IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an appeal in terms of 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.

The Democratic Socialist Republic of Sri Lanka.

Court of Appeal Case No.

CA/HCC/0041/2022 Complainant High Court of Gampaha Case No. HC/115/2017 Vs.

Dandeniya Arachchige Priyantha.

Accused AND NOW BETWEEN Dandeniya Arachchige Priyantha.

Accused-Appellant Vs.

Hon. Attorney – General, Attorney General’s Department, Colombo 12. Respondent BEFORE : MENAKA WIJESUNDERA, J WICKUM A. KALUARACHCHI, J COUNSEL : Senarath Jayasundera with Chathurangi Wedage and Rehani Chandrasiri for the Accused-Appellant.

Jayalakshi De Silva, SSC for the Respondent.

ARGUED ON : 05.08.2024 DECIDED ON : 12.09.2024 WICKUM A. KALUARACHCHI, J.

The accused-appellant was indicted in the High Court of Gampaha for committing grave sexual abuse of a girl below the age of 16 years on or about 02^nd June 2013 by inserting his tongue to the female genitalia of the victim and thereby committing an offence punishable under section 365B(2)(b) of the Penal Code. After trial, the learned High Court Judge convicted the accused by his Judgment dated 30.11.2021 and sentenced him for 10 years rigorous imprisonment and imposed a fine of Rs.25,000/- which carries a default sentence of 06 months simple imprisonment. Further, compensation of Rs.100,000/- which carries a default sentence of 01-year simple imprisonment was also ordered.

This appeal is preferred against the said conviction and sentence. Prior to the hearing, written submissions were filed on behalf of both parties. At the hearing of the appeal, the learned counsel for the appellant and the learned Senior State Counsel for the respondent made oral submissions.

In brief, the facts of the prosecution case are as follows:

At the time of the incident, the victim was a seven-year-old girl who had been living with her parents and three sisters in Ragama. She was fourteen years old at the time of giving evidence. On the day of the alleged abuse, which was a Sunday, the victim had attended “dhamma school” and came to her home around 11.30 a.m. After having her lunch, she had gone to the well, which was located near her house. According to the victim (PW-1), when she was near the well, the accused-appellant who was living in the adjacent land to the victim’s house had come to that place. The victim had just come out of the toilet and came near the well and she had not been wearing any clothes for her lower part of the body at that time. According to PW-1, at this instance, the accused had kissed the genital area of the victim using his mouth.

The learned Counsel for the appellant has raised following three grounds of appeal in his written submissions.

i. The learned Trial Judge had failed to evaluate the evidence properly and failed to apply the legal principles.

ii. The findings of the learned High Court Judge are not supported and contrary to the evidence of PW-1.

iii. Hon. High Court Judge had failed to evaluate the required legal elements of the offence of grave sexual abuse and convicted the appellant for the said offence.

Although the aforesaid grounds of appeal have been raised in the written submissions, at the hearing of the appeal, the learned Counsel for the appellant mainly relied upon a legal issue. He contended that due to the said legal issue, the conviction cannot stand. The legal issue that he raised is that the learned Judge who wrote the Judgment has never heard the evidence of the case and according to Section 283(1) of the Code of Criminal Procedure Act (CCPA), the Judgment shall be written by the Judge who heard the case. Since the learned High Court Judge who wrote the Judgment had never heard the case, the learned Counsel for the appellant contended that the conviction cannot stand.

Further written submissions have been filed on behalf of the responden