17 August 2021 12:00 am Views - 85
By Lakmal Sooriyagoda
The Court of Appeal in its recent judgment held that an accused who made a confession to a police officer would be inadmissible and no confession made to a police officer should be proved as against a person accused of any offence.
The Court of Appeal made these remarks while delivering a judgment into an appeal filed by four accused-appellants who were indicted in Ampara High Court for having committed three offences including the gang rape on a woman in Dehiattakandiya.
After the trial by jury, all accused-appellants were found guilty by the verdict of the jury and the first accused- appellant was sentenced to 35 years of rigorous imprisonment and three others were sentenced to 27 years imprisonment.
The Court of Appeal two-judge-bench comprising Justice R. Gurusinghe and Justice Nissanka Bandula Karunarathne observed that marking contradictions by prosecution to support that the accused made a confession to a police officer would be inadmissible. The Court of Appeal further held that these contradictions cannot be considered as substantive evidence.
“We are of the opinion that in the guise of marking contradictions, wholly inadmissible evidence was improperly admitted violating the provisions of section 25 of the Evidence Ordinance. It may have influenced the jury to accept the evidence of the prosecutrix and witness number two and reject the accused-appellants’ evidence. The Trial Judge should have excluded these contradictions as they amounted to a confession,” Justice R. Gurusinghe held.
It was revealed in Court that the prosecutrix (female victim) had made a complaint to the police five months after the incident. The explanation for the delay was that the second witness had agreed to marry her, so she did not make a complaint. About five months later the second witness said that he was not in a position to marry her. The court held that this was the reason to complain. The Court of Appeal observed that the Trial Judge should have directed the jury whether they could accept the explanation for the delay given by the prosecutrix as plausible.
“No evidence had been led to show that the second, third and fourth accused had abetted or had a common intention with the first accused to do the alleged rape. They were nowhere near the place where the alleged rape was committed,” Justice Gurusinghe observed.
Accordingly, the Court of Appeal ordered to set aside the conviction imposed against four accused-appellants and they were acquitted of all charges.
President’s Counsel Anil Silva appeared for the accused-appellants. Deputy Solicitor General Dilan Ratnayake appeared for the Attorney General.