Courts can accept belated complaints of sexual offences if justified, and vague timings do not invalidate otherwise substantial corroborative evidence.

MENAKA WIJESUNDERA J.

The instant appeal has been filed to set aside the judgement dated 25th of February 2022.

The accused appellant (hereinafter referred to as the appellant) has been indicted under sections 354 and 364(3) of the Penal Code committed during the period of 01/01/2011–31/12/2011 The appellant has pleaded not guilty and the prosecution has led the evidence of the victim, the mother of the victim, the police officers and the doctor. The accused when called upon to place his defense has made a statement from the dock. Upon the conclusion of the defence and the prosecution cases, the learned trial judge has convicted and sentenced the accused for both the charges in the indictment. Being aggrieved by the said conviction and sentence the instant appeal has been lodged.

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

1. The prosecution has not proved beyond reasonable doubt the period of the offence referred to in the indictment from the evidence of the victim

2. The doctor’s evidence is contradictory to the evidence of the victim

The victim has given evidence in court in 2018 and she had been 19 years of age. Her birth certificate had been marked by the prosecution and the date of birth in the said document had been recorded as 24^th October 1998. The doctor in the Medico Legal Report had said that on the 14^th of August 2013 her age had been recorded as 14 years therefore on the details in the medico legal report and the birth certificate during of the period stated in the indictment the victim has to be 12 years of age and not 13.

The evidence of the victim says that the appellant is an uncle and when she was 12 or 13 years of age, she had been raped by him but she had not told anyone because he had threatened her (pages 77, 86 of the brief) and the victim is unable to speak of a date, year or month. Moreover, she states that she was bleeding after the incident with the appellant (page 83), and that when she showed her mother the mother had not responded. She had complained to the police on the 11^th of August 2013. Essentially, the victim had been cross examined extensively and in her cross examination she says that apart from the instance when she had been raped by the uncle, she has had sexual intercourse with a person called Arosh in 2013 and that this incident led her to go the police on 11^th of August 2013 to lodge a complaint.

She has said that she consented to have sexual intercourse with Arosh because she wanted money to buy the season ticket to go in the bus to go to school, further providing that when she had gone to pluck tea leaves, that Arosh had been driving the lorry which has been collecting the tea leaves daily.

On her return from her interlude with Arosh she had been reprimanded by her brother and had been forced to divulge the incident.

The learned President’s Counsel for the appellant submitted that her evidence is not corroborated by the mother, the doctor or the brother. The brother had not been called as a witness. Furthermore, it is submitted that the doctor is contradicting her because the doctor had stated upon examining her virginal area; that she shows signs of a person who has had repeated instances of sexual intercourse.

It has been held in the case of Thimbirigolle Sirirathana Thero v OIC Police Station, Rasanayakepura , bearing No. 194/2015 “When a child is sexually assaulted by an adult, it is also natural for the victim’s family to think twice before making a complaint to the police. There can be adverse effects on the child when this kind of offence is exposed.”

As such in the instant case also the victim is living in a rural poverty stricken society where it is looked down upon on cases of sexual offences, which imposes a constraint on the victim of such matters to be silent of such abuse.

Therefore, the doctor’s statement with regard to the victim’s possible sexual experiences cannot be considered as a contradiction.

As such, I am unable to conclude that the doct