THLAAIOTHERAjVI, J.—Sugathadasa v. The Republic of Sri Lanka 495
Present: Thamotheram, J., Ismail, J. and Gunasekera, J.
W.A. SUGATHADASA, Accused-Appellant and THEREPUBLIC OF SRI LANKAS. C. 83/76—Walasmulla—473897—H. C. 344/73
Evidence Ordinance—Failure of the accused to give evidence—Statement from the Dock-—Misdirection by the Trial Judge—Administration of Justice Law, S. 213 (2).
The accused appellant who was charged with murder did not giveevidence in his own defence from the witness box. Instead theaccused made an unsworn statement from the dock. The trial judgein Iris charge to the jury stated that “ it is your duty to considerwhat the accused has stated in that statement from the dock andconsider whether you can believe what the accused stated in thatunsworn statement. If you believe what the accused said in hisstatement from the dock, then you have no alternative but to acquitthe accused, but you will bear in mind the submissions made by theState Counsel in his address to you on that matter which was thatin considering whether you can believe what the accused said fromthe dock when he had a right to give evidence he chose not togive evidence from the witness box on affirmation and the StateCounsel asked you to consider why it is that the accused when hehad such a right to give evidence chose not to give evidence butchose to make an unsworn statement
Held, (1) Under S. 213 (2) of the Administration of Justice hawthe prosecution may comment upon the failure of the accused togive evidence and the jury in determining whether the accused isguilty of the offence charged may draw such inferences from suchfailure as appear proper. Before the A.J.L. it was settled law thatan unsworn statement from the dock was evidence in the case. Itwas of course not of the same cogency as evidence given from thewitness box as the accused was not under an oath or affirmation andas he was not subject to cross-examination. But it has been pointedout that the A.J.L. has not shown any intention to abolish the rightof the accused to make an unsworn statement from the dock. Hencethere has been no change in the law relating to a statementfrom the dock.
(ii) The word “Evidence” in S. 213 (2) must be read asincluding a statement from the dock. There was therefore nofailure to give evidence and it was wrong for the State Counsel tohave commented on this basis. It was wrong for the judge tohave left it open to the jury to draw an inference against theaccused for his failure to get into the witness box and to giveevidence on oath or affirmation.
Appeal against conviction.
Colvin R. de Silva with Mrs. Manouri Muttetuwegama andS. J. Gunasekera for the Accused—Appellant.
P. S. Gnnasekera Senior State Counsel for the Attorney-General.
Cur. adv. vult.
March 1, 1977. Thamotheram, J.—
There were originally two accused in the case. The 2nd accuseddied before the date of trial.
After all the evidence for the prosecution was led counsel forthe State moved to amend the indictment so as to make it possi-ble for the jury to convict the 1st accused on the basis ofcommon intention as well. The defence counsel did not object.
THAMOTHERAM, J.—Sugathaclaaa v. The Republic of Sri Lanka
There were three people injured by the shooting. They wereW. A. Julius, G. L. A. Jamis and a little child who was too youngto give evidence. They were shot at, little after 8.15 p.m. on21.8.71. At that time, the only light was the light from a bottlelamp made out of a Marmite bottle. The light did not spreadbeyond the verandah. Neither Julius nor Jamis were able toidentify the person or persons who were responsible for theone act of shooting in the case— no doubt due to insufficientlight.
The witness Julius said—“ Then I suddenly heard thereport of a gun. I did not see as to who fired that shot. I donot know from which direction the gun shot came. Until thetime I was taken to hospital I did not know as to who firedthis shot. No one told me that. Karunadasa did not fell methat he saw the person who fired the shot. Nor did Davidtell me who fired the shot before I was taken to thehospital.
I heard only one gun shot that night. At the time I gotinto the car to go to hospital I did not know as to who hadfired this shotI did not hear either David or Karuna-
dasa saying “ Somebody is running away ” at the time I wasin the verandah. To my knowledge this accused has no
displeasure with meKarunadasa, David and my
wife Somawathie came to see me in hospital. Later I cameto know who fired this shot. The following day James toldme.” This witness has told the Magistrate “ Even up to thetime I gave evidence in the Magistrate’s court neither myfather-in law nor my brother-in-law nor any one else hadtold me as to who had fired the shot. I did not come to knoweither from Karunadasa or David as to who had fired thisshot. ” This passage was marked as a contradiction by thedefence.
