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SAVINDA VS. REPUBLIC OF SRI LANKA
2010 SLR 1 32
SAVINDA VS. REPUBLIC OF SRI LANKA
COURT OF APPEAL
SISIRA DE ABREW. J.
LECAMVASAM. J.
CA 212/2007
HC COLOMBO2848/2006
OCTOBER 28, 2009
NOVEMBER6, 9, 20, 2009
Penal Code - Section 364(4) - Rape -
Ingredients - Reasonable doubt - Charge should fail? Credible witness- Test of
probability-Compensation -default sentence in excess of 2 years -
validity?
The accused-appellant was convicted
for raping a woman inside a bus and was sentenced to 20 years R. I. and to pay
a fine of Rs.25,000/- carrying a default sentence of 2 years R. I., in
addition, he was ordered to pay a sum of Rs.500,000/- to the victim as
compensation carrying default sentence of 5 years R. I.
The respondents' position was that he had sexual intercourse with consent.
Held
(1) To establish a charge of rape,
the prosecution must establish the following ingredients.
(i) The
appellant committed sexual intercourse on the woman.
(ii) The said
intercourse was performed without her consent. If there is reasonable doubt in
one of the ingredients the charge should fail.
(2) The story of the prosecutrix that
sexual intercourse was performed Without her consent does not satisfy the test
of probability. The prosecutrix was not a credible witness.
Per Sisira de Abrew. J.
"In my view in a charge of rape
if the evidence of the prosecutrix does not satisfy the test of probability
and or the prosecutrix is not a credible witness, Court should reject
her evidence and acquit the accused" .
Held further:
(3) The default sentence of 5 years
R. I. is illegal since the maximum sentence that could be imposed for non
payment of compensation is two years.
Gayan Perera for accused-appellant Ayesha Jinasena SSC for Attorney General.
January 21,2010
SISIRA DE ABREW, J.
The accused appellant (the appellant)
in this case was convicted for raping a woman named Amarasinghe Mudiyanselage
Latini and was sentenced to a term of twenty years rigorous (RI) and to pay a
fine of Rs.25,000/- carrying a default sentence of two years RI. In addition
to the above sentence he was ordered to pay a sum of Rs.500,000/- to the
victim as compensation carrying a default sentence of five years RI. This
appeal is against the said conviction and the sentence. At the very inception
I would like to state here that the default sentence of five years RI is
illegal since the maximum default sentence that could be imposed for non
payment of compensation under Section 364(4) of the Penal Code is two years.
Facts of this case may be briefly
summarized as follows: Lalani, working in Katunayake, on 24.5.2005 boarded a
Colombo bound bus at Bodagama, her hometown in Thanamalwila police area in
order to come to Colombo. After
the bus was stopped at police
check point at Udawalawa, the driver of the bus, the appellant in this case,
requested her to come and sit on a small seat behind the driver's seat as she
could not continue to stand in the bus. She was, at this time, standing on the
foot board. She thereafter got off the bus, got in from the driver's door,
occupied the said seat and continued to be on the seat until she came to
Colombo. When passengers were getting off at Pattah, she requested him to open
the driver's door but he refused to do so as it would disturb the people
moving on the road. She says that the front section of the bus was separated
from the rear section of the bus by an iron fence and therefore she could not
go to the rear section and could not get off from the normal passenger door.
However she later says that she jumped over this fence. Vide page 89 of the
brief. The driver at this stage asked her to get off at Gunasingherpura which
is also in pettah. The driver did not stop the bus at Gunasinghepura but drove
to Bastian Maw
