IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Application for Revision under and in terms of Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka. Hon. Attorney General, Attorney General’s Department, Colombo 12. Complainant Court of Appeal Case No. CPA 0003/2025 Vs.

High Court of Puttalam Case No. HC 195/2019 (Revision)

Mohamad Bazir Mohomad Asmil, No. 21/61, Western Saultern Road, Puttalam. Accused AND NOW BETWEEN Mohamad Bazir Mohomad Asmil, No. 21/61, Western Saultern Road.

Puttalam.

.

Accused-Petitioner Vs.

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

Complainant-Respondent Before: B. Sasi Mahendran, J.

Amal Ranaraja, J.

Counsel: D. Weerasuriya, P.C. with H. K. Malinda Tissera for the Accused-

Petitioner.

Wasantha Perera, D.S.G. for the Complainant-Respondent.

Supported on: 29.01.2025 Decided on: 17.02.2025

ORDER

AMAL RANARAJA, J.

1. The accused-petitioner (hereinafter referred to as the “Petitioner”)

has been indicted in the High Court of Puttalam in case no. HC

195/19. The charges in the indictment are as follows;

i. That on or about 17.10.2015, in the district of Puttalam, within the jurisdiction of this Court, the accused-petitioner has committed the offence of kidnapping, of a minor who was less than sixteen (16) years of age at the time, from her legal guardianship, an offence punishable under section

354 of the Penal Code.

ii. That in the course of the same transaction, the accused-

petitioner committed the offence of grave sexual abuse on the said minor who was less than 18 years of age by sexually gratifying himself by entering his male organ to the anus of the said victim and thereby committing an offence punishable under section 365(B)(2)(b) of the Penal Code as amended by Act No.22 of 1995, Act No. 29 of 1998 and Act No.16 of 2006.

iii. That in the course of the same transaction, the accused-

petitioner did commit rape on the said victim, and have thereby committed an offence punishable under section 364(2) of the Penal Code as amended by Act No.22 of 1995.

2. When the Court was ready to commence the trial, the petitioner has been summoned to the High Court of Puttalam. When the petitioner appeared before such Court, the indictment has been read and explained to him, also the petitioner was asked whether he is guilty or not guilty of the charges. The petitioner has pleaded not guilty. Thereafter, the trial has commenced and the prosecution witnesses examined. Among others, prosecution witnesses’ no’s 07, 16 and 18 have been examined. At the conclusion of the examination of prosecution witness no. 07, the complainant-respondent has sought permission of the High Court to replay in open Court the compact disk of a video recording of a preliminary interview of PW1 recorded by PW7 and another police officer to be given in evidence as per the provision set out in section 163A of the Evidence (Special Provisions) Act No.32 of 1999. The Learned Counsel for the petitioner has objected to permission being granted to the complainant-respondent on the following grounds;

a. That the general procedure of recording of statements of person acquainted with the facts and the circumstances of a criminal matter in a criminal investigation is laid down in section 110(1) of the Code of Criminal Procedure Act No.15 of 1979 (hereinafter referred to as the “CPC”) which states that such statement shall be reduced into writing. Therefore, it is certain and clear that there was no other manner/method or medium of recording of statements of persons acquainted with the facts and circumstances of a criminal matter under investigation, could be done as per the law in force.

b.That however, deviating from the above legal procedure of recording of such statements, the Evidence (Special Provisions) Act No.32 of 1999 introduced another special method of recording the statements of persons in cases of child abuse. That is by video recording of the interview/statements. It is s