KUMARA

Vs.

ATTORNEY GENERAL

COURT OF APPEAL
WICKREMASINGHE, J.
DE SILVA, J.
CA/PHC/APN/64/2015
HC MONARAGALA 22/2010
JULY 10, 2018

Revision-Penal Code as amended by Act No. 22 of 1995, section 364(1)-Code of Criminal Procedure Act, No. 15 of 1979, sections 110(4), 167, 333(1), 359, 414(1)-Evidence Ordinance, section 32(2)  Rape-Delay in making the first complaint-Minor contradictions Corroboration-Perusal of Information Book extracts when writing the judgment-Rejection of dock statement

The petitioner was indicted in the High Court for committing rape. After conviction, he was sentenced to 10 years' rigorous imprisonment with a fine of Rs. 20,000 and was further directed to pay Rs. 100,000 as compensation to the prosecutrix.

The petitioner filed a revision application before the Court of Appeal on the grounds that the High Court Judge had: (i) failed to consider that the prosecutrix had made her first complaint belatedly; (ii) failed to consider a material contradiction with regard to a conversation between the prosecutrix and a witness; (iii) considered uncorroborated testimony of the prosecutrix contained in the Information· Book extracts when writing the judgment; and (iv) erred by concluding that the prosecution proved its case beyond reasonable doubt despite discrepancies in the prosecution case.

Held:

1. The prosecutrix had not delayed in making the first complaint as she had made the complaint to the police on the date of the incident itself and the Medico-Legal Report had been prepared just two days after the incident.

2. The High Court Judge was correct in disregarding a minor discrepancy in the narration of events by the prosecutrix and a

witness, as the evidence of the said witness corroborated the prosecutrix's narration on several facts. The discrepancies in the prosecution case were minor and did not go to the root of the case.

3. Corroboration in rape cases should not be stressed upon, especially when the legislature, by bringing in an amendment by Act No. 22 of 1995, has clarified that evidence of resistance such as physical injuries to the body is not essential to prove that sexual intercourse took place without consent.

4. It is unwise to interpret the term "trial" in a restrictive manner so that it is confined to the proceedings in the well of the court, as the legal process continues until the establishment of the guilt/innocence of the accused.

5. The consideration of the uncorroborated evidence of the prosecutrix by referring to the Information Book extracts by the High Court Judge was not a miscarriage of justice, as it was perused for the purposes of ascertaining whether the omissions in issue were indeed actual omissions, and Sri Lankan courts have consistently allowed trial judges to do so under limited circumstances if the judge is of the view that it could assist in arriving at an accurate decision.

6. The dock statement of the petitioner was correctly rejected by the High Court judge, as at no point in the trial did the defence take up the matters that were suggested in the dock statement.

Cases referred to:

1. Hewageganage Nihal Shantha v. Attorney General (CA/145/2014, CA Minutes of 05.04.2017)
2. Kamel Singh v. State of M.P. 1995 AIR 2472, 1995 SCC (5) 518
3. B. Bhoghinbhai Hirjibhai v. State of Gujarat AIR 1983 SC 753
4. Yodhasinghegedara Chandrasoma v. Attorney General (CA/87/2008, CA Minutes of 15.07.2015)
5. Lokesh Mishra v. State of New Delhi [CRL A 768/2010, decided on 12.03.2014]
6. Premasiri v. Attorney General [2006] 3 Sri LR 106
7. Keerthi Bandara v. Attorney General [2000] 2 Sri LR 245
8. Banda and others v. Attorney General [1999] 3 Sri LR 168
9. Kahandagamage Dharmasiri Bogahahena v. Republic of Sri Lanka (SC/APPEAL/04/2009, SC Minutes of 03.02.2012)

10. Galathu Aratchige Nimal Priyantha v. Attorney General (CA/312/2009, CA Minutes of 17.12.2014)
11. A.K.K. Rasika Amarasinghe v. OIC, Special Investiga