IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.

The Democratic socialist Republic of Sri Lanka Complainant Vs.

Jeyarasa Sajeevan Accused Court OF Appeal Case No.

CA HCC 189/2020 High Court of Vavuniya Case No: And Now in Between HCV 2834/2019 Jeyarasa Sajeevan Accused – Appellant Vs.

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

Before : Menaka Wijesundera J.

B. Sasi Mahendran J.

Counsel : Anil Silva, P. C with N.M. Shaheed and Amaan Bandara for the Accused-Appellant.

Azvard Navavi, S. D. S. G. for the State.

Argued on : 26.09.2023 Decided on : 26.10.2023 MENAKA WIJESUNDERA J.

The instant appeal has been lodged to set aside the judgment dated 01.07.2020 of the High Court of Vavuniya.

The accused appellant (hereinafter referred to as the appellant)

had been indicted for kidnapping, rape and grave sexual abuse of a girl under 16 years of age.

The appellant had pleaded not guilty to the indictment and upon the conclusion of the trial the learned trial judge had convicted the appellant for the charges of kidnapping and grave sexual abuse and had acquitted him of the charge of rape.

The grounds of appeal by the Counsel for the appellant were that, 1) The indictment being defective on the ground of preferring charges of grave sexual abuse and rape in the same indictment.

2) The prosecution altered the charge of grave sexual abuse to suit the evidence and there by caused prejudice to the appellant.

3) The prosecution story being incredulous there by being improbable.

The learned Counsel for the appellant submitted that the charge of grave sexual abuse was altered after the victim has been concluded and the doctor also has given evidence and has been cross examined, and he further submitted that the charge was altered to fit the evidence of the victim in Court and thereby it caused grave prejudice to the appellant.

On perusal of the case record we observe that the charge of grave sexual abuse has been altered upon the conclusion of the victim’s evidence and the evidence of the doctor. But we observe that the trial judge had read over the charge to the appellant and had proceeded to trial. But the Counsel appearing for the appellant has not made any application to recall any of the witnesses who has been led.

Hence the question arises that, if there is no specific application to recall any witness after the alteration of the charge is it the duty of the judge to do so in the absence of such application.

The provision relating to the alteration of a charge in an indictment is at section 167 of the CPC and according to which the indictment can be amended until the judgment is delivered. But under 167 (2) it says if the charge has been so altered the altered charge has to be read over to the accused which in this case has been done by the trial judge.

But under section 171 of the CPC the Court shall allow the defense and the prosecution to recall witnesses if an application is made to that effect.

Hence according to the above section if the defense or the prosecution makes an application to recall the witnesses after an alteration of the charges in the indictment the Court has to allow the same, but in this instant no such application has been made.

Hence it is the opinion of this Court that the trial judge had followed the procedure which is incumbent on him but the Counsel for the appellant has not played his part for reasons best known to him.

Hence, we are unable to agree that it caused any prejudice to the appellant and even after the amendment the appellant has given evidence from the box and he had completely denied the allegation.

The Counsel has further submitted that the prosecution has altered the charge to suit the evidence which transpired in Court but with this submission also we are unable to agree because according to section 167 (1) of the CPC a charge in an indictment can be altered until the judgment is delivered.

Another ground of appeal raised by the counsel for the appellant is that when a ch