IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.

In the matter of an Appeal under and in terms of Section 331 of the Criminal Procedure Act No. 15 of 1979.

The Democratic Socialist Republic of Sri Lanka Complainant Court of Appeal No: Vs.

CA/HCC/61/2021 Wanigathungage Nihal Shantha High Court of Hambanthota Accused HC/50/2011 AND NOW Wanigathungage Nihal Shantha Accused – Appellant Vs.

Hon. Attorney General, Attorney General Department, Colombo 12.

Complainant- Respondent Before : MenakaWijesundera J.

Wickum A. Kaluarachchi J.

Counsel : Saliya Pieris, PC with Geeth, AAL and Anushankan for the Accused-Appellant.

Janaka Bandara, DSG for the State.

Argued on : 18.03.2024 Decided on : 03.04.2024 MENAKA WIJESUNDERA J.

The instant appeal has been filed to set aside the judgment dated 9.2.2021 of the High Court of Hambantota.

The accused appellant has been indicted with others unknown to the prosecution for two counts of gang rape and robbery under the provisions of the Penal code to have been committed on the 5.9.2002.

The prosecution led the evidence of the two victims and their mother and the police and the doctor who had examined the victims. The prosecution had also relied on the evidence of the identification parade which had been held 10 months after the incident but the appellant had been identified at the parade.

The learned trial judge upon the conclusion of the trial had convicted the appellant for the charges of gang rape and robbery.

The appellant being aggrieved by the said conviction and sentence had lodged the instant appeal.

The grounds of appeal raised by the counsel for the appellant were as follows, 1)Identity of the appellant was not being proved beyond a reasonable doubt, 2)the trial judge wrongly considering the omissions, 3)the trial judge failing to consider the case for the defense, 4)the trial judge wrongly considering the Ellenborough dictum and the Lucas principle.

According to the evidence of PW3 who was the mother of the two victims had said in Court that on the day of the incident in the night when all of them had gone to sleep, a gang of about six persons had entered their house and had robbed and raped her two girls. She had further said that the entire incident had taken place for about two hours and the gang had been covering their faces.

But at one point she had said that one person was identified because his face was not covered, but to police she had said that their faces were covered with black cloths.

Thereafter she had said that the appellant was identified because he had come in the afternoon to collect a beetle leaf but in evidence, she had said that she had not seen him before.

Furthermore, in evidence she had said that she identified the appellant with the aid of a torch but that too she had not told police and an omission had been brought to the notice of Court.

She had also said that they had occupied a small Cadjan house on Pattie mahattayas land and his son was a frequent visitor to their house. She had lodged the 1^st complaint two days after the incident and she had said that the victims had been very week and that they were taken to the hospital instead, of going to the Police.

But this Court observes that her evidence had not been very consistent and the form of identification of the appellant appears to be very questionable.

Thereafter, the prosecution had led the evidence of victim number 2 and witness number 2 namely Lakmali who had corroborated the mother but she had very specifically said that in the crowd who came Pattie Mahattayas son namely Udayakumara had been present and that he dragged her out of the house and raped her.

She had said that at the time they entered the house she had identified the appellant and the Pattie mahattaya’s son with the aid of the torch light held by her brother. But apparently, she had not said the same to the police. (165 of the appeal brief)

She had further said that she identified the appellant when his face mask fell off but the same, she