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. Kotagala Dhammarathana CA/HCC/ 0172/2020 High Court of Panadura Case No. HC/3440/2016 ACCUSED-APPELLANT vs.

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

P. Kumararatnam, J.

COUNSEL : Amila Palliyage with Sandeepani Wijesooriya, S.Udugampola and Subaj De Silva for the Appellant.

: Maheshika Silva, DSG for the Respondent.

ARGUED ON : 06/09/2023 DECIDED ON : 08/12/2023 *******************

JUDGMENT

P. Kumararatnam, J.

The above-named Appellant was indicted by the Attorney General under Section 365 B (2) (b) of the Penal Code for committing two counts of the offence of Grave Sexual Abuse on Weruphannadige Rasidu Ruckshan Fernando between the period of 05.10.2013 to 04.10.2014.

The trial commenced on 10/05/2019. After leading all necessary witnesses, the prosecution closed the case. The learned High Court Judge had called for the defence and the Appellant had given evidence from the witness box and closed the case.

The learned High Court Judge after considering the evidence presented by both parties before the High Court Judge, convicted the Appellant as charged and sentenced the Appellant as follows:

• 1st Count – 20 years rigorous imprisonment with fine of Rs.1000/-. In default three months simple imprisonment.

Ordered a compensation of Rs.100,000/- with a default sentence of

01-year rigorous imprisonment.

• 2^nd Count - 1^st Count – 20 years rigorous imprisonment with fine of Rs.500/-. In default three months simple imprisonment.

• The court further ordered the sentence imposed on 1^st and 2^nd counts to run concurrently.

Being aggrieved by the aforesaid conviction and the sentence the Appellant preferred an appeal to this Court.

The Learned Counsel for the Appellant informed this court that the Appellant has given his consent to argue this matter in his absence due to the Covid 19 pandemic. At the hearing, the Appellant 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, he had been about 17 years old when he faced this bitter ordeal. When he gave evidence, he was 21 years old. During the time period relevant to this case, when PW1 was attending some duties in the temple, the Appellant being a priest in the temple, called the victim to his room to give some bananas. On that pretext, when the victim went to the Appellant’s room, he had been sexually abused by the Appellant by firstly performing anal intercourse and secondly performing oral sex on him. When the Appellant performed the anal intercourse, the victim had felt severe pain. The victim further said that he only realised that he had been deceived when he went to the Appellant’s room.

There is an eyewitness to the incident. According to PW3, Sanjeewa Luckshan, he had seen the victim going into the Appellant’s room and after that he had seen the Appellant performing oral and anal intercourse on the victim. PW3 had witnessed the incident from a higher elevation. The investigating officer also confirmed that the inside of the Appellant’s room is clearly visible to the place from where PW3 had witnessed the incident.

Although it was painful, the victim had not shouted out.

After the close of the prosecution case, the defence was called, and the Appellant had given evidence under oath and called witnesses on his behalf.

The following Grounds of Appeal are raised on behalf of the Appellant:

1. The Learned High Court Judge has failed to consider the element of implied consent in the impugned judgment as the victim had admitted that he was 17 years of age at the time of the incident.

2. Even the medical evidence is suggestive of the consent of the part