I I, IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA ACCUSED APPELLANT. Accused Appellant. Case No.

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1 N THE COURT OF APPEAL OF THE DEMOCRATC SOCALST REPUBLC OF SR LANKA n the matter of an Appeal made under secton 331 of the Code of Crmnal Procedure Act No. 15 of 1979 beng an appeal aganst the convcton and sentence mposed by the Hgh Court of Anuradhapura. Rathnayaka Ralalage Chamnda Rathnayaka ACCUSED APPELLANT Case No. CA 89 of 2017 HC (Anuradhapura) Case No. 161/2012 Vs. The Attorney General, Attorney General's Department, Colombo 12. RESPONDENT BEFORE COUNSEL Deepal Wjesundera J. Achala Wengappul J. Dr. Ranjt Fernando for the Accused Appellant Pryantha Nawana, P.c., A.S.G. wth Ms. Randma Fernando S.c. for the Attorney General,, ~ 1 1

2 ARGUED ON DECDED ON 15 th March th March 2018 Achala Wengappul J. The accused appellant was ndcted for commttng offences under Sectons 354 and 364(2}{e) of the Penal Code as amended, on one Godamn Vthanage Pume Shashka/a, an under aged person. After tral, he was convcted on both counts and was mposed sentences of 3 years and 12 years of rgorous mprsonment respectvely on the sad two counts to run concurrently. He was also ordered to pay Rs. 250, as compensaton wth a default sentence of one year R. sentence. The accused appellant has preferred ths appeal aganst hs convcton and Learned Counsel for the accused appellant, at the hearng of hs appeal, submtted that;. the tral Court was n error when t faled to consder the evdence of the prosecutrx as nfrm and unrelable,. the tral Court was n error when t consdered the medcal evdence as evdence of corroboraton. t s contended by the accused appellant, n support of hs frst ground of appeal, that the prosecutrx complaned of the alleged act only after a three year delay and she has led on oath as her clam of complanng to her aunt, soon after the ncdent, s negated by the relevant wtness. t s also contended that the medcal evdence dd 2

3 not support the verson of events as presented by the prosecutrx and, n addton, when her conduct s taken nto account n the lght of these factors made t unrelable. Learned Presdent's Counsel for the Respondent, ponted out that the tral Court has opted to beleve Shashkala's clam of complanng to her aunt, soon after the ncdent. He contended that owng to the nature of the relatonshp of her aunt to the accused appellant, t s probable that her aunt was reluctant to complan the ncdent to the authortes. He further added that Shashkala has made use of the opportunty to lodge a formal complant to the authortes, when such opportunty presented tself for the frst tme after three years snce the ncdent, when she was accompaned to the Polce by her parents. The case presented by the prosecuton was that Shashkala was related to the accused appellant and was asked by hm to delver a rado set to a nearby house, when she was on her way to a nearby boutque. The house was not occuped by anyone, but Shashkala has seen the accused appellant n that house pror to ths ncdent. She compled wth the request of the accused appellant. When she entered the house, the accused appellant, who was already n the house has grabbed her and has had sexual ntercourse wth her forcbly, after pushng her on to a sofa. Upon returnng home, Shashkala dsclosed the ncdent to her aunt, wth whom she lved for some tme, as her parents had a troubled relatonshp. Her aunt Pryanth, has then told Shashkala that she would nform her mother and further nstructed her not to dsclose t to anyone else. However, her aunt Pryanth, n her evdence has dened ths clam and sad that she came to know about the ncdent only at the Polce Staton, when Shashkala was brought to t by her parents, when she attempted to run away from ther home that very mornng. Learned Hgh Court Judge, havng accepted the sequence of events as narrated by Shashkala as credble and truthful evdence, opted not to rely on the denal of Pryanth on the bass that t s apparent that she has attempted to sheld the accused appellant from ths allegaton. 3

4 The evdence led before the tral Court by the prosecuton revealed that Shashkala s Pryanthts 5 sster's daughter whle the accused appellant s her husband's sster's son. The accused appellant too was under her care at some pont of tme as hs mother, her sster, has decded to termnate her marrage wth the father of the accused appellant. Shashkala's father, who usually under the nfluence of alcohol, would beat her severely even f someone were to follow her n the vllage. Her parents had a troubled relatonshp and as already noted was under the care of her aunt, at the tme of the ncdent. t s also revealed that Shashkala s a stubborn chld and would act on her own aganst the advce of elders, even though she was yet a mnor. There was also evdence led by the prosecuton, that Shashkala's grandfather has seen her and the accused appellant n a compromsng poston. t s not clear whether ths ncdent took place before or after the complaned act of sexual ntercourse. t could well be that t happened after the ncdent of alleged rape as Shashkala has admtted n her evdence that she was n a relatonshp wth the accused appellant for some tme, subsequent to the complaned act. Although ths ncdent was seen by her grandfather, no further acton was pursued as there was no "damage". These tems of evdence are a clear ndcaton of the atttude of the elders, n relaton to the complant made by Shashkala. Her mother, n her evdence also related an ncdent where a Polce constable has made an attempt to ravsh Shashkala and when she complaned t to Polce she was chased out wth threatenng utterances of obscentes. n these crcumstances, t s reasonable to nfer that all these factors could well have nfluenced the concerned, t t! partes to adopt the approach that they eventually dd, to the complant of Shashkala, n relaton to ths ncdent. 4

