SUMITH KUMARA VS. ATTORNEY GENERAL

SUMITH KUMARA
VS.
ATTORNEY GENERAL

COURT OF APPEAL
IMAM, J.
SARATH DE ABREW, J
CA 57/2004
HC GAMPAHA NO. 96/2003
NOVEMBER 5, 2007
JANUARY 21, 29, 2008

Penal Code - as amended by Act, No 22 of 1995 - Sections 354,363(e) - Kidnapping - Rape-Minor- Is it unsafe to convict in the absence of corroboration ? - Delay in making complaint - Could it be acted upon? - Alibi - Evidence Ordinance Section 157- Victim's statement admissible when? Dock Statement isnt?

The Appellant was indicted for having kidnapped a minor - under 16 years - S - for having committed rape on S in the course of the same transaction - The accused was convicted and sentenced on the Second Count of Rape.

In Appeal it was contented that it was unsafe to convict the accused in the absence of corroboration - that the complaint is belated - that there are omissions and contradictions.

Held:

(1) Overdue importance cannot be given to minor discrepancies. Discrepancies which do not go to the root of the matter and shake the basic version of the witness, therefore cannot be attached with undue importance.

(2) Contradiction is not the 'sine qua non' for a conviction in a Rape case.

Per Imam, J.

"In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury Why should the evidence of the girl or the woman who complains of Rape or sexual Molestation be viewed with the aid of the spectacles filled with lenses tinged with doubt, disbelief or suspicion. To do so is to justify the charge of a male chauvinism in a male dominated society."

(3) Delayed witness evidence could be acted upon if there were reasons to explain the delay Although the complaint of the Prosecutrix is belated, there is a reason that she was waiting for the accused to marry her which he did not.

Per Imam . J.

"On account of stigma which gets attached after the commission of the offence of Rape, which would seriously jeopardize the chances of getting married in decent circumstances, the victim and their relatives are often thoroughly unwilling to come forward with reports of the offences"

(4) The Medical evidence is that when the Doctor examined the victim she was 11 weeks pregnant That is well within the period during which the incident is supposed to have taken place This can be considered a piece of circumstantial evidence, corroborative of her story, but does not establish the identity of the Accused The charge of statutory rape has been proved beyond a reasonable doubt. The victim a minor (15 years of age) - consent was immaterial.

APPEAL from a Judgment of the High Court of Gampaha

Cases referred to:

(1) In Re Anthony 1960 GLJ 927 Vol. 61 CM 326
(2) Bharwada Borgin Bhai Harigi Bhai Vs State of Gujarat 1983 AIR 1952 SC 54
(3) Tennakoon Vs. Tennakoon 78 NLR 13
(4) Queen Vs. Pauline de Cross 71 NLR 169

Dr. Ranjit Fernando with Ms. Chanya Perera for the Accused Appellant

Sarath Jayamanne, DSG for the Hon. Attorney General

May 27, 2008.
Imam, J.

This is an Appeal tendered by the Accused-Appellant [hence forth sometimes referred to as the "Appellant"] seeking to set aside the Judgment of the learned High Court Judge of Gampaha dated 15.07.2004 and that the Accused- "Appellant" be acquitted of the charge in the Indictment as set out in paragraph 1 and 2 of the prayer to the Petition respectively.

The facts of the case are briefly as follows The "Appellant" was indicted on 28.05.2002 with having committed the following offences -

1. For having Kidnapped Hettiarachchilage Nirosha Sarojani a minor under 16 years of age from the lawful custody of Hettiarachchilage Soorasena between 25.05.1996 and 25.11.1996 at Pinnamada within the jurisdiction of this Court, an offence punishable under Section 354 of the Penal Code.

2. For having committed rape on the said Hettiarachchilage Nirosha Sarojani a minor who was under 16 years

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