LNP – Woman serving life imprisonment found innocent: CA observes trial judge misdirected himself of the facts

After spending more than two years in prison, a woman sentenced to life imprisonment for drug trafficking was acquitted by the Court of Appeal, observing that the High Court judge has misdirected himself of the facts during the trial.

While ordering to acquit the accused from all charges, the Court of Appeal Justice Priyantha Fernando and Justice Sampath Abayakoon held that Trial Judge has failed to give due consideration to the defence evidence and has rejected the defence evidence on the wrong premise.

The Colombo High Court had sentenced Vidanapathiranage Jayanthi to life imprisonment on January 18, 2019. She had been convicted for trafficking and having in possession of 2.78 grams of heroin in 2015 in terms of Sections 54A(b) and 54A(d) of the Poisons Opium and Dangerous Drugs Ordinance respectively.

Upon conviction on both counts after trial, the Colombo High Court sentenced the accused for life imprisonment for both counts. Being aggrieved by the said conviction and sentence, the accused had filed an appeal in Court of appeal on the ground that trial judge had failed to consider the improbability of the prosecution story, refuse of evidence unreasonably and trial judge has shifted the burden of proof on the defence.

The accused has given clear evidence without any confusion as to the sequence of events that took place that led to her arrest. The Accused’s evidence is well substantiated by the evidence of a defence witness named Kusuma and the daughter. Position of the defence right throughout had been that the accused who was in her house was arrested and the heroin was introduced, Justice Priyantha Fernando said.

Meanwhile, the Court of Appeal observed that a witness cannot be expected to give the exact time in minutes or seconds when giving evidence years after the incident. ‘Lay witnesses do not keep notes as police officers who conduct raids. In that event, the evidence of the police witness number one who has kept his notes is more improbable than that of the accused’s daughter at the time,’ Justice Fernando said. The prosecution maintained that the daughter of the accused had made a contradictory statement regarding her mother’s arrest when explaining about the time period.

The High Court Judge has clearly misdirected himself when he expected the prosecution witness Fonseka to be called by the defence, when in fact it was the evidence for the prosecution that Fonseka participated in the raid, Justice Fernando further observed.

Referring to a judgment delivered by Indian Supreme Court (D.N.Pandey V. State of Uttarapradesh AIR 1981SC 911), the Court of Appeal maintatined that Defence witnesses are entitled to equal treatment with those of the prosecution.

Counsel Neranjan Jayasinghe with Anusha Rathnayake appeared for the Accused. Senior State Counsel Riyaz Bari appeared for the Attorney General.