This witness said further at the trial—“ When I was inhospital I came to know from what I was told by others asto who had shot me. I did not ask Karunadasa whether hesaw the person who shot me nor did he tell me at any timethe person who shot me. David also came to see me when Iwas in hospital. David did not tell me the person who shotme. I wanted to know as to who had shot me, as I was toldI came to know that but these two people did not tell me.”
The other injured person who gave evidence was AratchigeJamis—He said—
“ I made my statement to the police on the day after theshooting. I made that statement at about 2 O’clock on thefollowing day. Up to the time I made the statement I had
not met either Karunadasa or David in hospitalThe
doctor asked me whether I saw the person who shot me andI told him that I did not see. I did not ask David at any time
THAMOTHERAM, J.—-Sugathadasa v. The Republic of Sri Lanka 497
as to whether he saw me being shot. David told me how hecame to know the person who shot me.”
This witness was contradicted with a statement he made tothe Magistrate where he said—
“ I did not ask David nor did he tell me how he came toknow the accused had fired the shot.”
The evidence of these two witnesses—the persons who wereactually injured show, not only, that they did not see who firedbut that atleast even the next day they did not know who hadfired. We must now examine the claim of the two witnesses,David and Karunadasa, that they identified these two accusedrunning away.
David is the father of Karunadasa. These are the onlywitnesses who claimed to have seen the 1st accused run with agun in hand and the 2nd accused with some weapon, soon afterthe shooting. Both said that they had flashed the electric torcheseach had and gave chase to them until they jumped over a fenceinto the compound in which the 1st accused lived. The 1staccused and the iniured were living on adjoining lands. Boththese witnesses returned to the house where the injured wereshot at. All the evidence in the case show that the others in thehouse that night did not know who were responsible for theshooting.
David said that when he came back his wife asked him whoran and he gave the names of the accused. He was contradictedwith his evidence given before the Magistrate. He said there—
“ Having come home I did not inform the two injured orany one else as to what I saw.” (D5) This witness saidfurther at the trial—“ I did not at any time shout out fromthe compound that Gamini and Sugathadasa are running. Atno time did Karunadasa shout out saying that Gamini andSugathadasa are running. I went to see Julius when he wasin hospital. I did not tell Julius at any time that I saw thesetwo nor did I tell Jamis.”
Karunadasa said in evidence that when he returned havingchased the accused he did not tell his mother the fact that hesaw the accused because he was excited.
It is therefore clear that these witnesses who claimed to haveseen these accused running did not immediately disclose thefact to those who were in the house. –
The next question is, did they tell the police ? Strangely thecomplaint of Karunadasa made that night was not produced. Weonly know that, on Karunadasa’s statement the Inspector ofPolice went to the scene of the shooting.
498 THAMOTHERAM, J.—Sugalhadasa v. The Republic o ;Sri Lanka
The Inspector of Police said in his evidence that on a complaintmade by M. A. Karunadasa he went for inquiry to Pallattara. Hewent to the place of the alleged murder—Thereafter he orderedpolice sgt. Ratnayake to go in search of the accused. In conse-quence of an order made by him the accused was producedbefore him. We do not know what Karunadasa told the police.We cannot infer—even if it were legally permitted, that thepolice went to the house of the 1st accused because Karunadasahad mentioned his name. Karunadasa is not corroborated by hisstatement to the police in any way.
Indeed we scan the whole of the material available for theprosecution, but find' no support at all for their evidence in anyother evidence—oral or circumstancial. It is in this situationthat we must examine what was claimed to be motive for thecrime.
