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.

Court of Appeal No: Democratic Socialist Republic of Sri Lanka CA/HCC/0046/22 COMPLAINANT High Court of Panadura Vs.

Case No. HC/3536/2017 Liyana Arachchige Lesli Wijesekara alias Liya Arachchige Lesli Wijesekara No. 83/1, Koslanda, Halthota.

ACCUSED AND NOW BETWEEN Liyana Arachchige Lesli Wijesekara alias Liya Arachchige Lesli Wijesekara No. 83/1, Koslanda, Halthota.

ACCUSED-APPELLANT Vs.

The Attorney General, Attorney General’s Department, Colombo 12.

RESPONDENT Before : Sampath B. Abayakoon, J.

: P. Kumararatnam, J.

Counsel : Ershan Ariaratnam for the Accused-Appellant : Chathurangi Mahawaduge, S.C. for the Respondent Argued on : 26-06-2023 Written Submissions : 23-06-2023 (By the Respondent)

: 05-07-2022 (By the Accused-Appellant)

Decided on : 13-09-2023 Sampath B. Abayakoon, J.

This is an appeal by the accused-appellant (hereinafter referred to as the appellant) being aggrieved by his conviction and the sentence of the learned High Court Judge of Panadura.

The appellant was indicted before the High Court of Panadura for having committed an offence punishable in terms of section 365B(2)(b) of the Penal Code, as amended by Penal Code (Amendment) Act No. 22 of 1995, 29 of 1998 and 16 of 2006. The allegation against the appellant was that he touched the vaginal area of a minor at or about 06-02-2016 in a place called Madampe for sexual gratification.

After trial, the appellant was found guilty as charged by the learned High Court Judge of Panadura of his judgement dated 19-11-2021, and was sentenced to a period of 7 years rigorous imprisonment. He was ordered to pay a fine of Rs. 1500/- and in default, a sentence of 3 months simple imprisonment was imposed. In addition to the above, he was ordered to pay Rs. 100000/- as compensation to the victim child and in default, he was sentenced to a period of

6 months rigorous imprisonment.

The Facts in Brief The facts that led to the conviction and the sentence can be summarized in the following manner.

The victim child (PW-01) had been a child of about 5 years of age at the time relevant to this incident. The prosecution has relied on the provisions of section 163A of the Evidence Ordinance as amended by Evidence (Special Provisions) Act No. 32 of 1999, to produce a video recorded interview of the victim child as the evidence-in-chief of the child at the trial.

It is born out of the case record of the High Court that before leading such video evidence, the prosecution has taken steps in terms of section 7 (1) of the Evidence (Special Provisions) Act No. 14 of 1995 and had given due access as required to the appellant in terms of the said section before the trial commenced. With the permission of the Court, the video recording of the interview conducted with the child has been played in open Court and the learned State Counsel who prosecuted the matter has only asked questions from the victim child to determine the identity of the person mentioned by the child at the video interview as the person who committed the sexual abuse on her. The child has identified the person named Raalahami in her interview, as the appellant, who stood indicted before the High Court.

In her video interview, the child has stated that on the day of the incident, her mother and father was at work and she was with her grandmother. She was a Montessori student at that time. It has been her evidence that while they were at home in the night, Raalahami came, and at that time, she was alone with her grandmother. At that time, she was in the living area of the house but had subsequently stated that she was sleeping in her room and her grandmother was in the living area. It had been her statement that after coming into the room, the person called Raalahami touche