SAMAN KUMARA
VS
REPUBLIC OF SRI LANKA

COURT OF APPEAL
SISIRA DE ABREW. J
UPALY ABEYRATNE. J
CA 29/04
HC RATNAPURA 107/2002
JULY 7, 2009

Evidence Ordinance Sectionl20 (2), 120 (3) - Penal Code 363 (a) -Rape-Both get married - Convicted - Prosecutrix wife of accused? - Is the prosecutrix a competent witness to give evidence against the accused - Does Section 120 (3) apply when sexual intercourse is performed on his wife by the husband? - Marriage Registration Ordinance Section 19, Section 42 - Criminal Procedure Code, Section 607.

The accused - appellant was convicted for raping a girl. Two years after the incident both of them got married. The trial Judge concluded that, the prosecutrix was a competent witness to give evidence.

It was contended that, the prosecutrix being the wife of the accused is not a competent witness, and the trial Judge had used illegal evidence to convict the accused.

Held:

(1) It cannot be concluded that sexual intercourse was performed by the accused on the prosecutrix without her consent.

(2) To call the wife of the husband under Section 120 (3), it should be proceedings instituted against the husband for caus