The evidence of motive was given by the witness AratchigeKarunadasa. According to him two days before the shootingSugathadasa struck him with a club when he was going on theroad. He did not know why the accused should have struck himas he was quite friendly with him. He made a statement to theBeliatta Police Station. Dr. de Silva quite rightly pointed outthat this really constituted a motive for the witness to implicatethe accused. There was no evidence that the accused had aimed atthe witness Karunadasa who happened to be present at thescene of shooting. We have to hold that the prosecution hadfailed to establish motive.
Dr. de Silva made three other points — he said that the learnedJudge’s reference to “ proof beyond reasonable doubt ” at thecommencement of the trial did not bring out the differencebetween proving beyond reasonable doubt and proving on abalance of probability. He further urged that the learned judgecharged on the basis that the accused’s statement from the dockcould found a defence of alibi. This was prejudicial to the accusedas his statement was a mere denial. We need not consider thesegrounds as the third ground is fatal to the conviction especiallyin view of the slender evidence on which the prosecution basedits case.
The judge said in his charge as follows : —
‘ Thereafter you will remember, the accused was informedof his right to give evidence. The accused is not bound togive evidence because there is no requirement in our lawthe accused must establish his innocence, but the accusedhas a right to give evidence and in this case the accusedchose not to give evidence. The accused instead made anunsworn statement from the dock. You will remember what
THAMOTHERAM, J.—Sugathadasa v. The Republic of Sri Lanka 499
the accused stated from, the dock in that unsworn statement.It was a short statement. The accused stated “ I knownothing about this matter. I was sleeping at home. ThePolice went to my house and brought me. I am not a manwho does things of this nature. I have six children. This isall. ”
Now you are entitled to take into consideration in arriving atyour verdict the fact that when the accused had a right to giveevidence he chose not to exercise that right bearing in mindhowever that the burden of proving the charge lies on the prose-cution whether the accused gives evidence or not.
As you know the accused made this unsworn statement fromthe dock and it is your duty to consider what the accused hasstated in that statement from the dock and consider whether youcan beheve what the accused stated in that unsworn statement.If you oelieve what the accused said in his statement from thedock, then you have no alternative but to acquit the accused, butyou will bear in mind the submissions made by the State counselin his address to you on that matter which was that in consider-ing whether you can believe what the accused said from the dockwhen he had a right to give evidence he chose not to giveevidence from the witness box on affirmation and the State-counsel asked you to consider why it is that the accused whenhe had such a right to give evidence chose not to give evidencebut chose to make an unsworn statement. The question as to•whether you believe what the accused said in his unswornstatement from the dock is entirely a matter for you to decide. ’
Under section 213 (2) of the Administration of Justice Law theprosecution may comment upon the failure of the accused to giveevidence and the jury in determing whether the accused is guiltyof the offence charged may draw such inferences from suchfailure as appear proper.
Before the A. J. L. it was settled law that an unsworn state-ment from the dock was evidence in the case. It was not of thesame cogency as evidence given from the witness box as theaccused was not under an oath or affirmation and as he was notsubject to cross-examination.
Tennekoon CJ has pointed out in a recent case—vide Republicof Sri Lanka Vs. D. K. Lionel SC 165/75 H.C. Galle 42/74 M.C.Galle 678/72—that the A. J. L. had not shown any intention toabolish the right of an accused to make an unsworn statementfrom the dock. We have to go on the basis that there has beenno change in the law relating to a statement from the dock.
WTMA LAJRATNE, J.—Ranasinghe v. de Silva
The word ‘ Evidence ’ in section 213 (2) must therefore be read,as including a statement from the dock. There was therefore nofailure to give evidence and it was wrong for the State counselto1 have commented on that basis. It was wrong for the judge tohave left it open to the jury to draw an inference against theaccused for his failure to get into the witness box and giving hisevidence on oath or affirmation.
In the circumstances of this case we think i£ was fatal to theconviction for the judge to have directed the jury as he did.
We quash the conviction and sentence passed in this case and.acquit the accused.
Ismail J.—I agree.
Gunasekera J.—I agree7
W. A. SUGATHADASA, Accused-Appellant and THE REPUBLIC OF SRILANKA