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 Code of Criminal Procedure Act No. 15 of 1979.

Court of Appeal No: Democratic Socialist Republic of Sri Lanka CA/HCC/0052/2022 COMPLAINANT Vs.

High Court of Batticaloa Mohammad Abdul Cader Mohammad Case No: HC 3229/2018 Siththar ACCUSED AND NOW BETWEEN Mohammad Abdul Cader Mohammad Siththar ACCUSED-APPELLANT Vs.

The Hon. Attorney General, Attorney General’s Department, Colombo 12.

COMPLAINANT-RESPONDENT Before : Sampath B. Abayakoon, J.

: P. Kumararatnam, J.

Counsel : Nizam Kariapper, P.C. with M.I.M. Iynullah and A. Ilhan Kariapper and Chathurika Perera for the Accused-Appellant : Azard Navavi, S.D.S.G for the Respondent Argued on : 06-06-2024 Written Submissions : - (Not filed by the Accused-Appellant)

: 30-01-2024 (By the Respondent)

Decided on : 26-08-2024 Sampath B. Abayakoon, J.

This is an appeal preferred by the accused-appellant (hereinafter referred to as the appellant) on the basis of being aggrieved of his conviction and the sentence by the learned High Court Judge of Batticaloa.

The appellant was indicted before the High Court of Batticaloa for committing the following offences.

1. That he committed the offence of kidnapping a minor male child on or about 04-09-2009, at Katthankudi within the jurisdiction of the High Court of Batticaloa, and thereby committed an offence punishable in terms of section 354 of the Penal Code.

2. At the same time and at the same transaction, he thrusted his male organ into the mouth of the said minor male child, and thereby committed the offence of grave sexual abuse punishable in terms of section 365B(2)(b) of the Penal Code as amended by the Penal Code (Amendment) Act No. 22 of 1995 and 20 of 1998.

After trial, the learned High Court Judge of Batticaloa found the appellant guilty as charged of his judgment dated 01-11-2021.

After having heard the mitigatory as well as the aggravating circumstances relating to the case, the learned High Court Judge sentenced the appellant on

03-11-2021 in the following manner.

On count 1- to a period of 1-year rigorous imprisonment, and in addition, to a fine of Rs. 1,000/-. In default of paying the fine, to a 1-month simple imprisonment period. The 1-year rigorous imprisonment period was suspended for a period of 5 years.

On count 2- to a rigorous imprisonment period of 7 years, and a fine of Rs. 1,000/-. In default of paying the fine, to a 1-month simple imprisonment period.

In addition to the above, the appellant was ordered to pay compensation of Rs. 20,000/- to the victim boy, with a 6 months simple imprisonment period in default.

The learned High Court Judge has also directed that the appellant should pay

20% of the fine imposed, to the Fund of The Protection of Witnesses.

Facts in brief PW-01, the victim child of this incident was a 17-year-old youth when he gave evidence before the High Court on 07-11-2018. In his evidence, he has stated that the incident occurred in the year 2009, while he was studying in grade 4 at his school. On the day of the incident, the victim child who was 9 years old at that time, has gone to the nearby mosque for his daily prayers. While he was returning from the mosque, he has met the appellant, who was a salesman at a shop situated near the mosque. The appellant was not a stranger to the victim as he has seen him previously working in the shop. When he was passing the shop, the appellant has asked the victim child to help him to take some boxes which were outside the shop. When the victim child obliged, he has forced him inside the shop and closed the door.

In his initial evidence, the victim child has stated that after closing the door, the appellant showed his male organ to him and he pushed open the door and ran away and informed his mother what happened.

However, upon questioning further, the victim child has stated that after showing the male organ to him, the appellant held him by his hands a