IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an appeal in terms of Section 15(b) of the Judicature Act No. 02 of 1978 read with Section 331 of the Code of Criminal Procedure Act No. 15 of 1979.

The Democratic Socialist Republic of Sri Lanka.

Court of Appeal Case No.

CA/HCC/0061/2018 Complainant High Court of Avissawella Vs.

Case No. HC/160/2008 Hettiarachchige Sunil Hettiarachchi.

Accused AND NOW BETWEEN Hon. Attorney – General, Attorney General’s Department, Colombo 12.

Complainant-Appellant Vs.

Hettiarachchige Sunil Hettiarachchi.

Accused-Respondent BEFORE : MENAKA WIJESUNDERA, J WICKUM A. KALUARACHCHI, J COUNSEL : Maheshika Silva, DSG for the Complainant-Appellant.

Sahan Kulatunga for the Accused-Respondent.

ARGUED ON : 25.06.2024 DECIDED ON : 24.07.2024 WICKUM A. KALUARACHCHI, J.

This appeal has been preferred by the Hon. Attorney General to set aside the sentence imposed against the accused-respondent by the order of the learned High Court Judge of Avissawella dated 09.02.2018 and substitute a lawful and an adequate sentence according to law.

The accused-respondent was indicted in the High Court on two charges of rape against one Achini Almeda who is the daughter of the accused’s sister and was below 16 years of age. The offence relating to the two charges is punishable under Section 364(3) of the Penal Code as amended by the Penal Code (Amendment) Act No. 22 of 1995. After trial, the accused-respondent was convicted for both counts. The learned High Court Judge imposed eight years of rigorous imprisonment and a fine of Rs. 7500/- with a default sentence of one-year simple imprisonment on each count and ordered the sentences of imprisonments to run concurrently. In addition, a compensation of Rs. 50,000/- was ordered and if defaulted to pay the said amount, the amount was ordered to be recovered as a fine with a default sentence of two years of rigorous imprisonment.

The accused has not appealed against the conviction or the sentence. The Hon. Attorney General, being aggrieved by the said sentence, preferred this appeal against the sentence. Prior to the hearing of the appeal, both parties filed written submissions. At the hearing, the learned Deputy Solicitor General (DSG) for the appellant and the learned Counsel for the accused-respondent made oral submissions.

The main contention of the learned DSG was that the sentence is illegal because the minimum mandatory sentence prescribed by the Section 364(3) of the Penal Code is 15 years. The learned DSG contended that the victim was 11 years of age at the time of the incident and the accused was 33 years at that time. The learned DSG stated further that the sexual intercourse had taken place without the consent of the prosecutrix and she was raped by her uncle with whom she was living. Therefore, the learned DSG submitted that there were only aggravating factors in this case and when considering the gravity of the offence, the learned High Court Judge had no reason to disregard the minimum mandatory sentence of 15 years.

The learned Counsel for the accused-respondent contended that the learned High Court Judge has not just disregarded the minimum mandatory sentence. He submitted that the learned Judge considered the mitigatory factors and aggravating factors correctly in making the sentencing order. The learned Counsel pointed out that there are Judgments in which it was held that the minimum mandatory sentence is in conflict with some articles of the Constitution. He contended further that the accused-appellant could not understand the gravity of the offence because he was young at the time of committing the offence, and thus, the eight years of imprisonment is reasonable.

When perusing the sentencing order dated 09.02.2018, the learned High Court Judge considered the offence as serious because she stated that when the victim was under the protection of her uncle, he committed this offence. However, the learned Judge stated in her order that t