SAIBU
vs.
ATTORNEY GENERAL

COURT OF APPEAL
H.N.J. PERERA J.
JAYATILEKE J.
CA 2568/2008
CA 106/2012
OCTOBER 28, 2014

Penal Code - Section 265 B[2] amended by Act 22 of 1995- 29 of 1998- Offence of child abuse -Failure of trial judge to analyze the evidence- fatal? Mens Rea- Actus Reus- Sexual molestation - abuse - No reason for excuse once the physical act has taken place ?

The accused-appellant was convicted and sentenced for committing the offence of child abuse. The accused appellant contended that the evidence of the victim does not support the charge leveled against the accused - appellant. It was contended that, what is mentioned in the charge is that by using accused appellant's organ on the victim's thigh area - but according to his evidence, the accused-appellant had placed his organ on the back of the victim- implying that the accused-appellant had used the rectum of the victim.

Held:

(1) It is a subtle point whether it is the intention or the desire that charges a man to commit a sexual offence. Unlike in criminal offences, the sexual act that is 'Actus Reus' itself speaks about the 'Mens Rea' of the crime unless an offender has any other reason for excuse-but when it comes to the offence of child abuse- there is no reason for excuse once the physical act has taken place.

(2) When the victim's evidence and the medical evidence are considered together it is obvious that the physical act that had taken place was the 1st method and inserting the penis between the two thighs in which there is no room or possibility of causing injuries and or pain and accordingly there is no clash between the charge sheet and  prosecution evidence.
 
(3) Although there was no judicial evaluation of evidence, trial judge on the evidence led could not have arrived at any other conclusion other  than the conclusions reached by him.

(4) Mistakes of technicality made by a trial judge shall not result in invalidating the conclusions unless such mistakes have led to the miscarriage of justice.

Per Jayatileke. J.

"It is a common allegation that we have expressed in the Criminal Court of Appeal that judgments of the High Court Judges are only mere narrations of 

the evidence and they make no effort to analyze and evaluate the facts and the circumstances. We too have noticed that often they don't refer to the premises by which they come to the conclusions".

APPEAL from the judgment of the High Court of Batticaloa.

Cases referred to :

1. Premadasa vs. AG 2009 2 Sri LR 205
2. Fradd Vs. Brown and company Ltd. 20 NLR 282
3. Dharmasiri vs. Republic of Sri Lanka 2010 2 Sri LR 241
4. Alwis vs. Piyasena - 1993 1 Sri LR 119
5. Sri Co-operative Industries Federation Ltd vs. Kotalawala 2009 2 Sri LR 241
6. AG vs Mary Theresa

Dharshana Kuruppu for accused-appellant.

Dilan Ratnayake SSC for AG

cur.adv.vult.

March 30, 2015

P.W.D.C. JAYATHILAKE. J.

Burhan Mohomod Saibu, the Accused Appellant was indicted for committing the offence of child abuse, punishable under Section 365 B (2) (b) of the Penal Code amended by Acts No. 22 of 1995 and No. 29 of 1998. He was convicted after trial and sentenced to 10 years' rigorous imprisonment, and imposed a fine of Rs. 10,000/= carrying a default sentence of six months simple imprisonment. He was ordered to pay Rs. 50,000/= to the victim child carrying a default sentence of one year's simple imprisonment. Being aggrieved with the conviction and the sentence, the Accused Appellant has preferred this appeal to this court.

The Accused Appellant had been a person of 43 years, married and having one daughter by April 8th of 2005. His wife had gone abroad twelve

years ago. He was living alone in a small house about 5, 6 meters from the house where his parents were living. He had a plantation of sugar cane.

Lafir lrfan, 8 year old student had been playing cricket with his friends near the Accused appellant's land. When his friend