IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal made under 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.

Court of Appeal Case No. Wannige Priyantha Wijebandara alias CA/HCC/ 0342/2018 Dany Priyantha High Court of Monaragala Case No. HC/55/2017 ACCUSED-APPELLANT vs.

The Hon. Attorney General Attorney General’s Department Colombo-12 COMPLAINANT-RESPONDENT BEFORE : Sampath B. Abayakoon, J.

P. Kumararatnam, J.

COUNSEL : Niroshan Mihidukulasuriya for the Appellant.

Anoopa de Silva, DSG for the Respondent.

ARGUED ON : 31/01/2023 DECIDED ON : 17/03/2023 *******************

JUDGMENT

P. Kumararatnam, J.

The above-named Appellant was indicted by the Attorney General under Sections 354 and 365 B (2) (b) of the Penal Code for committing the offence of Kidnapping from lawful guardianship and Grave Sexual Abuse on Kankanam Kapuge Tharushika on 02/06/2013.

The trial commenced on 12/02/2018. After leading all necessary witnesses, the prosecution closed the case. The learned High Court Judge had called for the defence and the Appellant had made statement from the dock and closed his case.

The learned High Court Judge after considering the evidence presented by both parties before him and his predecessor, convicted the Appellant as charged, and sentenced the Appellant to 05 years of rigorous imprisonment and imposed a fine of Rs.5000/- subject to a default sentence of 03 months simple imprisonment for the first count.

For the second count the Appellant was sentenced to 12 years of rigorous imprisonment and imposed a fine of Rs.5000/- subject to a default sentence of 06 months simple imprisonment.

In addition, a compensation of Rs.300000/- was ordered with a default sentence of 03 years rigorous imprisonment. The Learned High Court Judge had further ordered the sentences imposed on count one and two to run concurrent to each other.

The Learned Counsel for the Appellant informed this court that the Appellant has given consent to argue this matter in his absence due to the Covid 19 pandemic. During the argument he was connected via Zoom platform from prison.

The Facts of this case albeit briefly are as follows.

According to PW1 - the victim of this case, she had been about 08 years old when she faced this bitter ordeal. When she gave evidence, she was 12 years old and was schooling. The victim and her other two siblings had been staying with the grandparents at the time of the commission of the offence as her father had deserted the family when she was a small girl. Her mother was suffering from a mental illness. Hence, the children were looked after by the grandparents.

In the afternoon on the day of the incident, being a school holiday, when the children were playing, the Appellant had called the victim from a distance to take an axe to the village temple. At that time, the grandparents were not at home as they had gone for employment. When the victim went near the Appellant to collect the axe, the Appellant forcibly held her and had taken under a nearby tree, made her lie on the ground on his sarong laid under the tree. After removing the skirt and the pair of shorts of the victim, the Appellant had kept his male organ between her legs close to her vagina and committed grave sexual abuse on her. Although she resisted, she could not escape from the captivity of the Appellant. The victim was freed after having seen the approach of somebody. She had divulged this incident to her grandmother when she came home after two days. By this time, someone had given an anonymous called to the police under emergency number 119. The JMO who had examined the victim had opined that the examination findings of genital area are consistent with alleged sexual abuse involving genital area.

After the closure of the prosecution’s case, the defence was called, and the Appellant had given statement from the dock and close