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. Desakara Mudiyanselage Dissanayake CA/HCC/ 0046/2020 alias Gamini alias Podde High Court of Ratnapura Case No. HCR/235/2017 ACCUSED-APPELLANT Vs.

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

P.Kumararatnam,J.

COUNSEL : Sanjaya Senevirathne for the Appellant.

Jayalakshi De Silva, SSC for the Respondent.

ARGUED ON : 15/02/2024 DECIDED ON : 20/06/2024 *******************

JUDGMENT

P. Kumararatnam, J.

The above-named Appellant was indicted by the Attorney General under Section 365 B (2) (b) of the Penal Code as amended by Act No. 22 of 1995 for committing the offence of Grave Sexual Abuse on Kankanam Thotapalle Palihawadana Ralalage Prarthana Sithumini on 03/03/2009.

The trial commenced on 07/01/2019. After leading all necessary witnesses and marking productions, the prosecution had closed the case. The learned High Court Judge had called for the defence and the Appellant had made statement from the dock, called his brother as a defence witness, and closed his case.

The learned High Court Judge after considering the evidence presented by both parties before him, convicted the Appellant as charged, and sentenced the Appellant to 14 years of rigorous imprisonment and imposed a fine of Rs.25000/- subject to a default sentence of 06 months simple imprisonment. In addition, a compensation of Rs.200000/- was ordered with a default sentence of 01-year rigorous imprisonment.

During the argument the Appellant was connected via Zoom platform from prison.

The Facts of this case albeit briefly are as follows.

According to PW1 - the victim of this case, she had been about 07 years old when she faced this bitter ordeal. When she gave evidence, she was 16 years old and was schooling. The victim was staying at her house under the guardianship her mother as her farther was employed in Colombo.

On the day of the incident, when she was playing with another girl, the Appellant had called the victim, shown a child’s picture in his mobile and had taken the victim to nearby abandoned house. He made her lie on the floor, removed her undergarment, positioned his genitalia between her legs near her vagina, and committed severe sexual abuse against her.

Although she resisted, she could not escape from the captivity of the Appellant. At that time the Appellant had close her mouth preventing cry for help. After committing the sexual act, the Appellant had left the place leaving the child. She had felt pain around her vagina as a result. Immediately after the incident she had informed the incident to her mother and her mother informed the same to her father over the phone. Her father had assaulted the Appellant with pole and lodged a complaint in the police on 04.03.2009 on the very next day of the incident. The prosecutrix had given evidence after about 10 years of the incident.

PW2, Karunatilake, her father and PW3 Nilanthi her mother also gave evidence.

The JMO who had examined the victim had opined that the examination findings of genital area exclude rape. But he had not excluded sexual abuse. After the closure of the prosecution’s case, the defence was called, and the Appellant had given statement from the dock, called his brother as a defence witness and closed his case.

The following Grounds of Appeal were raised on behalf of the Appellant:

1. Creditworthiness and trustworthiness of the prosecution witnesses are questionable

2. The evidence of the victim has not been corroborated with other evidence.

3. Contradictions, omissions, and inconsistencies on the evidence of medical officer is not considered by the Learned High Court Judge.

4. The prosecution has failed to prove the case beyond reasonable doubts.

In