AJITH
VS
ATTORNEY GENERAL

COURT OF APPEAL
SISIRA DE ABREW. J
UPALY ABEYRATNE. J
CA 212/2003
HC AMPARA 725/2002
JULY 28, 29, 30, 2009

Kidnapping - Rape - Victim reliable witness or not? - Court should seek corroborative evidence - If not reliable? - Opinion of medical experts -Court to act on the opinion of the independent medical expert?

Held:

(1) If the prosecutrix in a rape case is not a reliable or believable witness, the evidence seeking to corroborate her story cannot strengthen her evidence. Court should seek corroborative evidence only if the prosecutrix is a reliable witness.

Per Sisira de Abrew. J:

"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".

(2) When opinions of medical experts are led in evidence and if one expert is not an independent witness, Court should act on the opinion of the independent medical expert and should not place reliance on the other expert.

APPEAL from the judgment of the High Court of Ampara.

Cases referred to:-

1. Sunil and another vs. Attorney General 1986 1 Sri LR 230

2. Gurcharan Singh vs. State of Haryane AIR (1972) SC 2661

3. Bhaginbhai Hiribai vs. State of Gujarat 1983 AIR SC 753

Dr. Ranfith Fernando for accused appellant.

Sctrath Jayamo.n.ne DSG for AG

July 30, 2009

SISIRA DE ABREW, J.

The accused-appellant in this case was convicted for kidnapping a girl named Samitha Jeevani Kumari Basnayake and was sentenced to a term of 5 years rigorous imprisonment and to pay a fine of Rs. 7500/- carrying a default sentence of 18 months rigorous imprisonment. He was also convicted for raping the said girl and was sentenced to a term of 10 years rigorous imprisonment and to pay a fine of Rs. 10,000/-carrying a default sentence of 2 years rigorous imprisonment. Being aggrieved by the said conviction and the sentence the accused-appellant has appealed to this Court. Facts of this case may be briefly summarised as follows:-

The accused-appellant was known to the prosecutrix in this case as he was a teacher of her school. On the day of the incident around 12.30 p.m. when the prosecutrix was returning home after a tuition class the accused-appellant dragged her to a lonely place in the jungle which is about 40 meters away from the road. Vide page 147 of the brief. He thereafter removed all her clothes including the vest and undergarment against her will. He removed his clothes as well. Thereafter the accused-appellant put the prosecutrix on the ground and committed sexual intercourse on her against her will. She stated that the place where the sexual intercourse was committed was a rough surface. After the incident she noticed bleeding from her vagina. Vide page 92 of the brief. According to her there were abrasions on her legs. Vide page 151 and 163 of the brief. It has to be noted, at the very inception, that although she says that there were abrasions on her legs, Dr. Herath and Dr. Gunasekera the Medical Officer and the District Medical Officer respectively did not observe abrasions on her legs when they examined her on the 24th of March (the following day of the incident). Although the prosecutrix complains that the sexual intercourse was committed on a rough surface it has to be

noted here that the doctors who examined the victim on the following day did not find any abrasions on her back side. Learned D. S. G., heavily relied on the evidence of Gunapala. According to Gunapala he saw the accused-appellant on the top of the body of the victim when he came to the place of incident to fetch water for his cows. At this time the accused-appellant was fully naked. The victim was wearing a skirt. Gunapala is an uncle of the victim. Although the victim says that accused-appellant dragged, removed her clothes, forcibly put her on the ground and committed sexual intercourse against her will, she did not