Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of K. K. Wickremasinghe and K. Priyantha Fernando, JJ., allowed an appeal which was filed to set aside the judgment of High Court.
The accused-appellant was indicted in the High Court for committing grave sexual abuse in an offence punishable under Section 365B(2)(b) of the Penal Code, and after pleading not guilty he stood for trial and case was transferred to the High Court. The high court convicted the appellant for the charge and imposed four years of rigorous imprisonment and a fine of Rs 25,000. Being aggrieved by the said conviction and the sentence the appellant preferred this appeal. As per the prosecutrix she lived with her parents and her grandmother and one day when she came back from school she went to her grandmother’s house for having lunch which was 25-30 feet away from her house and while returning from there the accused invited her to his house, promising to give biscuits. After taking her inside he took her to the kitchen, where the appellant sat down on a chair put the small child who was in his hands on the floor and then he took the prosecutrix on to his lap and removed her skirt and the underpants, and placed his penis between her thighs and sexually abused her. The prosecutrix had run back to her grandmother’s house and informed the incident to her grandmother after which her grandmother yelled at the accused and then washed off the prosecutrix legs with water and white foamy liquid, thereafter a complaint was lodged by them against the accused.
The counsel for the appellant Anil Silva and AAL Isuru Jayawardhena contended that there was a belated complaint in the instant case, the High Court Judge failed to consider whether there was a reason for Mary Theresa to fabricate a case against the appellant and that the High Court Judge had misdirected himself as regards to the burden of proof. There were a number of contradictions in the statements given by the side of the prosecution.
The Court while allowing the appeal held that Court should not act on the sole testimony of a prosecutrix if it appears to be unreliable and inconsistent and as the prosecutrix was only 09 years old at the time of the incident and therefore, it is natural that there could be mistakes made by her in evidence. [Rathnayake Mudiyanselage Gnanasena Rathnayake v. Attorney General, C.A. Case No: CA-HCC-0070 of 2015, decided on 03-12-2019]