. I find no basis to order a retrial either, given the facts and
the attendant circumstances.
Therefore, the appellant is acquitted of the charges preferred against
her.
Appeal allowed.
Judge of the Court of Appeal
P. Kumararatnam, J.
I agree. Judge of the Court of Appeal
Comments
Post a Comment