5 Shashkala was born on 14th February 1996 and she was about 12 years and 7 months of age when the complaned ncdent took place. She lved n Tract No. 4 of Rajanganaya of Tambuttegama Polce area and the place of the ncdent, as shown by Shashkala~ s located about 17 km from the Polce Staton. When these factors are consdered aganst the clam of Shashkala that she dd complan of the ncdent to her aunt soon after but there was no further acton by her aunt, am nclned to agree wth the submssons of the learned Presdent's Counsel for the Respondent that although three years have elapsed when the ncdent was formally reported to Polce, the long delay s explaned and justfed. t s unreasonable to expect a young grl, who was brought up n a vllage settng, to be bold enough to go drectly to the Polce, when she reported her horrfyng experence to her elder who faled to take any acton owng to her close relatonshp f, to the accused appellant. The partes lved n a v "age communty and her aunt's reluctance to ntate offcal nvestgaton could be understood as t s a probable and natural reacton owng to consderatons of socetal repercussons. Pryanth has treated Shashkala wth kndness by provdng her a refuge when she could no longer stay wth her parents. t s probable that Pryanth opted to safeguard futures of both Shashkala and accused appellant by smply allowng the ncdent to forget over the passage of tme. Therefore, the tral Court's fndng on the relablty of Pryanth's denal of nformng the ncdent by Shashkala could not be faulted. n CA 115/2006 (Court of Appeal mnutes of ), Ranjth Slva J quoted Samarakoon v Republc 0/ Sr Lanka (2004) 2 Sr L.R. 209 whch n turn cted and Pauln de Croose v The Queen 71 NLR 169, where t was held by Fernando J that; "Just because the statement of a wtness s belated the Court s not enttled to reject such statement... f the reasons for the delay adduced by the wtness are justfable and probable the tral judge s enttled to act on the evdence of the wtness who had made a belated statement. ",! f! 5

6 Vewed n ths context, t s my consdered vew that there s no delay n reportng the ncdent by Shashkala to another as she dd report t to her aunt soon after. The delay s therefore confned to her makng a formal complant. n vew of the foregong, t s further held that her delay n makng a formal complant to Polce s suffcently explaned and justfed. Whether the prosecutrx has told her aunt about the act of the accused appellant soon after the ncdent s clearly a queston of fact. t s clear that the learned tral Judge, havng observed the demeanour and deportment of the prosecutrx, has opted to accept her evdence as truthful and relable, after evaluatng t wth the already establshed tests n assessng testmonal trustworthness of a wtness. ; 1 1 ~ ~ l J A queston of fact or a prmary fact; whch has been decded by a tral Court, whch had the prceless advantage of observng the wtness, should not ordnarly be dsturbed by an appellate Court, unless t could be termed as a perverse fndng. n the judgment of Fradd v Brown & Co. Ltd., 20 NLR 282, t was held; "... mmense mportance attaches, not only to the demeanour of the wtnesses, but also n the course of the tral and the general mpresson left on the mnd of the Judge present, who saw and noted everythng that took place n regard to what was sad by one or other wtness. t s rare that a decson of a Judge so express, so explct, upon a pont of fact purely, s over-ruled by a Court of Appeal, because Courts of Appeal recognze the prceless advantage whch a Judge of frst nstance has n matters of that knd, as contrasted wth any Judge of a Court of Appeal, who can only learn from paper or from narratve of those who were present. t s very rare that, n questons of veracty so drect and so specfc as these, a Court of Appeal wll over-rule a Judge of frst nstance. / 6

7 The judgment of De Slva and Others v Senevratne and Another (1981) 2 Sr L.R. 7 s also an nstance where the Court of Appeal consdered the queston as to the crcumstances under whch an appellate Court should nterfere wth fndngs of facts made by a tral Court. After referrng to a long lne of authortes on the pont, t held that; "On an examnaton of the prncples lad down by the authortes referred to above, t seems to me: that, where the tral judge's fndngs on questons of fact are based upon the credblty of wtnesses, on the footng of the tral judge's percepton of such evdence, then such fndngs are enttled to great weght and the utmost consderaton, and wll be reversed only f t appears to the appellate Court that the tral judge has faled to make full use of the "prceless advantage" gven to hm of seeng and lstenng to the wtnesses gvng vva voce evdence, and the appellate Court s convnced by the planest consderaton that t would be justfed n dong so that, where the fndngs of fact are based upon the tral judge's evaluaton of facts, the appellate Court s then n as good a poston as the tral judge to evaluate such facts, and no sanctty attaches to such fndngs of fact of the tral judge: that, f on ether of these grounds, t appears to the appellate Court that such fndngs of fact should be reversed, then the appellate Court "ought l J ~ ( }! f, r ;, ( f! not to shrnk from that task" Perusal of the proceedngs reveal that t was the same tral Judge who has recorded the evdence of the prosecutrx and delvered the judgment by whch the accused appellant was found gulty. As the ssue of credblty of the prosecutrx has been decded n her favour, her clam of complanng to aunt too was also accepted by the tral Court as a truthful and relable tem of evdence. n the lght of the above consderatons, am unable to term ths fndng of fact by the tral Court as a perverse fndng. l } 7

