Sampath B. Abayakoon, J.

This is an appeal by the 1st accused-appellant (hereinafter referred to as the appellant) on the basis of being aggrieved by the conviction and the sentence of him by the learned High Court Judge of Vavuniya.

The appellant, along with the 2^nd accused indicted was indicted before the High Court of Vavuniya for committing the following offences.

(1) That the appellant, having ganged up with the 2^nd accused named, committed rape on the female mentioned in the indictment, on or about 29-05-2011 at Nelukulam within the jurisdiction of the High Court of Vavuniya, and thereby committed the offence of gang rape described in section 364(2)(g) of the Penal Code as amended by the Penal Code (Amendment) Act No-22 of 1995, 29 of 1998 and 16 of 2006, punishable in terms of section 364(2) of the same.

(2) At the same time and at the same transaction, the 2^nd accused indicted ganged up with the appellant and committed rape on the female mentioned in the indictment, on or about 29-05-2011 at Nelukulam within the jurisdiction of the High Court of Vavuniya, and thereby committed the offence of gang rape described in section 364(2)(g) of the Penal Code as amended by the Penal Code (Amendment) Act No-22 of 1995, 29 of 1998 and 16 of 2006 punishable in terms of section 364(2) of the same.

As the 2^nd accused indicted has absconded the Court, the trial has proceeded against him in his absence under the terms of section 241 of the Code of Criminal Procedure Act.

At the Conclusion of the trial, the learned High Court Judge of Vavuniya of his judgment dated 02-08-2022 found the appellant guilty of the 1^st count preferred against him while the 2nd accused was found guilty of the 2nd count.

Accordingly, the appellant has been sentenced to a period of 10 years rigorous imprisonment, and to a fine of Rs. 5000/-, with a default sentence of one- month rigorous imprisonment.

He has also been ordered to pay compensation in a sum of Rs. 500,000/- to the prosecutrix, and in default of paying the said amount, to serve a period of two years rigorous imprisonment.

The 2^nd accused indicted has also been imposed a similar sentence, and an open warrant has been issued against him.

The Facts in Brief

According to the evidence of the prosecutrix (PW-01), she was 18 years of age when she had to face this incident on 29-05-2011. She has been a 30-year-old married mother of one child by the time she has given evidence before the High Court. On the day in question, she has left her home to attend the church service, and had boarded a bus around 1.30 in the afternoon to return home. After reaching Nelukulam area where she lived, she has alighted from the bus near the 7th lane. Her home is situated about a kilometer away on that lane.

She has stated that after getting down from the bus she went to the Mohan’s shop to buy some things but changed her mind and set out to go home. While she was walking towards her home, a red colour three-wheeler driven by the appellant has come and the appellant along with the 2nd accused indicted who was in the rear seat of the three-wheeler has forced her into the three-wheeler.

Once she was taken into the vehicle, they have told her that they will take her home, but has tied her face with a shawl. She has fallen unconscious soon thereafter. When she was awakened, she has observed that she is in a dense jungle area and has seen the two persons who took her standing near her.

Initially, she has stated that when she regained consciousness there was bleeding from her vagina, but has later described the incident stating that the appellant and the other person, referring to the 2nd accused indicted, removed her clothes and had sexual intercourse with her without her consent. She has also stated that she saw the 2^nd accused filming her being raped by the appellant using his mobile phone. She has stated further that afterwards, she got dressed and traveled with the two persons in the same three-wheeler in order to get back home, and has sta