New Page 1

CHAMINDA VS REPUBLIC OF SRI LANKA

COURT OF APPEAL
SISIRA DE ABREW.J
ABEYRATNE.J
CA 248/2007
HC MATARA63/2005
OCTOBER 13, 2009

Rape - Ingredients? - Subsequent conduct - Test of probability - Impugning a Judicial record - Contradiction of the record - Demeanour - Testimonial trustworthiness - Primmy facts.

Held:

(1) In order to establish a charge of rape, the prosecution must prove that (1) the accused performed sexual intercourse on the woman (2) the accused did the above sexual act without her consent beyond reasonable doubt. When one considers the subsequent conduct of the prosecutrix it does not satisfy the test of probability. It raises a reasonable doubt whether there was consent, and the 2nd ingredient has not been proved beyond reasonable doubt. The accused-appellant was convicted of raping a woman named L. The contention of the accused-appellant was that, he performed sexual intercourse on the woman with her consent.

(2) A litigant is not entitled to impugn a judicial record by making a convenient statement before the Court of Appeal.

(3) An appellate Court will not lightly disturb the findings of a trial judge who had come to a favourable finding with regard to testimonial trustworthiness of a witness whose demeanour and deportment had been observed by the trial judge. Findings of primary facts by a trial judge who hears and sees witnesses are not to be lightly disturbed on appeal.

Per Sisira de Abrew. J.

"When a judge who after observing demeanour and deportment of witness decides to convict an accused person in a criminal case and if his decision is proved to be wrong, Court of Appeal should interfere with such decision".

APPEAL from a judgment of the High Court of Matara.

Cases referred to:-

1. OlC Ampara PoliceStation us. Bamunusinghe Arachchige Jayasinghe CA37/98 HC (PHC)APN38/98 CAM8.9.98

2. Gunawardane us. KeUart 48 NLR52

3. Alwis us. Piyasena Fernando 1993 1 Sri LR 119

Kapila Suriyaarachchi with Anuradha Bandara for accused-appellant

V. K. Malalgoda DSG for Attorney General.

Cur. adv. vult

November 9,2009

SISIRADEABREW. J.

The accused appellant (the appellant) in this case was convicted for raping a woman named Thanuja Lakmali and was sentenced to a term of eighteen years rigorous imprisonment (RI) and to pay a fine of Rs. 1000/ - carrying a default sentences of three months RI. Being aggrieved by the said conviction and the sentence the accused appellant has appealed to this court.

According to the prosecution case the appellant entered the house of the prosecutrix's through the roof of her house and raped her. The appellant had removed the glass sheet placed on the roof and entered the house. At the time of the  incident her husband was not at home since one or two days prior to this date he had gone to Deniyaya to do his usual work.

The appellant, in his evidence, admitted that he performed sexual intercourse on the woman with her consent. According to the appellant this was the 4th time that he performed sexual intercourse on her. On all four occasions he, with her consent, performed sexual intercourse. He takes up the position that on all four occasions he came through the roof in the night after removing the glass sheet on the roof. It was not difficult, according to the appellant, to

come through the roof as there was a table right under the place where the glass sheet was kept. He climbs the orange tree adjacent to the roof and comes to the roof. According to the appellant who was living in the neighborhood of the prosecutrix when he met her on 22.10.2000 around 12.00 noon, she invited her to come around 9.00 p.m. as her husband was not at home. She further instructed him to tap twice on the door and if she did not wake up to enter the house as he previously did (through the roof). However he told her that he would not come around 9.00 p.m. as he would be watching the match and would come late in th

Click Here to Read the rest of this document