8 The other complant of the accused appellant that the tral Court was n error when t consdered the medcal evdence as evdence of corroboraton s apparently based on the learned Hgh Court Judge's observaton n hs judgment that Shashkala~s evdence s '1urther confrmed/corroborated N by the medcal evdence. Ths observaton s made by the tral Court when t referred to the evdence of the medcal wtness, who sad that he saw an old healed tear n the 6 o'clock poston n the hymen, when he examned the prosecutrx. The tral Court has utlsed ths tem of evdence supportng the prosecuton clam that there was vagnal penetraton at some pont of tme. Learned Counsel for the accused appellant submtted that when the prosecutrx has admtted havng had sexual relatons subsequent to the ncdent, the fact that there was a tear n the hymen does not add credence to her clam. More mportantly, corroboraton should be by an tem of evdence that connects the accused appellant to the alleged count of rape. Snce the medcal evdence could not be consdered as such n these crcumstances, the learned tral Judge's relance on ths tem of evdence as "corroboraton" s contrary to applcable law. n Rajaratnam v Republc 0/ Sr Lanka 79(1) NLR 73, the then Supreme Court quoted the followng passage from the judgment of Kng v Athukorale 50 NLR 256, reproducng t wth the observaton that "The law n regard to the need of corroboraton n rape cases s well settled. N "The corroboraton whch should be looked for n cases of ths knd s some ndependent testmony whch affects the accused by connectng or tendng to connect hm wth the crme, and t s settled law that although the partculars of a complant made by a prosecutrx shortly after the alleged offence may be gven aganst the person ' as evdence of the consstency of her conduct wth her evdence gven at the tral,' such complant' cannot be regarded as corroboraton n the proper sense n whch that word s understood n cases of rape and t s msdrecton to refer to t as such' such 8

9 evdence s not corroboraton because t lacks the essental qualty of comng from an ndependent quarter. " As noted earler on n ths judgment, the tral Court utlsed the medcal evdence to arrve at a fndng that t s not nconsstent wth the prosecuton verson. t clearly found that the sequence of events, as narrated by the prosecutrx n her evdence, s consstent wth the hstory gven to the medcal offcer at the tme of her examnaton. These fndngs are n lne wth the law as lad down n the judgements of Kng v Athukorale (bd) and Perera vag (2012) 1 Sr L.R. 69. n addton, the tral Court has also utlsed the observatons made by the medcal wtness after examnng gentala of the prosecutrx as t was observed that she had an old hymeneal tear at 6 o'clock poston as an tem of evdence whch corroborated the asserton of penle penetraton. Learned tral Judge was mndful of the evdentary value of each of these tems of evdence. He correctly used the short hstory gven by the prosecutrx, only to evaluate the consstency of her evdence and not as an tem of corroboraton. He then used the medcal evdence of hymeneal tear as an tem of evdence whch tends to corroborate her evdence. n ths nstance an under aged unmarred grl clamed penle penetraton of her vagna. She also clamed she felt pan n her lower abdomen and also felt blood from her vagna. The medcal evdence could obvously provde corroboraton for such a clam, as there was evdence of hymeneal njury and t came from an ndependent source. am n agreement wth the learned tral judge. n Perera v AG (bd) there was evdence that the accused and the rape vctm had gonorrhoea. Justfyng an nference drawn that she may have contracted the venereal decease from the accused hmselt Court of Appeal has held that "... Ths evdence f not corroboratve should at least show consstency of the evdence of the vctm.j/ n these crcumstances, t could reasonably be concluded that the appeal of the accused appellant s wthout mert. 9

10 ! 1 r f! The accused appellant, n hs submssons, dd not address ths Court on the sentences mposed on hm. am of the vew that the sentences mposed on the accused appel/ant are legal/y correct, reasonable and approprate under the crcumstances. Therefore, the convcton of the accused appel/ant on the two counts and the sentences mposed on hm upon hs convcton of them are affrmed by ths Court. Accordngly the appeal of the accused appellant s dsmssed. Appeal dsmssed. r t 1 J Deepal Wjesundera J. JUDGE OF THE COURT OF APPEAL t l agree., r JUDGE OF THE COURT OF APPEAL J,e 1 10! t