Pradeep Hettiarachchi. J.

Judgment

1. This is an appeal against the judgment and sentence of the learned High Court Judge of Balapitiya, by which the accused-appellant (hereinafter referred to as the “Appellant”) was convicted and sentenced for offences punishable under Sections 354 and 364(2)(e) read with Section 364(2) of the Penal Code.

2. In the petition of appeal there were ten grounds of appeal but during the argument, the appellant urged only five grounds namely:

a. The prosecution has not proved the charges of rape and kidnapping from lawful guardianship beyond reasonable doubt;

b. The prosecution has failed to explain the delay in making the complaint and the vagueness of the period in the indictment;

c. The main prosecution witnesses’ testimonies consist of inter se and per se contradictions and therefore they have failed the test of credibility’

d. The learned High Court Judge has not considered the accused’s dock statement; and, e. The learned trial Judge has rejected the defense evidence on unreasonable grounds and not given the benefit of the doubt to the accused.

Background to the appeal:

3. The appellant is married to the prosecutrix’s sister. According to the prosecutrix’s testimony, the appellant allegedly raped her on three separate occasions. The first incident is said to have occurred in a cinnamon field near the house where the prosecutrix resided. The second incident allegedly took place at the house of the prosecutrix’s sister. The third incident is reported to have occurred when the prosecutrix was living with another person named Chamith, with whom she had eloped.

4. In view of the arguments advanced by the appellant, one of the primary questions to be determined in the present appeal is whether the delay in making a complaint affects the credibility of the prosecution’s case. Admittedly, the prosecutrix first lodged a complaint in 2011, almost five years after the alleged first incident of rape. According to the indictment, all three acts of rape were alleged to have occurred between January 2006 and December 2006. Nevertheless, the learned High Court Judge convicted the appellant on only the first two counts, holding that the remaining charges in the indictment fell outside the period specified therein.

5. It is trite law that a delayed police complaint does not automatically render the evidence unreliable, but it is a crucial factor for courts to consider, as the credibility of the evidence is assessed by examining the reasons for the delay. If the delay is reasonably explained by factors like fear, embarrassment, or a lack of understanding, the court may still accept the testimony. Conversely, unexplained delays can weaken the complainant's credibility and raise doubts about the accuracy of their account.

6. It this connection I would like to consider the judgment in the case of Sumanasena vs. Attorney General [1999] 3 Sri LR. 137, wherein His Lordship Justice Jayasuriya stated thus:

Just because the witness is a belated witness Court ought not to reject his testimony on that score alone, Court must inquire into the reason for the delay and if the reason for the delay is plausible and justifiable the court could act on the belated witness.”

7. On a consideration of the principles laid down in the above judicial decision, I hold that the evidence of the witness should not be rejected on the ground of delay itself if the delay has been reasonably explained. Thus, in the present case, I must consider whether the delay has been reasonably explained.

8. The delay in making a complaint in cases involving offences against a child must be considered differently. In the present case, the victim remained silent for almost five years, without informing anyone about the rape or sexual harassment allegedly committed by her sister’s husband.

9. A child’s reason for silence has been explained in The Crown Court Compendium Part I (published in May 2016 - page 10-22), as follows:

“Experience has shown that children may not speak o