MENAKA WIJESUNDERA J.

The instant appeal has been filed to set aside the judgment dated 06.08.2015 of the High Court of Trincomalee.

The accused-appellant (appellant) had been indicted under sections 354 and 364(2) of the Penal Code. The appellant had pleaded not guilty and the prosecution had placed evidence against him. The appellant also had given evidence and had called witnesses.

Upon the conclusion of the trial, the learned trial judge had convicted the appellant for both counts in the indictment and had sentenced accordingly.

The instant appeal has been lodged against the said conviction and sentence.

The grounds of appeal raised by the counsel for the appellant are as follows,

1) The charge being defective,

2) The prosecution has not proved their case beyond a reasonable doubt.

The charge being defective

The counsel for the appellant stated that since the charges in the indictment have been framed on the basis of a time period, it is against the legal basis set out under section 165(1) of the Code of Criminal Procedure where the details of a charge has been defined.

The said section has specified that the particulars of the charge should include the time and place of the offence, but the instant indictment has no specific time but a time period.

The Counsel for the appellant went on to quote a few judgments, including one of mine (CA-HCC-0007-2024 decided on 10.9.2024) where it has been held that in a charge a specific date has to be mentioned.

But as I have very clearly dealt with the said issue in the judgment quoted above, I do not wish to go in to the same issue.

The prosecution not proving its case beyond a reasonable doubt.

The story of the prosecution unfolds with the evidence of the victim, who had been born in 1990 and at the time of the incident she had been between 15 and 16 years of age.

She had said at the very outset that the incident took place in 2006 but when the state counsel suggested to her that it was in 2005, she had agreed and had based her evidence to that year, during her evidence.

In cross-examination, she had said that she had complained to the police in July of 2007 and to a suggestion made by the defense, she had said that it has happened in 2006. Hence, her evidence with regard to the time period during which the offence took place is subjected to doubt (pages 295 and 297 of the brief).

According to her evidence, she had met the appellant while going to her extra classes in school (page 445 of the brief) and she has started a love affair with him and she alleges that on three occasions she has had sexual intercourse with him but she had not told anyone (at pages 300-304, 306,309 and 310of the brief).

The appellant had been working in the Pradeshiya Sabha in Trincomalee during this time.

The third instance of sexual intercourse had been at her cousin’s place, who had given evidence in the trial (pages 326 and 327 of the brief).

After the third time, she had missed her menstrual cycle twice and she had not been feeling quite right. As such, she had told the appellant and then he had given her some pills but that had not worked and she had continued to feel sick (pages 331 and 333 of the brief).

Then he had suggested to her that they may get the fetus aborted to which she had reluctantly agreed and she got it aborted with her cousin’s help (pages 77 and 78 of the brief). Her parents had not known but one day the cousin has had an argument with the victim’s mother, and the cousin had told the parents of the victim and then only the parents had got to know of the entire incident. ( page 436 and 447 of the brief ).

Thereafter, the parents had confronted the appellant and had tried to get him to marry her whilst he had not done so.

Therefore, the instant complaint had been lodged on 03.07.2007. The cousin and the parents of the victim had given evidence and they had corroborated the victim (pages 337-391, 393 and 394, 422-424, 427, 433, 450 and 457 of the brief).

The doctor who had examined the victim had done so in Jul