IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal made under Section 331(1) of the Code of Criminal Procedure Act No.15 of 1979 read with Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Court of Appeal Case No.

CA/HCC/ 0184/2017 Harold Rex Jansen High Court of Kalutara Case No. HC/108/2009 ACCUSED-APPELLANT vs.

The Hon. Attorney General Attorney General's Department Colombo-12 COMPLAINANT-RESPONDENT BEFORE : Sampath B. Abayakoon, J.

P. Kumararatnam, J.

COUNSEL : Shanaka Ranasinghe, PC with Niroshana Mihindukulasuriya for the Appellant.

Sudharshana De Silva, DSG for the Respondent.

ARGUED ON : 12/07/2023, 13/07/2023, 25/07/2023, 02/08/2023 and 21/09/2023.

DECIDED ON : 31/01/2024 *******************

JUDGMENT

P. Kumararatnam, J.

The above-named Appellant was indicted by the Attorney General at the High Court of Kalutara as follows:

1. On or before 23/06/2008 for kidnapping Angampodi Yuvana Yvonne de Silva, an under-aged girl from the legal custody of Walimuni Shiroma Abeysekera and thereby committing an offence punishable under Section 357 of the Penal Code.

2. In the course of the same transaction, committing grave sexual abuse by use of some part of the body of aforesaid Angampodi Yuvana Yvonne de Silva by placing his penis on her chest and ejaculating semen an offence punishable under Section 365B (2) (b) of the Penal Code as amended Act No.22 of 0995.

The prosecution had called 31 witnesses in support of the case. The Appellant had made a dock statement when the defence was called by the Learned High Court Judge.

After the trial, the Appellant was convicted as charged and was sentenced to 07 years of rigorous imprisonment for the 1^st Count and 12 years rigorous imprisonment for the 2^nd Cout with a fine of Rs.20000/-, in default of which 01-year rigorous imprisonment was imposed. In addition, Rs.100,000.00/-

was imposed as compensation payable to the victim with a default sentence of 02 years rigorous imprisonment.

Being aggrieved by the aforesaid conviction and the sentence, the Appellant preferred this appeal to this court.

The Appellant was on bail pending appeal and was present in Court during all dates of the argument.

On behalf of the Appellant the following Grounds of Appeal are raised.

1. Did the Learned High Court Judge fail to consider that the prosecution had failed to prove the ingredients of the charges beyond reasonable doubt.

2. Did the Learned High Court Judge fail to consider that the evidence of the victim was inconsistent and contradictory therefore, it is unsafe to act upon such evidence.

3. The Learned Trial Judge has failed to consider the fact that the video recording of the victim was not corroborated in material particulars by evidence from an independent source as required by Section 163A (5)

of the Evidence (Special Provisions) Act No. 32 of 1999.

4. The Learned Trial Judge erred in law by concluding upon considering the evidence -in-chief of the victim, that it is proved beyond reasonable doubt that the Accused committed a sexual act.

5. Did the Learned High Court Judge erred in law by concluding that the evidence given by the victim at the video conference proved that the Accused committed a sexual act before analysing of the case.

6. The Learned High Court Judge erred by concluding that the evidence of the probation officer had corroborated the evidence of the victim.

The Facts of this case albeit briefly are as follows.

In this case, the prosecution had led the video evidence of a preliminary interview of the prosecutrix conducted and video recorded by the Child Protection Authority at the time of the investigation was played before the Learned Trial Judge in terms of Section 163 (A) of the Evidence (Special Provisions) Act No 32 of 1999. Prior to leading video evidence of the prosecution, the prosecution had led evidence of official witnesses who had taken part in the process of recording of video evidence to establish that the recording